Proctor v. State

Decision Date20 December 1979
Docket NumberNo. 879S236,879S236
Citation272 Ind. 357,397 N.E.2d 980
PartiesJeffrey PROCTOR, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Supreme Court

Gary R. Landau and Preston T. Breunig, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of three counts of armed robbery, class B felonies, Ind.Code 35-42-5-1 (Burns 1979). He was sentenced to fifteen years upon each count, with the terms of imprisonment to run concurrently. His appeal presents the following issues:

(1) Whether the trial court erred in admitting into evidence, over objection, a sawed-off shotgun recovered by police during Defendant's arrest.

(2) Whether the trial court erred in denying Defendant's motion for a directed verdict.

(3) Whether the verdicts were supported by sufficient evidence.

ISSUE I

The three victims testified that they were in a poolroom when three men entered and robbed them. One of the robbers carried a sawed-off shotgun. Two of the robbers wore ski masks; however, Defendant's face was not covered, and he was recognized by two of the victims who had seen him in the poolroom on previous occasions. According to the witnesses, the defendant carried a handgun during the robberies.

Defendant was arrested three days later when police found him in a parked car. In the car was a ski mask and a sawed-off shotgun. One of the victims identified the shotgun as the same one used in the robbery.

Prior to the State's offer of the shotgun into evidence, defense counsel requested a hearing outside the presence of the jury. At that hearing, he objected to the admission of the shotgun because the State never alleged that the defendant had carried or used it. The trial court suggested that it was part of the Res gestae, and defense counsel agreed. However, he continued that he did not believe that it could be identified, and he finally argued that he did not want it "tied" to the defendant because it was "mean looking." When the State later offered the shotgun into evidence, defense counsel objected only that it had not been "tied to the crime."

On appeal, Defendant vacillates among various grounds in support of his contention that the shotgun was erroneously admitted into evidence. It is settled that the grounds for objection to the admission of evidence asserted on appeal may not differ from those asserted at trial. E. g., Beasley v. State, (1977) 267 Ind. 396, 370 N.E.2d 360. Nevertheless, a brief review of Defendant's arguments show that they are without merit.

Defendant asserts that the shotgun was inadmissible as part of the Res gestae because it was never shown that he had carried the gun during the robberies. There was ample evidence from which the jury could infer that the defendant and the other two men acted in concert during the robberies. Grimes v. State, (1972) 258 Ind. 257, 280 N.E.2d 575, involved a robbery in which there was more than one participant; there we held that "(a)ny and all acts" of those acting in concert during a robbery "are part of the Res gestae and as such are admissible in evidence, * * *." Here, testimony that one of the men carried the shotgun was admissible as part of the Res gestae ; therefore, the gun itself was properly admitted.

Defendant next contends that there was not a proper evidentiary foundation in that the State failed to show that the shotgun was the same one used in the robberies. We have held that positive proof or authentication of an object is not necessary for the admission of that object into evidence. Elliott v. State, (1972) 258 Ind. 92, 279 N.E.2d 207. It is sufficient that one of the victims was able to identify the gun because he remembered something unusual about the handle.

Finally, Defendant argues that no chain of custody was established. However, he makes no claim of substitution, tampering, mistake, or inability to trace the gun after it was taken into police custody.

Nonfungible items do not require the high degree of scrutiny that must be applied to fungible items. Wilson v. State, (1975) 263 Ind. 469, 333 N.E.2d 755. The shotgun was evidence capable of eyewitness identification. It is a sufficient foundation for the introduction of such an item that a witness identifies it and it is relevant to the issues of the case. Woodard v. State, (1977) 267 Ind. 19, 366 N.E.2d 1160.

ISSUES II & III

Defendant's next assignments of error can be consolidated. He asserts that the trial court erred in overruling his motion for a directed verdict. Further, he contends that the evidence was insufficient to sustain the jury's verdicts. As to both issues, he contends that the State failed to prove all the necessary elements of robbery. Specifically, he contends that the State did not show that he took any property or that he placed anyone...

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37 cases
  • Joy v. State
    • United States
    • Indiana Appellate Court
    • 8 Marzo 1984
    ...Harden v. State, (1982) Ind., 441 N.E.2d 215, cert. denied --- U.S. ----, 103 S.Ct. 794, 74 L.Ed.2d 998 (1983), and Proctor v. State, (1979) 272 Ind. 357, 397 N.E.2d 980. The gist of these cases is that the acts of a confederate in the commission of a crime may be imputed to a defendant who......
  • State v. Lewis
    • United States
    • Indiana Supreme Court
    • 31 Diciembre 1981
    ...the evidence is without conflict and susceptible to only one inference and that inference is in favor of the defendant. Proctor v. State, (1979) Ind., 397 N.E.2d 980; Williams v. State, (1979) Ind., 395 N.E.2d 239; Estep v. State, (1979) Ind., 394 N.E.2d 111; Mitchell v. State, (1978) 268 I......
  • Caccavallo v. State
    • United States
    • Indiana Supreme Court
    • 21 Junio 1982
    ...of evidence asserted on appeal must be the same as those asserted at trial. Phelan v. State, (1980) Ind., 406 N.E.2d 237; Proctor v. State, (1979) Ind., 397 N.E.2d 980; Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639. The objection made on appeal is waived if the grounds differ from tho......
  • State v. Marchesano, 1
    • United States
    • Arizona Court of Appeals
    • 13 Junio 1989
    ...a probable and natural consequence of their common plan." Karlos v. State, 476 N.E.2d 819, 822 (Ind.1985) citing Proctor v. State, 272 Ind. 357, 360, 397 N.E.2d 980, 983 (1979) (emphasis added). The accessory need not act out each element of the charged offense; the acts of one accomplice a......
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