Jordan v. State

• Decision Date: 29 June 1981
• Docket Number: No. 2-1180A373,2-1180A373
• Citation: 422 N.E.2d 365
• Parties: Luvern JORDAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 365

422 N.E.2d 365

Luvern JORDAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-1180A373.

Court of Appeals of Indiana, Fourth District.

June 29, 1981.

William D. McCarty, Anderson, for appellant (defendant below).

Linley E. Pearson, Atty. Gen. of Indiana, Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

MILLER, Judge.

The defendant-appellant Luvern Jordan was convicted of robbery in a trial to the court and was sentenced to imprisonment for a period of ten years. Although on appeal he raises four issues ¹ for our review, we find it necessary to discuss only one, since we conclude that although the evidence reveals he stated he committed a robbery, the additional evidence was insufficient to establish he committed the robbery charged.

Before reviewing the evidence, we take note of the general 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 inference which may be drawn therefrom, will be considered. Dew v. State, (1978) 268 Ind. 17, 373 N.E.2d 138, Lottie v. State, (1974) 262 Ind. 124, 311 N.E.2d 800. It is not the function of an appellate tribunal either to weigh the evidence, or to determine the credibility of witnesses. Dew v. State, supra, Lottie v. State, supra, Floyd v. State, (1980) Ind.App., 399 N.E.2d 449. However, 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. Lottie v. State, supra, citing Tom v. State, (1973) 261 Ind. 295, 302 N.E.2d 494, Spears v. State, (1970) 253 Ind. 370, 254 N.E.2d 203, Vuncannon v. State, (1970) 254 Ind. 206, 258 N.E.2d 639, Easton v. State, (1967) 248 Ind. 338, 228 N.E.2d 6, and Baker v. State, (1956) 236 Ind. 55, 138 N.E.2d 641.

Turning to the record in the case at bar, we find the evidence most favorable to the State is as follows:

On November 12, 1979 at about 8:30 A.M. Carla Owens was working her regular shift at the Speedway Petroleum station located at 38th and Pendleton Avenue in Anderson, Indiana. As she was counting money she saw a man approach from the lefthand (or west) side of the building, from the direction of Raible Avenue. Claiming to need a gas can, he gave her a five-dollar bill for the deposit and entered the bathroom. On coming out, he asked for two dollars' worth of gas, left the money, then entered the bathroom again. When she turned around Owens saw the man had come out and was leaning over the counter with a gun. He announced that "it was a holdup." Owens stated she handed him her cash drawer, but that the gunman instructed her to "bag it up," and so she reached under the counter for a bank bag. When he also asked for other bank bags which were visible, Owens told him "they're empty." At that point, the gunman noticed additional money which she had under the counter and he came behind the counter and bagged it while she was bagging the money from the cash drawer. At least one of the bags involved was described as a blue, "zipper type" bank bag. Owens gave him $3,200 in small bills. When a customer arrived, the man said "this is not a hold-up" and left, going very rapidly the same way he came, down Raible Avenue and towards the west. Owens told the unidentified customer ² what happened, asked for change, and phoned the police and her district manager.

At trial, Owens described the gunman as a black man about six feet three inches tall, apparently large in build, and weighing around two hundred pounds. She stated he wore what looked "like a green army coat" and seemed to be wearing a sweatshirt underneath. He also had on a green toboggan hat which was rolled up a little so that it went half way over his ears and above his eyebrows. His eyes were "small, beady eyes," his eyebrows "seemed to be kind of bushy" and he had very large lips. She told police officers he was bearded, although at trial, when asked if she then thought the gunman had a beard she responded, "no, I think that he had a moustache, but I'm not sure."

Significantly, Owens was not able to identify Jordan either at the trial or before it as the man who robbed her. At the trial she simply stated, "I can't say for sure." She similarly testified that only three or four hours after the robbery she looked at books of police photographs but was unable to make an identification of anyone because "I was too shook up at the time," although a photo of an individual other than Jordan led her to believe he (the other man) may have committed the robbery. She also stated that within a week after the robbery police brought her about five photographs to look at but she could not then identify the gunman who robbed her. She did however, testify that an army fatigue jacket taken from the defendant when he was arrested was "just like the coat the guy who robbed me was wearing" (though she acknowledged it was not unique in any way) and that a toboggan hat taken from the house where Jordan had been living with one Lillie Brown and her five children was "just like" the one worn by the gunman. ³ A photograph of Jordan taken at the Anderson police station in January of 1980 revealed that at that time he had a moustache and other facial hair which a police officer said "could be classified as a beard, a couple days growth." A police photo of Jordan taken in January of 1977 showed he had a moustache and goatee when that photo was taken.

