Mendelvitz v. State

• Decision Date: 24 February 1981
• Docket Number: No. 1-980A248,1-980A248
• Citation: 416 N.E.2d 1270
• Parties: Shlomo MENDELVITZ, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1270

416 N.E.2d 1270

Shlomo MENDELVITZ, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-980A248.

Court of Appeals of Indiana, First District.

Feb. 24, 1981.

Keith A. Dilworth, Richmond, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

A jury in the Wayne Superior Court No. 1 found Shlomo Mendelvitz guilty of robbery, a class C felony. On appeal, Shlomo raises the following issues:

I. Whether the verdict of the jury is contrary to law;

II. Whether there is sufficient evidence to sustain the jury's verdict;

III. Whether the trial court erred in overruling the defendant's motion to suppress evidence obtained by an allegedly illegal search of an automobile;

IV. Whether the court erred in admitting into evidence State's exhibits Nos. 2, 3, 4, and 5, consisting of photographs used in identifying the defendant.

We affirm.

DISCUSSION AND DECISION

Issues I and II.

When reviewing the sufficiency of the evidence, we will consider only the evidence most favorable to the State, together with all reasonable inferences to be drawn therefrom. If there is sufficient evidence of probative value from which a reasonable trier of fact could have found the existence of each element of the crime beyond a reasonable doubt, we will not set aside the conviction. Whorton v. State, (1980) Ind.App., 412 N.E.2d 1219.

The evidence most favorable to the State shows that on July 11, 1979, Shlomo was at a rest stop on Interstate 70. There he met the victim, Henry Blacker, and the two struck up a conversation. Shlomo told Blacker he was waiting for a ride to Columbus, Ohio, but his driver had not yet arrived. Blacker lived nearby. He offered Shlomo the small, extra bedroom in his trailer for the night and said he would bring Shlomo back to the interstate highway the next morning. The two men proceeded to Blacker's trailer, where they drank coffee and watched television, and then retired for the night.

Sometime later, Shlomo entered Blacker's bedroom armed with a handgun. Shlomo told Blacker his finger was "very itchy" and warned Blacker not to do anything foolish. Shlomo went through Blacker's bureau drawers and examined some of his other possessions, then ordered Blacker to take him back to I-70. Blacker complied. At an I-70 interchange, Shlomo, continuing to brandish the weapon, ordered Blacker to get out of the car. Blacker again complied; Shlomo drove away.

On August 26, 1979, an officer of the Golden Beach, Florida, police department stopped an automobile improperly displaying New York license plates. By routine computer check the officer determined the vehicle had been reported stolen. The driver, Shlomo Mendelvitz, was arrested. The officer searched the vehicle for the purpose of inventorying its contents prior to impoundment. The officer found, among other items, a 32-caliber revolver in the glove compartment.

At trial, Shlomo admitted taking Blacker's car. He admitted purchasing a gun in Columbus, Ohio, on July 10, 1979. Nevertheless, Shlomo testified in his defense that in response to a homosexual advance by Blacker at the trailer he asked Blacker to take him back to the highway. After Blacker drove him to I-70, Shlomo suggested that he could drive. When Blacker got out of the car and started around to the passenger side, Shlomo drove away. Shlomo testified he took the car in order to punish Blacker for his actions. He repeatedly testified, however, that he was not armed.

Shlomo was charged with robbery, a class B felony. He argues there was no evidence of threat of force without reference to a handgun, therefore the jury's verdict, convicting him of the class C felony, is not supported by sufficient evidence and is contrary to law. Shlomo asserts he should have been convicted of theft.

There is no question that, under the previous criminal code, robbery ¹ was a lesser included offense of commission of a felony while armed, to-wit: robbery. ² Dembowski v. State, (1968) 251 Ind. 250, 240 N.E.2d 815; Taylor v. State, (1968) 251 Ind. 236, 236 N.E.2d 825; Cross v. State, (1956) 235 Ind. 611, 137 N.E.2d 32.

