Duvall v. State

• Citation: 275 Ind. 188,415 N.E.2d 718
• Decision Date: 04 February 1981
• Docket Number: No. 1279S360,1279S360
• Parties: George Roger DUVALL, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 718

415 N.E.2d 718

275 Ind. 188

George Roger DUVALL, Appellant, v. STATE of Indiana, Appellee.

No. 1279S360.

Supreme Court of Indiana.

Feb. 4, 1981.

Walter E. Bravard, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John K. Silk, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of two counts of robbery, while armed, a Class B Felony. He was sentenced to two ten-year terms of imprisonment to run consecutively.

On May 8, 1978, the Hooks Pharmacy in Southport was robbed. Two males entered the store and took money from the cashier and from a customer. There was evidence that the appellant was one of these men and that he carried a hand gun during the robbery.

Appellant claims that the in-court identifications by three witnesses were tainted by improper and suggestive pretrial identification, thereby denying him a fair and impartial trial. The record discloses he failed to object during the trial to the identification testimony given by any one of the three witnesses. Therefore, appellant has not preserved the issue for review. Drake v. State, (1979) Ind., 397 N.E.2d 600.

Appellant next claims there is insufficient evidence on the issue of identity. This argument was predicated on the fact that appellant testified that he knew nothing about the robbery, although the cashier, the pharmacist, and a customer made in-court identifications. When there is a conflict in the testimony, the jury is free to believe whomever they wish. Ward v. State, (1973) 260 Ind. 217, 294 N.E.2d 796. This Court will not weigh the evidence nor judge the credibility of the witnesses. Brown v. State, (1977) 266 Ind. 82, 360 N.E.2d 830. The record contains ample evidence to support the finding of the jury that appellant had been identified as a perpetrator of the crime.

Appellant next claims there is insufficient evidence to support the charge that he was armed with a deadly weapon. Although one witness described the weapon as a revolver, and another as an automatic, all three witnesses testified they saw a gun. Two witnesses during cross-examination by appellant conceded that the weapon could have been a replica. No weapon was introduced in evidence by the State. In Brown v. State, supra, we held that it is not necessary to introduce a weapon into evidence to prove use of a deadly weapon. There is ample evidence in the record from which the jury could reasonably find that appellant was armed with a deadly weapon.

Appellant claims the State failed to prove that he took money from the person or presence of the cashier as stated in the information. However, the cashier testified that while appellant held a gun, his comrade took money from the cash register. She further testified she saw the appellant take money from the customer's billfold. In Smith v. State, (1969) 252 Ind. 148, 246 N.E.2d 765, we affirmed a conviction of robbery where the employees of the store were taken to the back of the store room, forced to lie face down, and after the appellant fled, found that $2200 and between 150 and 200 pieces of jewelry were missing. In Smith, supra, 252 Ind. at 153, 246 N.E.2d at 767, this Court stated:

"It is not necessary to sustain a conviction for robbery that the property taken is from the actual person of another. It is sufficient if the property taken is from the...