Mickens v. State, No. 472A183

Docket NºNo. 472A183
Citation290 N.E.2d 758, 155 Ind.App. 47
Case DateDecember 29, 1972
CourtCourt of Appeals of Indiana

Page 758

290 N.E.2d 758
155 Ind.App. 47
Harvey MICKENS, Jr., Appellant,
v.
STATE of Indiana, Appellee.
No. 472A183.
Court of Appeals of Indiana, Second District.
Dec. 29, 1972.

[155 Ind.App. 48]

Page 759

Gil I. Berry, Jr., Buck, Berry, Landau & Breunig, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Harry L. Sauce III, Deputy Atty. Gen., for appellee.

[155 Ind.App. 49] BUCHANAN, Presiding Judge.

CASE SUMMARY. This is an appeal by defendant-appellant, Harvey Mickens, Jr. (Mickens) from a conviction after trial by jury of assault and battery with inent to commit a felony in violation of Ind.Ann.Stat. Sec. 10--401 (Burns 1972 Supp.) IC 1971, 35--1--54--3. We affirm.

FACTS. The facts and evidence most favorable to the State and the judgment are:

At about 1:45 p.m. on June 21, 1971, Martha I. Reed, (Reed) a secretary for the Murat Shrine Club, Inc. (Club) left the Club building at 520 North New Jersey Street in Indianapolis, Indiana, to take the Club's receipts to the bank for deposit. As she walked across the open parking lot to her car, an unmasked man grabbed her arm, turned her around and said he wanted her money. He grabbed for her purse, but she pulled away. After he pointed a gun at her she gave him the canvas money bags imprinted with the Club name and bank numbers, containing $4,068.64 in cash, $815.88 in checks and $43.32 in Bank Americard slips and he then ran from the parking lot. The incident during which

Page 760

Reed observed the man at close range took about two or three minutes.

At the trial Reed testified that the money in the canvas bags was the property of the Club.

Robert Stone (Stone), a member of the Club, was leaving the Club in his car at about 1:45 p.m., on June 21, and he observed a man running across the parking lot with the canvas money bags. He followed the man in his car from the parking lot and he drove along beside him as he ran along Alabama Street for about one hundred yards to the Riley Towers parking lot. Stone was able to observe Mickens face to face.

On June 22, 1971, Reed looked through a large number (perhaps 200 or more) of photographs at police headquarters, but she was unable to make an identification. Two or three days later, Sgt. Berry of the Indianapolis Police Department came to Reed's home and showed her two additional photographs. [155 Ind.App. 50] She positively identified a photograph of Mickens as the man who had taken the money from her. Stone also positively identified a photograph of Mickens from four photographs shown to him by Sgt. Berry several days after the incident. Both Reed and Stone positively identified Mickens at trial.

Mickens was charged by affidavit with robbery in violation of Ind.Ann.Stat. § 10--4101 (Burns 1956 Repl.) IC 1971, 35--13--4--6 which alleged that the money was the property of 'Murat Shrine Club, Inc., a corporation.' and that the money (property) was 'lawfully held in her possession.' Found guilty of assault and battery with intent to commit a felony, he was sentenced to the Indiana State Reformatory for a term of not less than one (1) nor more than ten (10) years.

ISSUES

ISSUE ONE. Was the State required to prove that the property taken was owned by a legal entity, The Murat Shrine Club Inc., as charged in the affidavit?

ISSUE TWO. Was the in court identification of Mickens so tainted by the pre trial identification procedures as to be insufficient as a matter of law to sustain the conviction?

ISSUE THREE. Did the trial court err in permitting the State to amend its list of witnesses on the day of trial?

As to ISSUE ONE, Mickens contends the State was required to prove that the property taken from Reed was owned by Club as alleged in the affidavit and that by failing to prove that Club was a legal entity on that date, the State failed to meet its burden of proof as to an essential element of the crime. In reply, the State contends ownership is not an essential element of the crime of robbery, nor of the lesser included offense of assault and battery with intent to commit a felony, and that the evidence presented is sufficient to prove that the property was owned by one other than Mickens.

[155 Ind.App. 51] As to ISSUE TWO, Mickens contends the identification of him at trial was insufficient, as a matter of law, to sustain the conviction because it was tainted by the highly suggestive nature of the pretrial identification procedure. In reply, the State asserts Mickens has waived this issue by his failure to present it to the trial court, that the pretrial identification was properly conducted, and that the in court identification was of independent origin and therefore sufficient to sustain the conviction.

As to ISSUE THREE, Mickens contends the State should not have been allowed to amend its list of witnesses on the day of trial because this forced him to either proceed to trial without adequate preparation or to accept the offered continuance, which because of his indigency, would have compelled him to spend additional time in jail,...

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4 practice notes
  • Butler v. State, No. 2-577-A-155
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 1978
    ...charged with Robbery, Assault and Battery with Intent to Commit a Felony: Robbery is a lesser included offense. Mickens v. State (1972), 155 Ind.App. 47, 290 N.E.2d 758. The law of Indiana is well established that an accused may be found guilty of a lesser offense although the major offense......
  • Jones v. State, No. 2-1177A438
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1978
    ...unlawful taking; 2) from the person of another; 3) of any article of value; 4) by violence or putting in fear." Mickens v. State (1972), 155 Ind.App. 47, 290 N.E.2d 758 at 761 (See also Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538; Jones v. State (1970), 255 Ind. 57, 262 N.E.2d The......
  • Dunn v. State, No. 1--174A16
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 1974
    ...from the person of another (3) of any article of value (4) by violence or putting in Page 836 fear. Mickens v. State (1972), Ind.App., 290 N.E.2d 758. The testimony of Cassady clearly provides a sufficient basis for a finding upon each element of the crime of robbery. Similarly, that testim......
  • Middlekamp v. State Exchange Finance Co., No. 3--672A22
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1972
    ...upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial [155 Ind.App. 47] court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to ......
4 cases
  • Butler v. State, No. 2-577-A-155
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 1978
    ...charged with Robbery, Assault and Battery with Intent to Commit a Felony: Robbery is a lesser included offense. Mickens v. State (1972), 155 Ind.App. 47, 290 N.E.2d 758. The law of Indiana is well established that an accused may be found guilty of a lesser offense although the major offense......
  • Jones v. State, No. 2-1177A438
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1978
    ...unlawful taking; 2) from the person of another; 3) of any article of value; 4) by violence or putting in fear." Mickens v. State (1972), 155 Ind.App. 47, 290 N.E.2d 758 at 761 (See also Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538; Jones v. State (1970), 255 Ind. 57, 262 N.E.2d The......
  • Dunn v. State, No. 1--174A16
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 1974
    ...from the person of another (3) of any article of value (4) by violence or putting in Page 836 fear. Mickens v. State (1972), Ind.App., 290 N.E.2d 758. The testimony of Cassady clearly provides a sufficient basis for a finding upon each element of the crime of robbery. Similarly, that testim......
  • Middlekamp v. State Exchange Finance Co., No. 3--672A22
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1972
    ...upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial [155 Ind.App. 47] court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to ......

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