Luckett v. State, 2-1276A447

• Decision Date: 26 October 1978
• Docket Number: No. 2-1276A447,2-1276A447
• Parties: Varnador LUCKETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 560

381 N.E.2d 560

178 Ind.App. 156

Varnador LUCKETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-1276A447.

Court of Appeals of Indiana, Fourth District.

Oct. 26, 1978.

Noble R. Pearcy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

The appellant, Varnador Luckett, was charged by information on two counts: robbery and the commission of a felony while armed. The jury found him guilty of the latter, which conviction he now challenges.

Luckett's Motion to Correct Errors assigns as erroneous a failure to give a circumstantial evidence instruction to the jury even though he had tendered a suitable one, the admission of money found on his person in the absence of some showing of connection with the offense charged, the overruling of his Motion for Discharge pursuant to Criminal Rule 4(A) of the Indiana Rules of Procedure, and the overruling of his Motion to Suppress Evidence. In addition, the sufficiency of the evidence is challenged both generally and with regard to identifying Luckett as a participant in the robbery.

Luckett's appellate brief lists these assigned errors in the statement of the issues, but the argument section and the summary of the argument discuss only two. The law is clear that issues which are not discussed in the argument section of an appellate brief are waived. Crosson v. State, (1978) Ind., 376 N.E.2d 1136, 1139; Guardiola v. State, (1978) Ind., 375 N.E.2d 1105, 1107. Therefore, we will only consider whether the trial court erroneously refused Luckett's tendered instruction, and whether the evidence was such that a jury could reasonably find Luckett guilty.

Luckett claims that because there was no direct evidence of his guilt, the jury should have been given an instruction on circumstantial evidence. Our examination of the record discloses that they were so instructed, and as follows:

Evidence may be either direct of circumstantial. Direct evidence is evidence of the existence of a particular fact which is in issue. Circumstantial evidence is evidence of other facts from which the existence of a particular fact in issue may be legitimately inferred.

No greater degree of certainty is required where the evidence is circumstantial than when it is direct, for, in either case, the jury must be convinced beyond a reasonable doubt of the defendant's guilt.

There was no error in the trial court's refusal of Luckett's offered instruction; such a refusal is a ground for reversal only if, in light of the evidence, the substance of the instruction was required to be given and was not adequately covered by other instructions actually given. Carroll v. State, (1975) 263 Ind. 696, 338 N.E.2d 264, 272; Jones v. State, (1975) Ind.App., 334 N.E.2d 716. As in the Jones case, Luckett's tendered instruction is only a restatement of the general rule that the trier of fact must find a criminal defendant guilty beyond a reasonable doubt. This rule is quite adequately stated in the court's instruction set out above.

With regard to Luckett's claim of insufficient evidence, we will not weigh the evidence or determine the credibility of witnesses but will look only to the evidence, and inferences arising therefrom, most favorable to the judgment. If there is substantial evidence of probative value in support of each element, the judgment must be affirmed. Faust v. State, (1977) Ind., 366 N.E.2d 175.

The evidence most favorable to the judgment is that twenty minutes to a half hour past midnight two black men entered a grocery store on North Michigan Road, Indianapolis. They went into the rear of the store, then approached the checkout counters in the front. One came up to a checkout counter, aimed a gun at the cashier, and told her to lie...