Haymaker v. State
| Decision Date | 22 September 1988 |
| Docket Number | No. 53S00-8701-CR-24,53S00-8701-CR-24 |
| Citation | 528 N.E.2d 83 |
| Parties | Bruce A. HAYMAKER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
June D. Oldham, Indianapolis, for appellant.
Linley E. Pearson, Michael Gene Worden, Attys. Gen., Indianapolis, for appellee.
A jury trial resulted in appellant's conviction of Attempted Robbery on Count I, a Class B felony, for which he received a sentence of fifteen (15) years; Conspiracy on Count II, a Class B felony, for which he received a sentence of fifteen (15) years, which was enhanced by thirty (30) years due to a finding that he is an habitual offender; Robbery on Count III, a Class B felony, for which he received a sentence of fifteen (15) years; Robbery on Count IV, a Class B felony, for which he received a sentence of fifteen (15) years; and Carrying a Handgun Without a License on Count V, a Class A misdemeanor, for which he received a sentence of one (1) year. The sentences on Counts I, II, and V were ordered to run concurrently; the sentence on Count III was ordered to run consecutively with those of Counts I, II, and V; and the sentence for Count IV was ordered to run consecutively to Count III. Thus, appellant's incarceration period totals a determinant period of seventy-five (75) years.
The facts are: At approximately 10:45 p.m. on February 11, 1986, the east side Pizza Hut in Bloomington, Indiana was robbed by two men armed with handguns. The robbers wore ski masks and dark gloves, and one robber was two or three inches taller than the other. Their ski masks were pulled down over their faces so that none of their features showed, but the inner layer of material had been cut away around the eye portion to allow them some visibility. The robbers took money from the cash register and the safe, then took the employees' wallets.
The same Pizza Hut was robbed again at approximately midnight on February 22, 1986 by two men wearing the same type of ski masks. Like the previous robbery, they forced the store manager at gunpoint to locate the safe, and they emptied the cash register and employees' wallets. One robber was taller than the other.
About 11:00 p.m. on February 22, a witness standing near the Pizza Hut observed two men as they ran by her. One was carrying a square-shaped object in a bag. The taller one was blonde and his shorter counterpart had medium brown hair. From a photographic lineup, the witness identified appellant as one of the men she saw running away from the Pizza Hut.
On February 27, 1986, Giovanni Pizza in Indianapolis was robbed at approximately 12:45 p.m. Two men wearing brown or rust-colored ski masks ordered employees at gunpoint to open the cash register, and they placed the money in a bag. The robbers left the restaurant after an employee told them she could not open the safe because she did not know the combination. One of the robbers was several inches taller than the other.
On the night of March 16, 1986, Bloomington Police Officer William Parker sat in an unmarked police car in the north side Pizza Hut parking lot. His duty was to watch for any suspicious activity similar to the robberies which had occurred in the area.
Shortly after midnight two men in a green Chevrolet Impala pulled up to the entrance of the restaurant and peered inside. The driver then glanced across the parking lot and looked directly at Officer Parker, who was wearing a uniform. The driver looked at the passenger, who then looked at the officer, and they quickly accelerated out of the parking lot.
Officer Parker radioed for assistance in stopping the green Impala. Officer Hunter stopped the vehicle, which was travelling above the speed limit. He noticed that one of the men in the car was slightly taller than the other.
Officer Crouch appeared to assist Officer Hunter and found a gun on the floorboard of the car. The officers asked the men for some identification. Their licenses revealed that they were appellant Bruce Haymaker and Doren Martin. When police patted appellant down in search of a weapon, they found in his shirt pocket a piece of paper which listed addresses of Kentucky Fried Chicken restaurants around Indianapolis.
Appellant and Martin were taken to the Bloomington Police Department, and police conducted an inventory search of their vehicle. Inside the car, police found two loaded handguns, one rust and one maroon-colored ski mask, both of which had been altered for visibility, and brown, jersey-style gloves. Appellant and Martin were each wearing two pairs of pants of different colors and fabrics. A bag found in the trunk contained more gloves and ammunition. The listings of pizza and fast-food restaurants torn from a telephone directory were found in the car, along with a city map of Bloomington. Rolls of coins were also found in their car.
Employees of the pizza restaurants who witnessed the robberies identified the guns, ski masks, gloves, and clothing found in appellant's vehicle as similar to those they saw during the robberies. Also, the approximate heights and weights of the robbers matched that of appellant and Martin.
