Russell v. State, No. 1281S364

Docket NºNo. 1281S364
Citation438 N.E.2d 741
Case DateAugust 12, 1982
CourtSupreme Court of Indiana

Page 741

438 N.E.2d 741
Robert L. RUSSELL, Jr., Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1281S364.
Supreme Court of Indiana.
Aug. 12, 1982.

Page 742

Christopher C. Zoeller, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Robert L. Russell, Jr., was convicted by a jury of murder, Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.), battery, a class C felony, Ind.Code Sec. 35-42-2-1 (Burns 1979 Repl.), and found to be an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1982 Supp.). He was sentenced to concurrent terms of thirty and five years for his respective crimes; the sentence was enhanced by an additional thirty years for his habitual offender status. In his direct appeal, he presents the following issues for our review:

1. Whether the evidence was sufficient to support the jury's conclusion that defendant possessed the intent to murder the victim; and

2. Whether defendant's habitual offender conviction must be reversed as a result of prosecutorial misconduct in the final argument phase of the proceedings.

The record reveals that on New Year's Eve of 1979, Donald Coleman and Dennis

Page 743

Hart suffered gunshot wounds while attending a party at the Hart residence, located at 4337 Guilford Avenue in Indianapolis, Indiana. Coleman died of the wounds, which several witnesses testified were inflicted by the defendant.

I.

Defendant maintains the evidence was not sufficient to sustain the jury's conclusion that at the time of the shooting, he possessed the intent requisite to the commission of murder. Ind.Code Sec. 35-42-1-1, supra. He asserts that the trial court erred in overruling his motion for a directed verdict at the close of the state's case-in-chief; likewise, he maintains the court again erred by overruling his motion when he renewed it at the close of all evidence. Here, he consolidates his argument concerning the denial of the motions.

Likewise, we treat the issues as one. Technically, of course, defendant waived his right to challenge the court's denial of his motion for a directed verdict at the close of the state's case when thereafter he proceeded to present evidence on his own behalf. Miller v. State, (1981) Ind., 417 N.E.2d 339; Love v. State, (1980) Ind., 400 N.E.2d 1371. We also note that a trial court's refusal to direct a verdict at the close of the state's case-in-chief is proper if there is sufficient evidence to support the fact-finder's verdict. Ind.R.Tr.P. 50(A)(6); Catenacci v. State, (1982) Ind., 436 N.E.2d 1134; Scott v. State, (1980) Ind.App., 409 N.E.2d 1184.

In order to avoid an adverse directed verdict, it is necessary only that the state establish a prima facie case; a directed verdict is properly granted only if there is an absence of evidence on an essential element of the crime, or where the evidence is not in conflict and gives rise to inferences only in favor of the accused. Page v. State, (1980) Ind., 410 N.E.2d 1304; Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d 1081.

In our review of rulings by the trial court on motions for a directed verdict, we do not weigh the evidence or judge the credibility of witnesses. Rather, we examine only that evidence most favorable to the court's ruling, together with the reasonable inferences which can be drawn therefrom. If, from that viewpoint, there is evidence from which a jury could conclude the defendant committed the elements of the crime charged, the court's ruling will not be disturbed. Page v. State, supra; Collins v. State (1981) Ind., 415 N.E.2d 46.

Defendant maintains the evidence inalterably reveals that although he fired the shots which struck the victims, he acted in self-defense. As a matter of law, his argument fails.

The record reveals that the shooting was precipitated by a quarrel between defendant and Ben Collier, a guest at the party. Collier testified he accidentally bumped defendant near the dance floor; although he repeatedly apologized to defendant, the latter refused to accept the apology. An argument ensued. According to several witnesses, the defendant suddenly revealed a handgun; several persons then gathered around defendant and backed him onto the porch, where they requested that he leave the party.

According to the record, a discussion ensued for approximately five to ten minutes on the front porch between defendant and Douglas Hart, who testified that defendant calmed down and was about to leave when other...

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6 practice notes
  • Bardonner v. State, No. 29A04-9107-CR-225
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 March 1992
    ...by repeated instances of misconduct and the cumulative impact may require reversal." Id. (citing Russell v. State (1982), Ind., 438 N.E.2d 741.) The language of Hall and Evans does not indicate that the prosecutor's one reading would rise to the level of reversible Finally, I cannot agree w......
  • Gajdos v. State, No. 383S81
    • United States
    • Indiana Supreme Court of Indiana
    • 30 April 1984
    ...of the state's case, he has waived his right to challenge the denial of his motion for a directed verdict. Russell v. State, (1982) Ind., 438 N.E.2d 741; Miller v. State, (1981) Ind., 417 N.E.2d 339. Nevertheless, we will treat the issues as one and discuss the matter in the context of a su......
  • Leavell v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 17 November 1983
    ...by the trial court on motions for a directed verdict we do not judge the credibility of the witnesses. Russell v. State, (1982) Ind., 438 N.E.2d 741, It cannot be said that there was an absence of evidence upon the element of taking or that the evidence was without conflict and inferences t......
  • Moore v. State, No. 64A04-8912-CR-00592
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 April 1991
    ...or where the evidence is not in conflict and gives rise to inferences only in favor of the accused." Russell v. State (1982), Ind., 438 N.E.2d 741, Moore argues that his striking Ullom's window with a knife does not prove beyond a reasonable doubt that he intended to confine her or remove h......
  • Request a trial to view additional results
6 cases
  • Bardonner v. State, No. 29A04-9107-CR-225
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 March 1992
    ...by repeated instances of misconduct and the cumulative impact may require reversal." Id. (citing Russell v. State (1982), Ind., 438 N.E.2d 741.) The language of Hall and Evans does not indicate that the prosecutor's one reading would rise to the level of reversible Finally, I cannot agree w......
  • Gajdos v. State, No. 383S81
    • United States
    • Indiana Supreme Court of Indiana
    • 30 April 1984
    ...of the state's case, he has waived his right to challenge the denial of his motion for a directed verdict. Russell v. State, (1982) Ind., 438 N.E.2d 741; Miller v. State, (1981) Ind., 417 N.E.2d 339. Nevertheless, we will treat the issues as one and discuss the matter in the context of a su......
  • Leavell v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 17 November 1983
    ...by the trial court on motions for a directed verdict we do not judge the credibility of the witnesses. Russell v. State, (1982) Ind., 438 N.E.2d 741, It cannot be said that there was an absence of evidence upon the element of taking or that the evidence was without conflict and inferences t......
  • Moore v. State, No. 64A04-8912-CR-00592
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 April 1991
    ...or where the evidence is not in conflict and gives rise to inferences only in favor of the accused." Russell v. State (1982), Ind., 438 N.E.2d 741, Moore argues that his striking Ullom's window with a knife does not prove beyond a reasonable doubt that he intended to confine her or remove h......
  • Request a trial to view additional results

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