Moore v. State, No. 2-1177A426

Docket NºNo. 2-1177A426
Citation178 Ind.App. 95, 381 N.E.2d 523
Case DateOctober 23, 1978
CourtCourt of Appeals of Indiana

Page 523

381 N.E.2d 523
178 Ind.App. 95
Robert Eugene MOORE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2-1177A426.
Court of Appeals of Indiana, Fourth District.
Oct. 23, 1978.

[178 Ind.App. 96]

Page 524

John J. Rochford, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Elmer Loyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Appellant-defendant was convicted of theft, two counts. His appeal to this court presents three issues for our determination:

1. Whether the trial court erred in overruling appellant-defendant's Motion for a Directed Verdict at the close of the State's evidence.

2. Whether the verdict of the jury was supported by sufficient evidence, or was contrary to law.

3. Whether there was error in the trial court's judgment entered on the verdicts and the evidence.

ISSUE NO. 1

Upon the trial before a jury and at the close of the State's case, defendant made a timely motion for a directed verdict (judgment on the evidence) which was denied. Thereafter the defendant proceeded to offer evidence on his own behalf thus waiving any error on this question. Snyder v. State (1978), Ind., 373 N.E.2d 1101; Sypniewski v. State (1977), Ind., 368 N.E.2d 1359;Parker[178 Ind.App. 97] v. State (1976), Ind., 358 N.E.2d 110; Bush v. State (1978), Ind.App., 374 N.E.2d 564. See also Ind. Rules of Procedure, Trial Rule 50(A)(6).

ISSUE NO. 2

A summary of the evidence most favorable to the State discloses the following: In the early morning of March 27, 1977, the appellant-defendant entered a pool hall located on East 25th Street, in Marion County, Indiana. After staying for an undisclosed length of time he left only to return later that day. He asked the proprietor, who defendant had known for some time, to sell him some wine. For 20 to 30 minutes the appellant-defendant sat and "nibbled off the wine." While talking to the proprietor, two men entered the pool room, each carrying a handgun. Moore, who was unarmed, told the proprietor not to move because the two men were dangerous. Defendant testified that he had met these two men prior to entering the pool hall and agreed to split some wine with them. Several other customers were in the pool room and they were ordered to lie on the floor. The appellant-defendant remained standing next to the proprietor. 1 Appellant-defendant was instructed by nickname to collect the money. He took two watches and $50.00 from the pocket of a leather coat belonging to the proprietor plus $40.00 from another patron. Moore had seen the proprietor put money in the coat pocket and did not even check elsewhere for money of the proprietor. Nothing was taken from Moore. The two gunmen ordered appellant-defendant to leave with them, as their hostage, calling him by nickname and telling him to return to get his coat. Defendant still had the stolen money in his hand under his coat when they left. The proprietor testified that all three left in the defendant's car, with a fourth person at the

Page 525

wheel. 2 Defendant testified that the driver was his cousin.

The robbery was reported to police approximately one week later. Appellant-defendant never reported the incident to the police. Appellant-defendant was identified from photographs after police were told the [178 Ind.App. 98] license number of Moore's car used in the escape. Appellant-defendant told the proprietor later that he knew the two robbers and if the proprietor would "forget this," he would make sure that those two would not rob him again.

The State contends that appellant has limited the issue of the sufficiency of the evidence by arguing only that there was insufficient evidence of the value of the property allegedly taken. Appellant further raised a general sufficiency error in his Motion to Correct Errors and pursued it in his brief. Ind.R.Tr.P. 50(A) allows the issue of the sufficiency of the evidence to be raised for the first time on appeal in a criminal case. It follows that if complete omission of this issue from a motion to correct errors does not bar its consideration on appeal, imperfect inclusion will not do so either. Pinkler v. State (1977), Ind., 364 N.E.2d 126; See, Collins v. State (1977), Ind., 364 N.E.2d 750.

When the sufficiency of the evidence is raised upon appeal, this Court will consider only the evidence which is favorable to sustain the judgment below, together with all reasonable inferences to be drawn therefrom. If the evidence is...

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11 practice notes
  • Terpstra v. Farmers and Merchants Bank, No. 3-1284A340PS
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 1985
    ...them from liability should an innocent purchaser later have to defend against a lien. See Van Natta v. Crites (1978), 178 Ind.App. 113, 381 N.E.2d 523, reh. den. (liability for failure to record a lien on the title to an A property owner who has a lien recorded against his title is not with......
  • Ernst & Ernst v. Underwriters Nat. Assur. Co., No. 2-977A365
    • United States
    • Indiana Court of Appeals of Indiana
    • October 23, 1978
    ...society's interest is not in the welfare of the informant per se, but rather in creating conditions in which information possessed [178 Ind.App. 95] by news sources can reach public attention." Note, 80 Yale L.J. 317, 343 408 U.S. at 726 n. 2, 92 S.Ct. at 2672. Thus analyzed, the newsman's ......
  • Smith v. Insurance Co. of North America, No. 3-1279A355
    • United States
    • Indiana Court of Appeals of Indiana
    • October 21, 1980
    ...own behalf after the trial court denied this motion. France v. State, (1979) Ind.App., 387 N.E.2d 66; Moore v. State, (1978) Ind.App., 381 N.E.2d 523; Meadowlark Farms, Inc. v. Warken, (1978) Ind.App., 376 N.E.2d 122. Were we, however, to reach the merits of this allegation, we are of the o......
  • Royer v. Usaa Cas. Ins. Co., No. 3:09–CV–112.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • March 11, 2011
    ...and until the insurer puts the insured on notice that litigation is necessary if he desires to pursue the claim further.” Schafer, 381 N.E.2d at 523. In both instances it is clear that an insured would be lulled into believing the limitations period would not [781 F.Supp.2d 773] be enforced......
  • Request a trial to view additional results
11 cases
  • Terpstra v. Farmers and Merchants Bank, No. 3-1284A340PS
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 1985
    ...them from liability should an innocent purchaser later have to defend against a lien. See Van Natta v. Crites (1978), 178 Ind.App. 113, 381 N.E.2d 523, reh. den. (liability for failure to record a lien on the title to an A property owner who has a lien recorded against his title is not with......
  • Ernst & Ernst v. Underwriters Nat. Assur. Co., No. 2-977A365
    • United States
    • Indiana Court of Appeals of Indiana
    • October 23, 1978
    ...society's interest is not in the welfare of the informant per se, but rather in creating conditions in which information possessed [178 Ind.App. 95] by news sources can reach public attention." Note, 80 Yale L.J. 317, 343 408 U.S. at 726 n. 2, 92 S.Ct. at 2672. Thus analyzed, the newsman's ......
  • Smith v. Insurance Co. of North America, No. 3-1279A355
    • United States
    • Indiana Court of Appeals of Indiana
    • October 21, 1980
    ...own behalf after the trial court denied this motion. France v. State, (1979) Ind.App., 387 N.E.2d 66; Moore v. State, (1978) Ind.App., 381 N.E.2d 523; Meadowlark Farms, Inc. v. Warken, (1978) Ind.App., 376 N.E.2d 122. Were we, however, to reach the merits of this allegation, we are of the o......
  • Royer v. Usaa Cas. Ins. Co., No. 3:09–CV–112.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • March 11, 2011
    ...and until the insurer puts the insured on notice that litigation is necessary if he desires to pursue the claim further.” Schafer, 381 N.E.2d at 523. In both instances it is clear that an insured would be lulled into believing the limitations period would not [781 F.Supp.2d 773] be enforced......
  • Request a trial to view additional results

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