Kilgore v. State

• Decision Date: 19 July 1979
• Docket Number: No. 1178S272,1178S272
• Citation: 391 N.E.2d 820,271 Ind. 257
• Parties: Leroy KILGORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 820

391 N.E.2d 820

271 Ind. 257

Leroy KILGORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1178S272.

Supreme Court of Indiana.

July 19, 1979.

Herbert W. Johnson, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Robbery, Class B, in a trial by jury and sentenced to twenty years imprisonment. On appeal, he raises the following issues for our review:

(1) Whether there was sufficient evidence to sustain the verdict.

(2) Whether the defendant was denied his presumption of innocence throughout the trial and whether "the jury failed to reconcile all of the evidence with the theory of the defendant's innocence, where such evidence, taken as a whole, clearly demonstrated his innocence."

ISSUE I

The defendant contends that the evidence was insufficient on the element of identification. He contends that the identification was based solely upon the testimony of Mark Hurt, a codefendant who turned State's witness, and that such testimony was not credible.

As a court of review, we will neither reweigh the evidence nor judge the credibility of the witnesses, Robinson v. State (1977), 266 Ind. 604, 365 N.E.2d 1218; rather, we will look only to that evidence most favorable to the State and all reasonable inferences to be drawn therefrom to determine whether a reasonable juror could have found the existence of each of the elements of the crime charged beyond a reasonable doubt. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831.

The evidence when viewed in such light indicates that the defendant and a companion, Mark Hurt, forced their way into the Heritage House Smorgasbord in Indianapolis, Indiana, on November 20, 1977, aimed a gun at the manager, forced him to open the safe and fled with over $5000.00 in cash.

That Hurt was testifying as part of a plea bargain agreement goes only to the credibility of his testimony, not to its competence. Coleman v. State, (1975) 264 Ind. 64, 67, 339 N.E.2d 51.

Defendant's reliance upon Vuncannon v. State, (1970) 254 Ind. 206, 258 N.E.2d 639, is misplaced. In that case, concerning a charge of assault and battery with intent to gratify sexual desires, the prosecuting witness could not say whether the defendant had accidently backed into him or had deliberately grabbed him. Thus the State failed to prove that the defendant had touched the prosecuting witness in a rude, insolent or angry manner. In so holding, this Court stated, "It appears to us that this evidence lacks directness and freedom from uncertainty, qualities which substantive evidence of a probative value must have. A mere scintilla of evidence is not enough." Id. at 208, 258 N.E.2d 640. However, the facts of the Vuncannon case are in sharp contrast with the facts of the case at hand. In the case before us, Hurt stated unequivocally that the defendant was his accomplice in the robbery. Standing alone this would withstand a challenge to the sufficiency of the evidence, although it may be subject to considerable question for credibility. Furthermore, his testimony did not stand alone but was supported by the testimony of several victims of the robbery who testified that the defendant appeared to be the man who had robbed them although they...