Kocher v. State

• Citation: 439 N.E.2d 1344
• Decision Date: 01 October 1982
• Docket Number: No. 1181S324,1181S324
• Parties: Bernard E. KOCHER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1344

439 N.E.2d 1344

Bernard E. KOCHER, Appellant, v. STATE of Indiana, Appellee.

No. 1181S324.

Supreme Court of Indiana.

Oct. 1, 1982.

Susan K. Carpenter, Public Defender of Ind., Sheila K. Zwickey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury of Kidnapping, Criminal Confinement, and Robbery While Armed with a Deadly Weapon. The trial court merged the Kidnapping and Confinement convictions, sentencing appellant to the thirty (30) year presumptive term. Appellant was sentenced to a term of ten (10) years for the robbery conviction, to be served concurrently with the thirty (30) year term.

Appellant entered Merchants Bank, Bright Branch, with a gun and ordered the tellers and acting branch manager to fill a bag with money. Two of the four bank employees knew appellant as a customer. Appellant wanted someone to go with him and asked for a volunteer. Upon appellant's demand, the acting manager drove his car to the door of the bank. Appellant rode in the backseat of the manager's car. With the police in pursuit, appellant brandished his rifle to them through the rear window. Eventually, appellant threw the rifle from the car and surrendered.

Appellant presented an insanity defense. Four family members testified regarding appellant's personal and emotional problems. Twelve other witnesses, including two employers, a psychiatric nurse from the Mental Health Center, two police officers, two employees of the Hamilton County, Ohio, Domestic Relations Court and a clinical psychologist testified regarding appellant's history of emotional problems. The clinical psychologist stated in his opinion appellant was legally insane on the day of the offense. Two court appointed psychiatrists testified appellant was legally sane on the day of the offense. Appellant also testified in his defense.

Appellant claims the evidence was insufficient to support the jury's verdict. He frames the issue in two parts: (1) did appellant have the intent to kidnap anyone and (2) was his emotional condition such that he did not appreciate the wrongfulness of his conduct. Under our standard of review, we will not reweigh the evidence nor judge the credibility of witnesses. Williams v. State, (1980) Ind., 406 N.E.2d 241.

Intent to commit a felony may be inferred from circumstances surrounding the event. Duncan v. State, (1980) Ind., 409 N.E.2d 597. Contrary to appellant's assertions, that the acting branch manager volunteered to accompany appellant after the robbery is of no moment. Appellant had entered the bank with a rifle, announced his intent to commit a robbery and stated he should take someone with him, requesting a volunteer. Appellant told the bank employees the weapon could "blow a hole" in them. The jury could have reasonably inferred the branch manager was "volunteering" to prevent one of the female tellers from being kidnapped. A similar contention was addressed by this Court in Coleman v. State, (1975) 264 Ind. 64, 339 N.E.2d 51 at 55:

"It is of no consequence, under the circumstances, that the trip to Louisville was made at Mr. Robinson's [the hostage] suggestion. He and his family were being held and threatened at gunpoint. He volunteered to do what he did only out of fear of great harm to himself and family. Under these circumstances, his actions cannot be said to have been voluntary but clearly were coerced. The reasonable fear of the use of force or violence, when combined with asportation, is sufficient to sustain a charge of kidnapping."

Appellant claims the verdicts are unsupported by sufficient evidence because as a whole, the evidence indicates he was emotionally disturbed and unable to appreciate the wrongfulness of his conduct. The rules regarding the appeal of negative judgments apply to criminal defendants who carry the burden of proof in the insanity defense. Thomas v. State, (1981) Ind., 420 N.E.2d 1216. Therefore, a question on the evidence cannot be raised by an allegation of insufficient evidence. Rather, the question must be raised on the assignment that the verdict is contrary to law. Thomas, supra; Price v. State, (1980) Ind., 412 N.E.2d 783. Moreover, only when the evidence is without conflict and leads to but one conclusion, will the negative judgment be reversed on appeal.

In the case at bar, appellant fails to properly frame his issue as the verdict being contrary to law. We also note the evidence adduced at trial was conflicting. Although a clinical psychologist testified appellant was legally insane at the time of the offense, two court appointed psychiatrists testified he was sane. When the evidence is in conflict, the...