State v. Overmyer
| Decision Date | 05 April 1973 |
| Docket Number | No. 3--872A41,3--872A41 |
| Citation | 294 N.E.2d 172,36 Ind.Dec. 24,155 Ind.App. 689 |
| Parties | STATE of Indiana, Appellant (Plaintiff below), v. Ronald OVERMYER, Appellee (Defendant below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellant.
Gerald A. Kamm, Doran, Manion, Boynton & Kamm, South Bend, William L. Morris, Rochester, for appellee.
Defendant-appellee (Overmyer) was charged with being an accessory after the fact, in that he unlawfully assisted one Porter Rhodes (Rhodes), who had been charged with Theft, to escape from detection, arrest, capture and punishment for the commission of said crime. IC 1971, 35--1--29--3; Ind.Ann.Stat. § 9--103 (Burns 1956).
Jury trial was begun and at the close of the State's evidence the trial court granted a directed verdict for Overmyer. The State appeals.
The sole issue concerns the propriety of the court's action in directing the verdict.
Indiana law concerning directed verdicts is well expressed in Bash v. State (1970), 254 Ind. 671, 262 N.E.2d 386, wherein our Supreme Court said:
In Holliday v. State (1970), 254 Ind. 85, 257 N.E.2d 679, in passing on the requirements of a directed verdict, the court said:
'To avoid a directed verdict the State merely has to make out a prima facie case.'
These rules were reiterated in Nelson v. State (1972), Ind., 287 N.E.2d 336.
In our opinion, the State presented sufficient evidence of probative value which, together with the reasonable inferences to be drawn therefrom, made a prima facie case. To illustrate our reasons for this opinion, a recitation of certain testimony is necessary.
The evidence shows that Overmyer was Chief of Police in the City of Rochester. Porter Rhodes and Dennis Drudge, Rhodes' son-in-law, were police officers in Rochester.
In December of 1970, Bailey's Hardware in Rochester was burglarized. On February 4, 1971, Overmyer called Drudge and told him to bring a picture of Rhodes to the police station but to '. . . hang onto the picture and not let anyone else have it.'
At the police station Drudge found out that someone fitting Rhodes' description had attempted to break into a savings and loan association in Rensselaer, that Rhodes had reported his license plate lost or stolen and that the State Police were investigating.
At Overmyer's order, Drudge and Overmyer met Rhodes north of Rochester where Overmyer told Rhodes, "Well, we wouldn't be here if you weren't in a hell of a mess", to which Rhodes replied, "(I) figured I was going to get caught eventually." Overmyer then told Drudge to pick up Rhodes' car and "Bring the car back thru (sic) the back roads so nobody can find it . . . They are looking for it."
Drudge brought the car in and searched it pursuant to Overmyer's orders finding a sack containing a router and belt sander, taken by Rhodes in the Bailey burglary, and a dealer's license plate in the trunk. After Drudge returned to City Hall, Rhodes gave him the keys to Rhodes' car, saying, "Get my white stomach pills out of the car and bring them back and get rid of the sack in the trunk." Drudge got the sack, put it in a police car and told Overmyer what he had done. Overmyer then spoke with Rhodes privately.
Later, Overmyer and Officers Johnson and Drudge went to a nearby restaurant and viewed the sack.
Still later, State Police Lt. Lohman took Rhodes from the police station. Rhodes, after conferring with Overmyer, finally consented to a search of his car.
Subsequently, Overmyer told Drudge, "Dennie, you have to make a 'phone call--make the 'phone call some place where it cannot be traced, and call Porter's brother Bobbie, at Hobart, Indiana, and tell him to get rid of the gun." The gun had also been taken by Rhodes in the Bailey burglary and Rhodes had sold it to his brother.
Drudge, Overmyer and Officer Johnson later discussed what they should do with the router and sander. They considered having Drudge take them to his home to hide them or burying them in Rhodes' basement. Overmyer finally told Drudge to take them to the 'river lot' in Rhodes vehicle, to use 'evasive action' in getting there so one one could follow him and that if he was followed, to dump the sack in the river.
Drudge hid the router and sander in an old truckbed at the river lot and threw the license plate...
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Robinson v. State, 2-1072A80
...to sustain each element charged. Holliday v. State (1970), 254 Ind. 85, 87, 257 N.E.2d 679, 21 Ind.Dec. 199; State v. Overmyer (1973), Ind.App., 294 N.E.2d 172, 36 Ind.Dec. 24. Neither the trial judge in ruling on the motion for directed verdict nor this court in reviewing that ruling is pe......
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...the court erred in refusing to grant defendant's motion for directed verdict at the close of plaintiff's evidence. In State v. Overmyer (1973), Ind.App., 294 N.E.2d 172, this court said, quoting from Bash v. State (1970), 254 Ind. 671, 262 N.E.2d "A directed verdict is only proper where the......
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...108; State v. Patsel (1960), 240 Ind. 240, 163 N.E.2d 602.' These rules were recently reiterated by this court in State v. Overmyer (1973), Ind.App., 294 N.E.2d 172. We are of the opinion that in the instant case there was a total lack of evidence on an essential issue and therefore we beli......