Tim Bunton testified that he was with appellant and Martin when they robbed Giovanni's. He went with appellant to rob the store while Martin remained in the car. He said that appellant and Martin put on two pairs of pants and other clothing to fool the police, and he identified the guns and ski masks found in appellant's car as the ones used in the robbery.
Appellant was charged and convicted of Robbery for both the February 11 and 22 incidents, Attempted Robbery for the March 16 incident, Conspiracy and Carrying a Handgun Without a License.
Appellant argues the evidence is insufficient to sustain his convictions. Appellant recognizes that on appeal, this Court will not reweigh the evidence or judge the credibility of witnesses. However, he asserts that the State failed to prove he took a substantial step toward committing the robbery on March 16. We disagree with appellant on this issue. However, since we remand this case and order the attempt conviction vacated for other reasons, we will not dwell further on this issue.
Appellant also argues the evidence is insufficient to sustain his conspiracy conviction. He states that his driving into a parking lot with stocking caps and driving away amounts to no more than a suspicion of an agreement.
A conviction for conspiracy may rest on circumstantial evidence alone. The agreement, as well as the mens rea, may be inferred from circumstantial evidence alone, including overt acts of the parties in pursuance of the criminal act. Gann v. State (1988), Ind., 521 N.E.2d 330. We find sufficient circumstantial evidence to support the conclusion that appellant formed an agreement with Martin to commit criminal acts and that they took substantial steps in pursuance of those acts.
Appellant also argues that the evidence does not sufficiently establish that he is the person who robbed the Pizza Hut on February 11 and February 22.
Identification must be of such a substantial nature as to remove any reasonable doubt; identification, however, may be established by circumstantial evidence. Where the sufficiency of circumstantial evidence is in question, we examine it with the view of deciding whether an inference may reasonably be drawn therefrom tending to support the finding of the trial court. Johnson v. State (1978), 177 Ind.App. 501, 380 N.E.2d 566.
Inferences may reasonably be drawn from the eyewitnesses' testimony, the weapons, the clothing and masks found with appellant, and appellant's modus operandi during the robberies to support the trial court's finding. We find the evidence is sufficient to support appellant's convictions.
Appellant contends the trial court erred in allowing the State to introduce evidence of other criminal activity involving him for which he was not charged.
At trial Tim Bunton testified that he, Martin, and appellant robbed Giovanni's Pizza in Indianapolis and he admitted robbing another Pizza Hut in Indianapolis. A photograph of a masked man holding a gun was admitted during Bunton's testimony. He said it was a photograph of appellant taken as he robbed a Giovanni's on February 17. Sergeant Paul Wells testified...
To continue reading
Request your trial
-
Williams v. State
...N.E.2d 106, 108 (Ind.Ct.App.1988), the statute prohibits convictions on both charges. 15 IND.CODE § 35-41-5-3(a) (1993); Haymaker v. State, 528 N.E.2d 83, 87 (Ind.1988) (conviction and sentence for attempted robbery vacated pursuant to Indiana Code § 35-41-5-3(a) where defendant was convict......
-
Logan v. US, 89-747
...trial' as called for by D.C. Code § 23-111(a)(1)." Arnold, supra, 443 A.2d at 1326 (emphasis in original). 3 See, e.g., Haymaker v. State, 528 N.E.2d 83, 86 (Ind.1988); Harmon v. State, 518 N.E.2d 797, 798-99 (Ind.1988); Starks v. State, 517 N.E.2d 46, 53 (Ind.1987); State v. Brown, 729 S.W......
-
Singleton v. State, 45A03-0712-PC-551.
...(Ind.1989); Chambers v. State, 540 N.E.2d 600, 601-02 (Ind.1989); Cornett v. State, 536 N.E.2d 501, 505 (Ind. 1989); Haymaker v. State, 528 N.E.2d 83, 86 (Ind.1988); Hegg v. State, 514 N.E.2d 1061, 1063 (Ind.1987); Brooks v. State, 497 N.E.2d 210, 214 (Ind.1986); Graves v. State, 496 N.E.2d......
-
Evans v. State
...him of due process. Fundamental error is error that if not corrected would deny a defendant fundamental due process. Haymaker v. State (1988), Ind., 528 N.E.2d 83. In the instant case, the trial court gave the following "You must first determine the guilt or innocence of the defendant, and ......