As in the case of Carla Owens, no other witness at Jordan's trial was able to place him at the robbery scene. One witness, Steve Winkle, who lived a block to the west of the Speedway station on 38th Street did testify regarding certain "peculiar" activity he had observed, although he indicated he was unable to identify either the car or the person he saw. Winkle testified that early "one morning", about 8:30 A.M., he noticed a "dark" car back up in front of his neighbor's house, out of which a large man emerged wearing dark clothing that looked like a parka or windbreaker and a toboggan hat. Another person remained in the car. Winkle said the man headed east across some railroad tracks in a manner he described as "partly walking and partly jogging." After about ten minutes he returned in the same manner and then, according to Winkle, the two people left in the car, heading east and turning onto Raible Avenue. Winkle said he didn't think there was anything suspicious at the time about what he observed, but that when he read about the Speedway robbery he thought there could be some connection.

Perhaps the most significant witness called by the State was Lillie Brown, who said she was Jordan's girlfriend for six or seven months beginning in June of 1979, and that she had lived with him for a time at her residence at 2702 Horton Drive in Anderson, which is the address where police seized the toboggan hat introduced at trial. She had resided there with her five children. For the most part, the questioning of Brown focused on her written statement supplied to police at their request tending to implicate Brown in a robbery. That statement, the significant parts of which have been emphasized, was as follows:

"I am giving this statement about what I know of an armed robbery on Nov. 12, 1979 that happened at the Speedway Service Station at 38th St. and Pendleton Ave. in Anderson, In. I met and started going with a Luvern Jordan in about June of 1979. Around the time of the robbery Luvern would come to my mother's house at 935 Arrow Ave. and borrow my car every morning, or maybe every other morning. He would also keep my car of a night while I was at work. My car is a dark Blue 1978 Chev. Monte Carlo 1979 Lic. Ind. 48A7032. On one of these mornings Lavern (sic) came to my mothers house and got my car about 6:40 A.M. He came back about 9:00 A.M. and came into the house. Lavern (sic) told me There is some money out to the house on Horton Dr. I asked him what he was talking about. Luvern said I did a robbery. Luvern was by himself when he brought the car back and said this. Luvern left my car at my mothers house and took his own car which was a GTO. On this d ame (sic) evening I read in Anderson Bulletin where a a robbery had happened at the Speedway Station. Luvern had told me when I asked him what robbery that I would read about it in the paper. Luvern came back to my mothers house this same evening and we watched television but we didnt (sic) say anything about the robbery. The next morning Luvern called me and asked me if I wanted to go look for the kids bed. I told him to call me back later. Lavern (sic) did call me back later and we decided to go to Muncie to look for the kids bed. When we got into my car at my mothers house to go to Muncie Lavern (sic) showed me a blue plastic trash bag. There was $600.00 in twenty dollar bills. I took the money out of the trash bag and put (it) into my billfold. We went to Muncie Value City in Muncie and bought a bedroom suite. I paid the Furniture store the $600.00 cash and owed them $137.00 to be paid upon delivery to my home at 2702 Horton Dr. The furniture co. delivered the furniture to us on Friday 11/16/79 late in the evening. Luvern paid the $137.00 in cash to them out of his billfold. On November the 25, 1979 Luvern and I went to Happy Huggins in Indianapolis to buy a refrigerator. Luvern told me he would buy it. We did buy a refrigerator at Happy Huggins and paid $462.00. Luvern paid them in cash. I do not know what denominatios (sic) the bills were in. Luvern had the money hid in my house at 2702 Horton Dr. but I done (sic) know where in the house. When Luvern would need some money he would just go get it. The reason I was living at my mothers house was because I didnt have any furniture for the home I bought at 2702 Horton Dr. Luvern did live with me...