Spivey v. State
| Decision Date | 08 June 1982 |
| Docket Number | No. 381S59,381S59 |
| Citation | 436 N.E.2d 61 |
| Parties | Clinton SPIVEY, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Walter E. Bravard, Jr., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Robbery, Ind.Code § 35-42-5-1 (Burns 1979), Criminal Confinement, Ind.Code § 35-42-3-3 (Burns 1979), Kidnapping, Ind.Code § 35-42-3-2 (Burns 1979), and Attempted Murder, Ind.Code § 35-41-5-1 (Burns 1979) and of being a Habitual Offender, Ind.Code § 35-50-2-8 (Burns 1979) and was sentenced to a total of ninety (90) years imprisonment. This direct appeal seeks review upon the following issues:
(1) Whether the evidence was sufficient to sustain the verdicts?
(2) Whether the trial court erred in denying the Defendant's motion for a continuance seeking additional time in which to retain private counsel.
The Defendant entered the office of an oil station on February 29, 1980, drew a revolver, and ordered two employees to go into a back room. He then ordered the employees to open the station safe. After he had emptied the safe of its contents, the Defendant pointed his gun at the employees and ordered them to lie on the floor for five minutes. He then fled, and the two employees immediately began to chase him.
One of the employees testified that he saw the Defendant turn and point a gun at him, and that he heard a shot fired shortly thereafter. Police later found one spent cartridge and two live cartridges in the Defendant's revolver. The Defendant commandeered an automobile in a nearby parking lot by pointing his revolver at the car's two occupants and ordering them to drive away. When the police caught up to the automobile, Defendant held one occupant hostage with a gun to her head until he was finally subdued. The oil station's money was recovered from Defendant's jacket.
Defendant argues that the evidence was insufficient to sustain the convictions for confinement, attempted murder, or habitual offender status.
Confinement is defined as the knowing or intentional interference with another person's freedom of movement without their consent. Ind.Code § 35-42-3-3 (Burns 1979). In this case, the evidence demonstrates that the defendant substantially interfered with the liberty of the two employees without their consent. The fact that the employees were able to break away from the confinement does not negate the determining factor that a jury could find, beyond a reasonable doubt, that a nonconsensual confinement took place. Sammons v. State, (1979) Ind.App., 397 N.E.2d 289, 294.
Defendant next argues that there was insufficient evidence to support the verdict of attempted murder. The intent to commit murder, as an element of the crime of attempted murder, may be inferred from the deliberate use of a deadly weapon in a manner reasonably likely to cause death. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507, 509. Defendant claims that he intended only to scare the employees when he fired the shot from his revolver. However, the discharging of the revolver by Defendant is substantial evidence from which the trier of fact could infer, beyond a reasonable doubt, that he intended to kill them.
At trial, the State introduced exhibits evidencing previous convictions, sentencings and commitments to show that the Defendant was an habitual offender. Defendant contends that the trial court erred in admitting these exhibits and that without such exhibits the evidence on the habitual charge was also insufficient.
The challenged exhibits were as follows: Exhibits 7, 9 and 11 were certified copies of court records evidencing Defendant's convictions and sentencings for three prior, unrelated felonies. Exhibits 8, 10 and 12 were certified copies of prison records evidencing his imprisonment for each of the three aforementioned felonies.
We first note that the habitual offender statute under which Defendant was tried and sentenced, Ind.Code § 35-50-2-8 (Burns 1979) does not require the accused to have been imprisoned for the prior felonies. It differs, in this respect, from the earlier statute. Exhibits 8, 10 and 12, therefore, were not material to the alleged habitual offender status and were mere surplusage.
Defendant made no objection, at trial, to the admission of exhibits 7, 8, or 10, and has made no argument, by his brief, with respect to the admissibility of exhibit 9, although he objected to its admission, at trial, upon the ground that it was a five page document and the certification thereof appeared upon but four of the...
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Yurina v. State
...offender phase of his trial. Accordingly, he may not now argue a new or different reason before this Court on appeal. Spivey v. State, (1982) Ind., 436 N.E.2d 61. Although Defendant waived consideration of this issue, we note that Defendant's admission clearly established a fact which the p......
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Leavell v. State
...court's denial of the motion for continuance or that the trial court abused its discretion in denying that motion. We find no error. Ind., 436 N.E.2d 61, 64; Ind.R.Tr.P. 53.5, and there is a showing from the record that the defendant was prejudiced. Fielden v. State, (1982) Ind., 437 N.E.2d......
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Coleman v. Commonwealth, Record No. 1618-05-1 (Va. App. 11/7/2006)
...head, and fired, even though bullets hit windshield of car and defendant insisted he only intended to scare victim); Spivey v. State, 436 N.E.2d 61, 63 (Ind. 1982) (affirming attempted murder conviction and dismissing defendant's contention that he merely intended to scare employees when he......
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Williams v. Duckworth
..."the burden of the state in proving the status of habitual criminal is met solely by proof of convictions and sentences. Spivey v. State, (1982) Ind., 436 N.E.2d 61." Under the privious habitual offender statute the state was required to make a showing that the person charged as an habitual......