Sanders v. State, 870S195

• Decision Date: 23 February 1972
• Docket Number: No. 870S195,870S195
• Citation: 258 Ind. 11,279 N.E.2d 194
• Parties: Ola Lee SANDERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 194

279 N.E.2d 194

258 Ind. 11

Ola Lee SANDERS, Appellant, v. STATE of Indiana, Appellee.

No. 870S195.

Supreme Court of Indiana.

Feb. 23, 1972.

William C. Whitman, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., for appellee.

DeBRULER, Justice.

The appellant was charged with aggravated assault and battery and tried before the Honorable F. Kenneth Dempsey, Judge, and a jury, in the St. Joseph Superior Court. She was found guilty of the offense, and sentenced to not less than one nor more than five years in the Indiana State Women's Prison.

The appellant's main contention is that the evidence introduced against her was insufficient to sustain her conviction as a matter of law. The trier of fact, in this case a jury, found the appellant guilty as charged, and on them is reposed the primary duty to conscientiously weigh the evidence and to resolve all questions of credibility. The jury having decided, this Court will look only to that evidence and the reasonable inferences therefrom which could support the finding of the jury. Asher v. State (1969), Ind., 244 N.E.2d 89. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), Ind., 260 N.E.2d 558.

The jury as the final arbiter of fact was put to the ultimate test in this case by the bizarre conflicting evidence that it heard. The strange scenario of this case unfolded in the following manner. A man was shot in the left ear early in the morning of July 6, 1969. He apparently identified his assailant as one Melvin Lee Kelly and Mr. Kelly was charged with the crime. At the ensuing trial, on November 10, 1969, Ola Lee Sanders, the appellant here, testified that she had been the one who had fired the shots at the victim. She further testified that she was living with the defendant, Mr. Kelly, at the time of the incident and at the time of trial.

On November 13, 1969, three days after the appellant had testified that she was the assailant, she was charged with the same crime. The relevant portion of the charging affidavit reads as follows:

'that on or about the 6th day of July, 1969, at and in the County of St. Joseph, State of Indiana, one Ola Lee Sanders did intentionally inflict great bodily harm upon another person, to-wit: Leslie Buchanan, and that she did, at Chapin and Napier Streets, South Bend, County and State aforesaid, shoot at the person and body of said Leslie Buchanan with a certain pistol which she then and there held in her hand, causing said Leslie Buchanan to be injured in the right ear, contrary to the form of statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

At the appellant's trial, the victim, Mr. Leslie Buchanan, testified with unshakeable certainty that he had been shot by Melvin Lee Kelly on the morning of July 6, 1969. His testimony was that he had gone to collect a debt from Kelly and an argument had ensued. He left the scene in his automobile, but returned a few moments later and shouted to Kelly from his car that he had better pay his debt by the following day. At this time, according to his testimony, Kelly pulled out a pistol and fired five shots at him while he was sitting in the car. He managed to get out of the car and run down the street where he flagged down a passing police officer. He got in the police car and drove around the area looking for Kelly without success, and then was taken to the hospital. He testified that he did not see the appellant, Ola Lee Sanders, in the vicinity at any time during this incident. He was absolutely certain in his identification of his assailant.

The police officer in question testified that he was patrolling in the area, and heard five shots fired. He began to back his patrol car up to the corner where the shots had been fired when he met Mr. Buchanan who ran up to the car bleeding from his left ear. According to the officer, at that point, 'we put him in the car, took back to the corner. He pointed out where Melvin Kelly shot him. He was not there, however. We could not find anybody that he would identify. We took him to the hospital, took a report.' A second officer called to the scene testified that the victim's car was parked on the wrong side of the street near the corner of Napier and Chapin....