Kizer v. State, 681S159

• Decision Date: 19 July 1982
• Docket Number: No. 681S159,681S159
• Citation: 437 N.E.2d 466
• Parties: John W. KIZER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 466

437 N.E.2d 466

John W. KIZER, Appellant, v. STATE of Indiana, Appellee.

No. 681S159.

Supreme Court of Indiana.

July 19, 1982.

John F. Surbeck, Jr., Deputy Public Defender, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

John W. Kizer, the defendant-appellant, was convicted by a jury of robbery, a class A felony, Ind.Code Ann. Sec. 35-42-5-1 (Burns 1979), and confinement, a class B felony, Ind.Code Ann. Sec. 35-42-3-3 (Burns 1979). He was sentenced to thirty years' imprisonment for the robbery and ten years' imprisonment for the confinement, the terms to be served concurrently. This appeal follows the denial of the motion to correct error and presents the sole issue of whether wholly circumstantial evidence presented by the State at trial was sufficient to overcome every reasonable hypothesis of innocence.

The evidence from the record supporting the jury's verdict shows that on February 7, 1980, the defendant forced his way into Lynn Bryant's car as she parked it in a parking lot, and demanded at knifepoint that she give him the keys. He drove with her around Allen County for about twenty minutes. When Bryant had a chance to flee, the defendant slashed her hand as she left the car, and he sped off with her purse.

The defendant argues that the evidence was insufficient to support the conviction. He summarizes this insufficiency as follows:

Bryant was unable to identify him as the man who abducted her. She identified a watch taken from the defendant as similar to the watch worn by the abductor. Witnesses who testified that they observed Bryant's car being driven in an erratic manner were unable to identify the defendant as the driver of the car. Witnesses who observed a man at the place where Bryant's car was found abandoned were also unable to identify him as the defendant. The State and the defense produced witnesses who testified that the defendant was at the scene of the abduction. The State produced evidence that showed that heel marks found in the snow at the parking lot could have come from shoes taken from the defendant. A fingerprint expert testified that fingerprints on the rearview mirror matched fingerprints of the defendant. The fingerprint evidence, defendant argues, is "substantially diluted by the fact that there were a number of other latent prints on the mirror which were not identified nor attempted to be identified."

The defendant contends that this circumstantial evidence did not "overcome every reasonable hypothesis of innocence," citing Miller v. State, (1968) 250 Ind. 338, 236 N.E.2d 173; and Easton v. State, (1967) 248 Ind. 338, 228 N.E.2d 6, and was therefore insufficient.

This claim confuses the law which governs trial courts with that which governs the scope of appellate review. A defendant is entitled to an instruction to the jury that in order to convict on the basis of circumstantial evidence it must find that the evidence excludes every reasonable hypothesis of innocence beyond a reasonable doubt. Spears v. State, (1980) Ind., 401 N.E.2d 331. On appeal, however, an appellate court does not use the test of exclusion of every reasonable hypothesis of innocence as the standard for review of sufficiency claims.

"Where the evidence of guilt is essentially circumstantial the question for the reviewing court is whether reasonable minds could reach the inferences drawn by the jury; if so, there is sufficient evidence." Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042, 1080.

See also Spears v. State, supra; Parks v. State, (1979) Ind., 389 N.E.2d 286; Ruetz v. State, (1978) 268 Ind. 42,...