Lottie v. State, 1173S243

• Docket Nº: No. 1173S243
• Citation: 262 Ind. 124, 311 N.E.2d 800
• Case Date: June 10, 1974
• Court: Supreme Court of Indiana

Page 800

311 N.E.2d 800 262 Ind. 124 Robert Earl LOTTIE, Appellant,
v.
STATE of Indiana, Appellee. No. 1173S243. Supreme Court of Indiana. June 10, 1974.

[262 Ind. 125]

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John J. Roper, Chapleau, Roper, McInerny & Farabaugh, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The defendant (appellant) was convicted of armed robbery ¹ in a trial to the court. He was sentenced to [262 Ind. 126] imprisonment for a period of twenty-five years. His appeal to this Court challenges the sufficiency of the evidence and the admission of evidence of a pre-trial photographic identification. It is not necessary for us to discuss the pre-trial identification issue, as we reverse the trial court by reason of the insufficiency of the evidence.

When the sufficiency of the evidence is the issue presented upon appeal, we look only to the evidence favorable to the State and all reasonable inferences to be drawn therefrom. Brown v. State (1974), Ind., 308 N.E.2d 699, Turner v. State (1972), Ind., 287 N.E.2d 339, Gibson v. State (1971), 257 Ind. 23, 271 N.E.2d 706, Fuller v. State (1971), 256 Ind. 681, 271 N.E.2d 720. Neither do we judge the weight of the evidence nor the credibility of the witnesses. Brown v. State (supra), Turner v. State (supra), Gibson v. State (supra), Fuller v. State (supra). However, every criminal conviction must be supported by evidence upon each material element of the crime charged, and that evidence must be such as will support the essential conclusions beyond a reasonable doubt. Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641, Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6, Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639, Spears v. State (1970), 253 Ind. 370, 254 N.E.2d 203, Tom v. State (1973), Ind.,302 N.E.2d 494. We do not substitute our judgment for that of the trier of facts, if it can be said that the essential conclusions drawn were reasonable. But, if we determine that [262 Ind. 127] a reasonable man could not have drawn those essential conclusions from the evidence presented, then the evidence is insufficient as a matter of law, and under such circumstances it is our duty to reverse the judgment. Baker v. State (supra), Easton v. State (supra), Vuncannon v. State (supra).

The defendant, a young black male approximately five feet eight inches tall, was

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seen approximately fifteen minutes before the robbery took place. He was with three black companions at a high school in South Bend situated approximately four miles from the scene of the crime. He had a toothpick in his mouth, and one of his companions was wearing a brown checked shirt.

The victims of the robbery were Mr. and Mrs. Nowak, who operated a grocery store in South Bend. The robbers were three young black men. They entered the store, and as Mrs. Nowak began to serve them, one said 'Just hold it right where you are,' and the one alleged to be the defendant brandished a gun. Another forced Mr. Nowak to lie on the floor, while the armed one walked around the meat counter, had Mrs. Nowak show him how the cash register operated and proceeded to empty it. One of the robbers ordered Mr. and Mrs. Nowak to the basement, but before they reached the bottom of the steps, the armed one escorted Mrs. Nowak back upstairs to open the safe. She opened it and observed him empty it.

Altogether the robbers were in the Nowak store and their attached residence for about twenty minutes. Unfortunately, only Mrs. Nowak had an opportunity to observe them. She was in their presence during a substantial portion of that time. She testified at the trial that during the robbery she concentrated upon the one robber who had the gun and upon being able to identify him, to the exclusion of the...