Keyton v. State

• Decision Date: 03 February 1972
• Docket Number: No. 1170S278,1170S278
• Citation: 257 Ind. 645,278 N.E.2d 277
• Parties: Bernard KEYTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 277

278 N.E.2d 277

257 Ind. 645

Bernard KEYTON, Appellant, v. STATE of Indiana, Appellee.

No. 1170S278.

Supreme Court of Indiana.

Feb. 3, 1972.

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

Appellant was charged by affidavit on June 6, 1968, with the crimes of Robbery and Robbery While Armed. On June 19, 1968, appellant filed a notice of alibi, to which the State filed its notice and statement on June 21, 1968. Appellant thereafter pleaded not guilty to both charges. On August 1, 1968, appellant filed an amended notice of alibi, to which the State filed its notice and statement on August 3, 1968. Appellant waived jury trial. Trial commenced on August 13, 1968, on Count II of the affidavit charging appellant with Robbery While Armed with a Deadly Weapon. At the close of the State's case in chief, appellant moved for a finding of not guilty and for discharge, which was overruled. Also, at the close of all the evidence, appellant moved for a finding of not guilty and for discharge, which was overruled. The trial court found the appellant guilty as charged in the second count of the affidavit and sentenced him to twelve (12) years at the Indiana State Prison. On September 13, 1968, appellant filed a Motion for a New Trial, which was overruled. On May 27, 1971, appellant filed an Amended Belated Motion to Correct Errors, which contained as a ground, an averment of 'newly discovered evidence.' Appellant's Motion to Correct Errors was thereafter overruled by the Court.

Appellant's appeal sets forth two issues for our consideration, they are as follows:

(1) Whether there was sufficient evidence concerning the identification of the appellant as being the person who committed the crime charged;

(2) Whether a new trial should have been granted appellant because of averred 'newly discovered evidence.'

We shall first consider appellant's contention that the evidence is insufficient concerning his identity as that of the man who committed the crime with which he was charged. In considering this contention we must do so in light of the rule that this court will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the trial court or jury. Washington v. State (1971) Ind., 271 N.E.2d 888; Davis v. State (1971) Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind., 258 N.E.2d 407; Smith v. State (1970) Ind., 260 N.E.2d 558; and Langley v. State (1968), 250 Ind. 29, 232 N.E.2d 611. A conviction must be affirmed if having applied the rule there is evidence of probative value, from which the trier of the facts could reasonably infer that the appellant was guilty beyond a reasonable doubt. Gann v. State (1971) Ind., 269 N.E.2d 381; Asher v. State (1969) Ind., 244 N.E.2d 89.

The record discloses the following evidence relevant to our consideration of appellant's contention that there was insufficient evidence to prove his identity. On May 31, 1968, at approximately 9:00 p.m., Arthur Mabie and other employees of the Augusburger's Grocery Store were preparing to close the store. Mr. C. D. Lawson, father of one of the employees was parked at the front entrance of the store, sitting in his car waiting for his son. At this time two men disguised as women approached the store. One of the disguised men went to Mr. Lawson's car, the other entered the store. The man who entered the store and with handgun drawn, forced the employees into a large refrigeration room, in the rear part of the store. Meanwhile the other man, with handgun drawn, forced Mr. Lawson from his car and into the store where he was placed in the refrigeration room with the others. The two men took wallets and money from all the employees, including a money bag containing some two thousand seven hundred and thirty dollars ($2,730.00) store receipts. Also, Mr. Mabie, the store manager, was forced to open the store safe, where some one thousand and five ($1,005.00) dollars was recovered by the men. After locking all the employees and Mr. Lawson in the refrigeration room, the men fled from the store. A few days after the robbery, a state police officer showed Mr. Lawson several photographs of suspects. Mr. Lawson picked out one photograph and stated that he thought it was that of the man who had approached his car and forced him in the store, during the robbery. The photograph picked out by Mr. Lawson was that of the appellant, Keyton. Mr. Lawson testified that at times he was two to three feet from the appellant when he was being escorted to the refrigeration room and that he had seen the appellant's face. Mr. Lawson testified that although the appellant's face was disguised with make-up he could still recognize his features. Mr. Lawson again, in court, testified that appellant's 'features resembled the man I seen the night of the robbery'. The other victims of the robbery, the store employees, were unable to identify the appellant as being the man who escorted Mr. Lawson into the store because they were already in the...