Ward v. State
| Decision Date | 15 February 1991 |
| Docket Number | No. 45S00-8712-CR-1110,45S00-8712-CR-1110 |
| Parties | William WARD, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Marce Gonzalez, Appellate Public Defender, Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, William Ward, was convicted of felony murder arising from the death of Joseph Brown following a grocery store robbery. After a habitual offender determination, the trial court imposed a sentence of 80 years. In this direct appeal, the defendant presents multiple issues, one of which, insufficiency of evidence to support the conviction, is determinative. This issue, although included in the amended motion to correct errors, was neither asserted nor argued in his initial appellant's brief. It was first urged on appeal in his reply brief.
The issue of sufficiency of evidence may be first raised on appeal even absent its inclusion in the motion to correct errors. Hall v. State (1980), 273 Ind. 425, 403 N.E.2d 1382; Guardiola v. State (1978), 268 Ind. 404, 375 N.E.2d 1105; Collins v. State (1977), 266 Ind. 430, 364 N.E.2d 750. However, where identified as an issue on appeal but not discussed with specific and cogent argument, this issue has been found to be waived. Aron v. State (1979), 271 Ind. 412, 393 N.E.2d 157; Gosnell v. State (1978), 268 Ind. 429, 376 N.E.2d 471; May v. State (1976), 265 Ind. 25, 349 N.E.2d 171.
A reply brief may not present new theories of appeal. Ross v. State (1982), Ind., 429 N.E.2d 942; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. Indiana Appellate Rule 8.3(A)(7) requires the initial brief of an appellant to specifically set forth and present argument applicable to each issue intended to be raised on appeal. The reply brief enables the appellant only to respond to the brief of the appellee. App.R. 8.3(C).
Notwithstanding these principles, this Court has on occasion reviewed the issue of sufficiency of evidence even absent proper presentation of the question on appeal. See, Timmons v. State (1986), Ind., 500 N.E.2d 1212 (); Steelman v. State (1985), Ind., 486 N.E.2d 523 (); Aron (insufficiency not mentioned in briefs). In determining whether the failure to comply with the appellate rules constitutes a waiver, we consider whether the non-compliance is sufficiently substantial to impede our review of the issue. Guardiola; Davis v. State (1976), 265 Ind. 476, 355 N.E.2d 836. In the present case, meaningful review is possible.
In addressing the issue of sufficiency of evidence, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
The evidence tending to support the verdict consists of the following facts. On the evening of December 1, 1984, Pay Low Foods at 901 E. 49th Street, Gary, Indiana, was robbed. An owner, Joseph Brown, was fatally injured. In exchange for a plea bargain providing for concurrent 17-year sentences on two counts of robbery while armed, Tracey Lee provided the only testimony linking the defendant to the crime. On the evening of the robbery, Lee asked the defendant to drive the two of them to the Miller section of Gary. Upon arriving, Lee went into a house and then asked the defendant to come in. One of the six other men present took the defendant to a back room out of sight and hearing of Lee and the others, who then looked at a diagram of the grocery store, discussed the robbery plan, and put away the diagram. The defendant then returned from the back room and was asked, "What kind of area was out there by 49th?" He replied that railroad tracks were nearby. The defendant then drove Lee and two other men to the vicinity of the Pay Low store. The only evidence regarding conversation during the trip was that one of the passengers asked the defendant about the railroad tracks, and that no one gave the defendant directions on where to go. The defendant dropped off his passengers at a parking lot and drove away. The others then arrived by separate car from which weapons and ski masks were distributed. These persons, including Lee, then committed the robbery.
In its prosecution of the defendant the State argued that he was criminally accountable because he aided, induced, or caused another person to commit the offense. Indiana Code Sec. 35-41-2-4. The evidence will be sufficient to support a conviction on an accessory theory if the accomplice is shown to have acted in concert with those who physically committed the elements of the crime. Moredock v. State (1987), Ind., 514 N.E.2d 1247; Fox v. State (1986), Ind., 497 N.E.2d 221. A defendant's concerted action or participation in a crime, even if shown only by the uncorroborated testimony of an accomplice, may be sufficient to support a conviction. Courchaine v. State (1989), Ind., 542 N.E.2d 969; Harden v. State (1982), Ind., 441 N.E.2d 215, cert. denied, (1983), 459 U.S. 1149, 103 S.Ct. 794, 74 L.Ed.2d 998.
Upon careful examination of the record, we conclude that the evidence and reasonable inferences supporting the verdict are nevertheless insufficient to establish guilt, even upon an accomplice theory. There was no evidence that the defendant participated in, or was present during, the planning of the robbery. After dropping off his passengers near the Pay Low Foods store, the defendant departed. There was no evidence that he remained as a look-out, that he returned and aided the perpetrators in their escape from the scene, or that he received any of the proceeds of the robbery.
The evidence being insufficient, the conviction must...
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