Jordan v. State

• Decision Date: 09 March 1982
• Docket Number: No. 382,382
• Citation: 432 N.E.2d 9
• Parties: Luvern JORDAN, Appellant, v. STATE of Indiana, Appellee. S 87.
• Court: Indiana Supreme Court

Page 9

432 N.E.2d 9

Luvern JORDAN, Appellant, v. STATE of Indiana, Appellee.

No. 382 S 87.

Supreme Court of Indiana.

March 9, 1982.

William D. McCarty, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer by the Attorney General of Indiana from the Court of Appeals, Fourth District. Defendant-appellant Luvern Jordan was convicted of robbery, Ind.Code (1979 Repl.) § 35-42-5-1, in a bench trial on May 23, 1980 and was sentenced to imprisonment for a period of ten (10) years. The Court of Appeals found that there was not sufficient evidence presented to the trial court to prove beyond a reasonable doubt that the defendant committed all of the elements of the crime of robbery and accordingly reversed the conviction. Jordan v. State, (1981) Ind.App., 422 N.E.2d 365. We find the Court of Appeals to be in error and accordingly vacate its opinion. We will further consider all other issues raised by defendant in his appeal.

Defendant Jordan lists four errors on appeal, concerning: 1) whether there was sufficient evidence to convict defendant of robbery; 2) whether the trial court erred in allowing the State to file notice of alibi less than twenty-four hours prior to the start of trial; 3) whether the trial court erred in permitting the testimony of witness Lillie Brown; and 4) whether the trial court erred in overruling defendant's motions to suppress introduction of a toboggan hat and army jacket.

I.

It is a well established rule of law that where questions concerning the sufficiency of evidence are presented on appeal, only that evidence which is most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom, will be considered. Kimmel v. State, (1981) Ind., 418 N.E.2d 1152, 1158; James v. State, (1980) Ind., 411 N.E.2d 618, 622; Dew v. State, (1978) 268 Ind. 17, 19, 373 N.E.2d 138, 139. It is not the function of this Court nor the Court of Appeals, as appellate tribunals, to weigh the evidence or to determine the credibility of witnesses. That is the function of the trier of fact, either the jury in a jury trial or the trial court in a bench trial. Lawson v. State, (1980) Ind., 412 N.E.2d 759, 769; Kimmel, supra; Dew, supra. It is, of course, true that every criminal conviction must be supported by evidence upon each material element of the crime charged and that evidence must be such as will support the essential conclusions beyond a reasonable doubt. So long as there is evidence from which the trier of fact could have found, beyond a reasonable doubt, that each material element of the crime charged was proved, we will not disturb that judgment. Dunville v. State, (1979) Ind., 393 N.E.2d 143, 148; Lottie v. State, (1974) 262 Ind. 124, 126, 311 N.E.2d 800, 801.

The testimony presented to the trial judge revealed that Carla Owens was working her regular shift at the Speedway Petroleum Station on November 12, 1979. At about 8:30 a. m., she was counting money when she saw a black man approaching the building. He said he needed gas and the use of a can to transport it; he gave her a five-dollar bill for deposit on the can and then entered the restroom. On coming out of the restroom, he asked for two dollars ($2.00) worth of gas and then entered the restroom again. She turned away from him and when she turned around again, Jordan had come out of the restroom and was leaning over the counter, pointing a gun at her. He announced that "it was a holdup." Owens described the man as being about six feet three inches tall, a very large man, weighing about two hundred pounds. She said he wore a green army coat and a green toboggan hat and seemed to be wearing a sweatshirt under the coat. He took thirty-two hundred ($3200) dollars in small bills from the station. When a customer came into the station, the man said "This is not a holdup," and left. Owens said the man had small beady eyes, bushy eyebrows and large lips. She could not absolutely identify the defendant and said the hat might have affected the view of his eyes, a feature which, normally, she observed about people. She told Police Officer Hall that the man who robbed her had facial hair, such as a beard. In court, Jordan had only a mustache. When asked about the facial hair in court, she said she wasn't sure, that it might have been a mustache but there was some facial hair. Pictures of Jordan taken at the time that this robbery occurred, showed that he did have facial hair.

