Stevenson v. State, 2--174A52
| Decision Date | 14 November 1974 |
| Docket Number | No. 2--174A52,2--174A52 |
| Parties | Sims STEVENSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
The Defendant-Appellant Sims Stevenson (Stevenson) appeals trial court judgment convicting him of Vehicle Theft under the Offenses Against Property Act 1 and Assault with Intent to Kill, claiming insufficient evidence and prosecutorial misconduct.
We affirm.
[162 Ind.App. 224] FACTS
The facts most favorable to the State are:
On January 4, 1973, while waiting for a stop light in the 2100 block of N. College Ave., Indianapolis, Indiana, Officer Jerry Gillespie observed a 1970 Chrysler Newport
and recognized the driver to be Stevenson whom Officer Gillespie had known since August, 1972. Knowing that Stevenson was wanted on a warrant he followed the Chrysler and contacted police headquarters to determine if the car was stolenAfter being informed that the Chrysler had been stolen from a Beech Grove residence on December 5, 1972, Officer Gillespie pursued Stevenson who sped away to avoid capture.
Unable to negotiate a turn Stevenson wrecked the stolen car and fled on foot. Officer Gillespie, in hot pursuit, reached the wrecked Chrysler and at gun point restrained a passenger in the car who had been unable to escape.
The escaping Stevenson was approximately 25--30 feet away from the wrecked Chrysler near a fence when Officer Gillespie heard a shot. Then he heard a second shot and saw flame, and ducked down behind the car door returning three shots at Stevenson.
Neither participant was struck by bullets and the Officer was unable to apprehend Stevenson at that time. Subsequently, about two months later, Stevenson was arrested by other police officers.
The police did not find any trace of a gun, bullets, or bullet holes at the scene.
Stevenson testified that he was not driving the stolen vehicle on January 4, 1973, and that he did not fire any kind of weapon at Officer Gillespie.
Stevenson was convicted by the trial court of both charges and sentenced to concurrent sentences of one to ten years for Vehicle Theft, and two to fourteen years for Assault with Intent to Kill.
[162 Ind.App. 225] ISSUES
Issues raised by Stevenson are:
ISSUE ONE
Was there sufficient identification of Stevenson as the driver of the stolen automobile?
Was there sufficient evidence to support the conviction of Assault with Intent to Kill?
Was Stevenson prejudiced by the conduct of the Prosecutor during the course of the trial?
As to ISSUE ONE, Stevenson claims that no evidence was presented at trial which directly identified him as being the same 'Sims Stevenson' who allegedly committed these offenses.
The State argues the identity of Stevenson is supported by Officer Gillespie's testimony and is therefore sufficient.
As to ISSUE TWO, Stevenson asserts that failure to discover any gun, bullets, or bullet holes allegedly fired from the gun, negates the elements of the crime of Assault with Intent to Kill.
The State replies that such evidence is not necessarily required to satisfy the elements of Assault with Intent to Kill and that Officer Gillespie's testimony that Stevenson did fire a gun at him is sufficient evidence.
As to ISSUE THREE, Stevenson claims that he was denied a fair trial because the Prosecutor asked leading and suggestive questions.
The State argues that the questions were proper but even if improper, Stevenson failed to specify the objectionable ones.
[162 Ind.App. 226] DECISION
CONCLUSION--It is our opinion that Officer Gillespie's identification was sufficient to establish Stevenson's identity beyond a reasonable doubt as the driver of the stolen automobile.
Stevenson's argument only goes to the weight of the evidence.
While it is true that no witness pointed to Stevenson at trial and identified him as the person who committed the crimes in question, Officer Gillespie referred to 'Sims Stevenson' several times as the driver of the stolen Chrysler and the person who ran to the fence and fired shots at him.
He also testified to a previous acquaintanceship with Stevenson which caused him to recognize Stevenson as the driver of the stolen Chrysler in the first instance.
In Preston v. State (1972), Ind., 287 N.E.2d 347, the Court quoted from State v. Schroeppel (1959), 240 Ind. 185, 167 N.E.2d 683:
(our emphasis) Preston, supra, 287 N.E.2d 348. See also, Rhodes v. State (1972), Ind.Ct.App., 290 N.E.2d 504; Norris v. State (1968), 251 Ind. 155, 240 N.E.2d 45; Sargent v. State (1973), Ind.Ct.App., 297 N.E.2d 459.
CONCLUSION--It is our opinion that there was sufficient evidence to support the conviction of Assault with Intent to Kill.
Again, Stevenson seeks to weigh the evidence.
The evidence most favorable to the State is the testimony of Officer Gillespie (in pertinent part):
'TESTIMONY OF OFFICER GILLESPIE
A. Sims Stevenson, at that time, ran to a fence--there was running east--there's a fence in his way. While I had the passenger--had the gun on the passenger, or my pistol on the passenger, Sims Stevenson turned around and I heard--heard a shot. At that time, I looked around and there was another shot, and I observed the flame. At that time, I ducked down behind the car door and returned three shots at him.
Q. What was Sims Stevenson firing at?
A. At me.
Q. How close did any of the bullets come, if you know.
A. I don't know.
Q. Did any of the bullets strike the car?
A. No.
Q. When was the next time you saw Sims Stevenson?
A. Next time I saw him was on March 28, 1973.
Q. So on the 4th day of January, 1973, you did not make a complete arrest of Sims Stevenson?
A. At that time, I did not complete the arrest, no.
Mr. Thonert: That's all the questions the State has, Your Honor.
Q. I believe you stated when Sims Stevenson was by a fence you saw a flash?
A. I heard a shot, heard another shot--at the time I saw--heard the second shot, I observed flame.
Q. But nothing struck you.
A. No.
Q. Nothing struck the police car?
A. No.
Q. Nothing struck the Chrysler Newport?
A. No.
Q. Officer, when Sims Stevenson was near this fence, and you saw this flash and you heard this shot, approximately how far away were you from the Defendant, Sims Stevenson, at that time?
A. At that time, I was approximately 25 to 30 feet.'
The elements of Assault with Intent to Kill are: a) an assault; b) with intent to kill. Johnson v. State (1972), Ind., 283 N.E.2d 532, 535. The assertion that there is insufficient evidence to support Stevenson's conviction is based on the failure by the State to produce any evidence of a gun, bullets or bullet holes. But it may reasonably be inferred from Officer Gillespie's account of Stevenson's position, the shots, the flame, and the Officer's reaction that Stevenson was firing at him with a gun. It can also be reasonably inferred that no other person was present and the gun...
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