Cox v. State
| Decision Date | 09 December 1975 |
| Docket Number | No. 1--275A33,1--275A33 |
| Citation | 338 N.E.2d 319,167 Ind.App. 168 |
| Parties | Ivan COX, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Michael C. Williams, Winchester, for appellant.
Theodore L. Sendak, Atty. Gen., Lawrence B. O'Connell, Deputy Atty. Gen., Indianapolis, for appellee.
This is an action by the State of Indiana brought by information against the defendant-appellant Ivan Cox (Cox) for entering the business house owned by Glen Morton with intent to commit a felony therein, 1 in that Ivan Cox intended to unlawfully and feloniously take, steal and carry away certain goods, chattels and property of Glen Morton.
Cox was tried by the court without the intervention of a jury, found guilty as charged and after pre-sentence investigation was committed to the custody of the Indiana Department of Corrections for an indeterminate period of not less than one nor more than five years.
Cox timely filed his motion to correct errors which sets forth two specifications, namely, (1) the decision of the court is contrary to law and (2) the decision of the court is not supported by sufficient evidence upon all the necessary elements of the crime.
Cox has grouped the two legal questions raised by the two specifications of error under one argument as provided by Indiana Rules of Procedure, Appellate Rule 8.3(A)(7), and we shall so treat them in this opinion.
The facts most favorale to the State of Indiana are as follows:
On January 21, 1974, Eric Passmore was driving his automobile with his girl friend There is evidence that a tape recorder was blasting out of rear end speakers and that Bowers had to lean up and tell Passmore what he wanted and that none of the other passengers could hear what was said and had no knowledge of why Passmore stopped at the laundramat. Cox testified he did not hear anything because of the noise from the tape player.
Sue Engle, and Delbert Bowers and Cox as passengers from Winchester to Lynn, Indiana. Bowers told Passmore to go to the laundramat in Lynn, as he wanted to get some money. Passmore knew Bowers was going to break into a pop machine as he knew that Bowers had done so before.
The laundramat owned by Glen Morton sets on the same lot as Morton's residence and can be viewed therefrom. Mrs. Trudy Morton, Glen's wife, operates the laundramat and she saw on that date at about 5:30 P.M. a car containing suspicious looking characters drive up and brake beside the laundramat. She recognized Sue Engle, who lived in Lynn, as an occupant who got out of the car.
Trudy Morton immediately went to the laundramat where she entered the front door into one long room with a dry cleaning room off to the right and a coke room located immediately beyond the dry cleaning room. There was a large window between the coke room and the dry cleaning room from which you can see from the dry cleaning room into the coke room without the persons in the coke room being capable of observing you in the dry cleaning room. It is not a one way mirror, but has a register effect over it as a security window.
Mrs. Morton, after entering the building, went into the dry cleaning room where she could not be seen and could observe through the window between it and the coke room and saw a 'long haired, red headed guy' standing next to the machine and 'the other guy was into the machine getting the coke box where the money is out of the machine.' The door on the coke box had been opened so that the other person had room to have his hands in the same. The coke machine is locked so it is necessary to have a key to open it without forcing the lock. The coke box was locked before the four people above mentioned entered the building and although Mrs. Morton did not see the box unlocked or forced open, it was open as above stated.
Mrs. Morton testified that while looking through the security window she recognized a person who she later learned was Ivan Cox (defendant-appellant herein). She said he was back in the coke room at the time she was looking through the security window and was the one who had his hand in the box where the money was and had the box part way out.
In order to stop this theft Mrs. Morton had to leave the dry cleaning room to go around to another door to the coke room and when she arrived in the coke room she saw the 'long haired, red headed guy and that guy' (Cox) walk away from the machine and saw a boy at the door who said 'Here she comes.' She did not know this look-out boy and would be unable to recognize him if she saw him. Sue Engle was still in the laundramat at this time.
Mrs. Morton backed Bowers and Cox against the wall and told them to give themselves up and the 'red headed guy' disclaimed any action with the coke machine and Cox said to her that she couldn't prove it.
In the meantime these persons were edging toward the door to the laundry room and Mrs. Morton stopped in the door to block it and told a lady in the laundramat to call her husband or the police, at which time Cox broke loose from Mrs. Morton and knocked her out of the way. In his attempt to get out of the laundramat he was blocked by a customer who he threatened to hit and she permitted him to leave the building.
The original four passengers got into the car and left. Mrs. Morton secured the license Sue Engle testified when she went in the back room, which was the coke room, that Delbert Bowers and Ivan Cox were there and she did not know if Eric Passmore was there. She was asked the following questions to which she gave the following answers:
number and the car was owned by Passmore.
'Q. What was Delbert and Ivan doing in the back room?
A. Trying to get the pop machine open.
Q. Did either one of them say anything to you?
A. No.
Q. Didn't say anything to you at all?
A. When I was back there, they wanted me to open it, but I didn't.
Q. How did you know what they were going to do?
A. Because they kind of talked about it when they was in there.
Q. Were you ever asked to be a lookout?
A. Yes.
Q. While they were breaking into this coin-coke machine?
A. Yes.
Q. Who asked you?
A. It was Ivan or Delbert.
Q. You don't recall which one?'
(The court asked the witness what her answer was, to which she answered 'It was Ivan or Delbert' and that she did not recalll which one.)
Q. Did anyone ask Eric if he would be a look-out?
A. I think so.
Q. Do you recall who asked him?
(No audible answer.)
Q. Did you in fact go out to look out to see if anyone was coming? Where was Eric?
A. I think he was in the back of the back room standing by one of the dryers or whatever you call them.'
Ivan Cox, on cross examination, was asked the following questions to which he gave the following answers:
'* * *
'Q. Delbert and you and Eric were in the back room? Sue was out front?
A. Yes.
Q. Where was Delbert?
A. He was opening the pop machine. Q. Where were you?
A. I was between him and Eric.
Q. How far away from Delbert were you?
A. About 3 or 4 feet.
Q. Where was Eric?
A. He was over by the door.
Q. He was standing look-out?
A. Yeh.
Q. Did you hear Delbert ask Eric to stand look-out?
A. Yes, sir.'
The evidence is further that Delbert Bowers opened the coke box with a small pocket knife and nail clip and had opened it before with the same or similar tools.
When Mrs. Morton came into the coke room the door of the box was standing slightly ajar, although Bowers or Cox had Mrs. Morton made an in-court identification of Cox as the young man who had had his hand in the box where the money was and he was the one whom she had seen through the window between the laundramat and the coke room.
shoved it to as Mrs. Morton entered the room and it would not stay closed unless locked.
Appellant Cox charges the evidence does not show that Cox had the required intent at the time he entered the laundramat to commit a felony, as the State failed to prove the defendant (1) entered (2) with the intent to commit a felony therein, and the entry and intent must coincide.
It is further urgently contended that the evidence fails to show that Cox ever obtained or exerted unauthorized control over...
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