Lillie Brown testified that she was living with Jordan at the time this robbery occurred. She said she had a dark blue 1978 Chevrolet automobile and that Jordan often drove the car. She said that he borrowed it early one morning, about 6:40 a. m., and came back with it at 9:00 a. m. Jordan told Brown at that time that they would now be able to buy bedroom furniture for the kids. He told her he had placed some money at her house and that he got the money from a robbery he committed. She did not question him in detail about the robbery but Jordan told her she would read about it in the newspapers. The next day she read in the newspaper that the Speedway Petroleum Station had been robbed. Jordan later revealed to her that he had a large sum of money in a trash bag at her house. Brown had to live with her mother a great deal of the time because she had no furniture in her apartment. Jordan took six-hundred dollars ($600) in twenty-dollar bills from the trash bag and gave it to Brown for the purchase of the bedroom furniture. Both of them then went to a store in Muncie and paid six-hundred dollars ($600) down on a bedroom set, with a balance of one-hundred and thirty-seven dollars ($137) to be paid on delivery of the furniture. When the furniture was delivered, Jordan paid the balance in cash. Brown said that whenever Jordan needed money, he went to the trash bag, removed some money and put it in his billfold. He later purchased a refrigerator for her apartment and paid four-hundred and sixty-two dollars ($462) in cash for it. At the time Brown revealed this to the police, she had broken off her relationship with Jordan and made available to them two boxes of Jordan's belongings which he had left in a closet in her apartment. Among those belongings was a ski cap, green and yellow in color. When the cap was turned inside-out, it appeared all green. Carla Owens said the cap was exactly like the cap the robber was wearing. She, of course, was not able to say with certainty that it was the same cap. Also found among Jordan's belongings in the jail was a green, army type jacket. Carla Owens said this jacket was exactly like the one worn by the man who robbed her. She again, could not say absolutely that it was the same jacket. Both of these items were, however, of the type she had previously described and Owens testified they were just like the ones worn by the robber.

An additional witness, Steve Winkle, lived near the Station that was robbed. He said that at 8:30 a. m., on the morning of the robbery, a car, dark in color, pulled up at the house next door. The car contained two people; one a large black man who got out and walked across a nearby railroad track, while the other person remained in the car. He said this large black man wore dark clothing, a parka and a toboggan hat. He saw the same man return in a short while and they drove away. He reported this suspicious activity after he heard of the robbery at the filling station.

We have sufficient facts from which the trier of fact could reasonably determine that the defendant was, in fact, the one who committed the robbery in question. Though many of the facts are circumstantial, the mixture of direct and circumstantial evidence is sufficient. Individual items of evidence, standing alone, may not tend to be persuasive or probative of establishing guilt. But when a number of facts and a series of events are put together, they can tend to corroborate each other and establish a pattern of evidence that is probative. Defendant did, in fact, state to witness Brown that he had committed a robbery, that he had money to buy furniture, and that Brown would read about the robbery in the newspapers. This was direct evidence coming from the mouth of the defendant himself. The possession of a large amount of money, observed by witness Brown, was direct evidence. It is circumstantial evidence that a robbery reported at that time and on that day was at the Speedway Petroleum Station, that a large amount of money was taken, and that a dark car was used in the robbery. But taken together, the evidence rises above speculation, the suspicion of guilt, or mere opportunity to commit the crime assigned to it by the Court of Appeals. It cannot be said that it was mere conjecture or surmise by the trial judge in determining that there was proof beyond a reasonable doubt that the defendant committed the crime. When these facts are added to the testimony of Carla Owens, who commendably was very honest about it, stating that the person who committed the robbery had the physical characteristics of the defendant, that he wore an army jacket and a green toboggan hat, they become more probative. Even though army jackets and green toboggan hats are not uncommon items in our society, we are narrowed down to an individual who owns both. The trial judge heard all of the evidence and observed the witnesses. He was more able than we are to determine their credibility and determine the probative value of all the evidence before him. Since the evidence presented to the trial court was sufficient to find beyond a reasonable doubt that the defendant was guilty of robbery as charged, we allow its judgment to stand.

II.

It is the defendant's contention that the State unreasonably delayed filing its response to his notice of alibi and should have been, as a result, precluded from presenting any...