Moore v. State

• Citation: 178 Ind.App. 95,381 N.E.2d 523
• Decision Date: 23 October 1978
• Docket Number: No. 2-1177A426,2-1177A426
• Parties: Robert Eugene MOORE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

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.

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 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 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 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 such that a reasonable trier of fact could find each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed. Baum v. State (1976), Ind., 345 N.E.2d 831. It is not this Court's province to judge the relative weight of the evidence or the credibility of the witnesses. Rosell v. State (1976), Ind., 352 N.E.2d 750.

See, Owens v. State (1978), Ind., 375 N.E.2d 203; Hudson v. State (1978), Ind., 375 N.E.2d 195; Brandon v. State (1978), Ind., 374 N.E.2d 504; Grimm v. State (1978), Ind., 374 N.E.2d 501.

In his brief appellant concedes that it was established that defendant did take less than $100.00 from each of two people. The evidence is sufficient to support this. Appellant in the same sentence argues that the evidence showed he did so under the threat of violence to himself. He argues that it was not reasonable for the jury to conclude that defendant committed a theft (robbery) in the situation presented.

Coercion or duress is a defense to prosecution for a criminal act. The Supreme Court of Indiana stated in Ross v. State (1907), 169 Ind. 388, 390, 82 N.E. 781:

". . . '(As to) the necessity or compulsion which (excuses) a criminal act (it) must be clear and conclusive, and must arise without the negligence or fault of the person who insists upon it as a defense. The alternative presented must be instant and imminent, and there must be, if not a physical, at least a moral necessity for the act . . . If a person is compelled to commit a crime by threats of violence sufficient to induce a well-grounded apprehension of death or serious bodily harm in case of refusal, this excuses him.' . . ."

It has long been recognized that credibility of a witness is within the exclusive province of the trier of fact. The importance of allowing the trier of fact to judge the credibility of the witnesses has been described by our Indiana Supreme Court as follows:

". . . In considering the weight of the testimony by this court, it must be remembered that such evidence comes before us merely in written words; while the court and jury trying the cause have it from the living voice, with whatever peculiar accent, emphasis, or intonation it may have; and that they see the witness, his countenance, looks, expression of face, manner, readiness, or reluctance, and the many nameless indices of truth or falsehood which it is impossible to put in words. A statement of facts in words, though testified to by different witnesses, of various degrees of credibility, comes to us with the same weight, while to the court and jury their weight would be, in some instances, the full import of the words, and in others scarcely worth consideration. Hence it is that the credibility of a witness is a question solely for the jury, they being the triors (triers) of fact; and the presumption in this court must be that they understood their duty, and performed it. . . ." Cox v. State (1875), 49 Ind. 568, 571.

Hood v. State (1974), 160 Ind.App. 667, ...