Larkin v. State, 579S141

• Decision Date: 04 September 1979
• Docket Number: No. 579S141,579S141
• Citation: 393 N.E.2d 180,271 Ind. 469
• Parties: Albert LARKIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 180

393 N.E.2d 180

271 Ind. 469

Albert LARKIN, Appellant, v. STATE of Indiana, Appellee.

No. 579S141.

Supreme Court of Indiana.

Sept. 4, 1979.

Terry C. Gray, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of two counts of kidnaping and two counts of robbery resulting in bodily injury. He was sentenced to concurrent terms of 30 years on each count.

The evidence shows that on the evening of January 31, 1978, Robert Pioch and Charles Mann were driving around drinking in Gary, Indiana. They stopped at the El Corral Restaurant where Larry Weeten asked them for a ride. Pioch and Mann took Weeten first to the Nova Lounge for a brief stop and then to 568 Adams Street in Gary.

On the way to Adams Street, Weeten commented that he was "feeling good" from marijuana. A discussion was held regarding a possible drug purchase from the occupants of the apartment to which he was headed. Upon arrival, Weeten cleared the deal and led Mann and Pioch into the basement apartment, where they saw Willie Simms, Paul Smith and appellant Albert Larkin. Appellant directed two of the men to retrieve the marijuana. When they returned, Simms struck Pioch on the head with a ball bat, knocking him into a chair. When Mann tried to go to Pioch's assistance, appellant knocked him down with a bat, saying "Take your boots and socks off and pull your wallet out." Pioch was also directed to give up his wallet.

Mann and Pioch handed over their wallets, but when the assailants saw how little money the two victims had, appellant began striking Mann about the head again and threatening to kill him. Appellant and Simms then began arguing, appellant wanting to kill the two men and Simms wanting to get more money from them.

They finally agreed that Simms and Smith would take Pioch to his home to get about $400, a stereo and a couple of guns while appellant would remain with Mann. When the trio arrived at Pioch's apartment building, Pioch took them to the wrong apartment, presumably to attract attention. When they failed to gain entry, they went outside to get Pioch to break a window. At this point, the tenant rapped on the window and said she had called the police, whereupon Simms and Smith fled.

Meanwhile, back at the apartment, appellant had tied up Mann with a cord from an electric fan and a cloth and had shoved him into a closet. Appellant came to the closet every few minutes to threaten and abuse Mann.

When Simms and Smith returned, appellant decided to free Mann, warning him not to report the incident to the police or he would kill Mann's wife and baby. As Mann was leaving the apartment, the police arrived with Pioch to arrest Simms, Smith and appellant Larkin.

Appellant first argues that the evidence is insufficient as a matter of law to support the verdict. After an independent review of the record, we hold that the above recited evidence, as well as other evidence in the record, is substantial evidence of probative value from which the jury could well have concluded that appellant was guilty beyond a reasonable doubt.

Appellant then makes the argument that the uncontroverted evidence shows he was intoxicated at the time of the offenses. Voluntary intoxication is no defense to or excuse for a crime, unless the defendant is shown to have been so intoxicated as to be incapable of forming the specific intent necessary to commit the crime. Snipes v. State (1974) 261 Ind. 581, 307 N.E.2d 470. Here, the jury considered the evidence presented on the issue of appellant's intoxication; however it simply chose to disbelieve it. It was within the prerogative of the jury to do so. Moreover, appellant failed to tender an instruction on the defense of intoxication. He cannot now claim error on the refusal to instruct. Miller v. State (1978) Ind., 372 N.E.2d 1168.

Appellant also makes a reference to an alleged evidentiary harpoon in which a prosecuting witness told the jury the name of Larry Weeten, the person who had first met the victims at the El Corral Restaurant. At the time of appellant's trial, Weeten had been charged with two counts of kidnaping and robbery in connection with the incident, but had not yet been arrested. First, the objection came after the question was asked and answered, and therefore was...