In Cross, supra, the defendant was charged with robbery while armed but convicted of robbery. Our Supreme Court held that robbery was a lesser included offense of commission of a felony while armed, and affirmed the conviction.

In Taylor, supra, the defendant was charged with, and convicted of, robbery. The defendant, in an attempt to avail himself of the lesser penalty provided under the felony while armed statute, ³ asserted on appeal that the evidence unequivocally showed he had committed the crime while armed with a gun, and therefore he should have been charged with, and convicted of, the offense of commission of a felony while armed. The Supreme Court, citing Cross, supra, again held robbery was a lesser included offense of commission of a felony while armed. The court further stated:

"Even though the evidence is sufficient to show that the accused is guilty of a certain offense, he may be convicted of a lesser included offense. This rule has been applied to criminal actions, as in the case at bar, where the defendant is charged only with the lesser offense but the proof shows the commission of a greater offense which includes the lesser one charged. Caudill v. State (1946), 224 Ind. 531, 69 N.E.2d 549....

The State has the right to decide under which criminal statute it wishes to prosecute, for it is within the prosecutor's discretion and judgment to determine what offense can be proved with the evidence at hand. Moreover, it is within the prosecutor's discretion to recommend a lesser charge in exchange for the accused's guilty plea. There is no rule of law giving a criminal defendant the right under any circumstances to select the crime for which he is to be tried. Durrett v. State (1966), 247 Ind. 692, 219 N.E.2d 814; Palmer v. State (1926), 197 Ind. 625, 150 N.E. 917; Young v. State (1923), 194 Ind. 221, 141 N.E. 309."

251 Ind. at 240-241.

Ind.Code 35-42-5-1 (Supp.1980) provides:

"A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear;

commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person."

Under Ind.Code 35-42-5-1 the class C felony of robbery is an inherently lesser included offense of the class B felony of robbery while armed with a deadly weapon. Lewis v. State, (1980) Ind.App., 406 N.E.2d 1226. ⁴ The jury was instructed regarding the elements of the offenses of robbery while armed, robbery, and theft, and was provided with verdict forms for all three offenses. The jury returned a guilty verdict convicting Shlomo of the class C felony of robbery.

An included offense may be established by proof of the same material elements required to establish the commission of the offense charged. Ind.Code 35-41-1-2 (Supp.1980). The nature of the threatened force is not material in the definition of robbery as a class C felony. Any threat of force, conveyed by word or gesture, or by the brandishing of a gun, knife, or some other deadly weapon, will suffice. The fact that the same proof, here the gun, would support a conviction of the greater offense, the class B felony, is not a circumstance of which Shlomo may complain. Caudill v. State, (1946) 224 Ind. 531, 69 N.E.2d 549. There is sufficient evidence to sustain the jury's verdict.

Issue III.

Shlomo objected to the admission of State's exhibits Nos. 9, 10, and 11, i. e., a gun, bullets, and an Israeli passport, and moved to suppress testimony regarding the items discovered during the search of the automobile. The trial court admitted the exhibits and allowed the testimony ruling (1) the evidence was the product of a valid inventory search, and (2) Shlomo had no standing to object to the search. On appeal Shlomo contends State failed "to meet the requirements for a valid inventory search." ⁵

The exclusionary rule effectuates the guarantees of the Fourth Amendment to the Constitution of the United States. The issue is whether the challenged search or seizure violated the Fourth Amendment rights of the criminal defendant before us who seeks to exclude the evidence obtained thereby. In Pollard v. State, (1979) Ind., 388 N.E.2d 496, 502, our Supreme Court established the following guideline for the determination of that issue:

"(1) (W)as there a constitutional violation, i. e., was the search and seizure unreasonable within the meaning of the Fourth Amendment, and;

(2) (I)f so, were the rights thereby violated the rights of the defendant or some other person."

As evidence reveals, the officer stopped Shlomo because the automobile he was driving improperly displayed only one New York license plate. Shlomo attempted to evade the police officer. When stopped, Shlomo could not produce a vehicle registration. A computer check indicated the automobile had been reported stolen in Indiana. The officer arrested Shlomo. The...