Wear v. State, 71S00-9111-CR-928

• Decision Date: 12 June 1992
• Docket Number: No. 71S00-9111-CR-928,71S00-9111-CR-928
• Citation: 593 N.E.2d 1179
• Parties: Richard WEAR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1179

593 N.E.2d 1179

Richard WEAR, Appellant, v. STATE of Indiana, Appellee.

No. 71S00-9111-CR-928.

Supreme Court of Indiana.

June 12, 1992.

James F. Korpal, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Judge.

Defendant Richard Wear was convicted by jury of murder, Ind.Code Sec. 35-42-1-1(1), and found to be an habitual offender. Wear was sentenced to 80 years. The sole issue raised in this direct appeal is whether the evidence is sufficient to sustain his conviction.

Wear acknowledges that when reviewing a conviction for sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses; instead, we consider only the evidence most favorable to the verdict and all reasonable inferences to be drawn therefrom. Fleming v. State (1991), Ind., 579 N.E.2d 73, 74. It is the province of the jury to hear the testimony given by the witnesses and to assess the truth and veracity of each witness; the jury's resulting decision will be overturned by this Court only if such decision is based on testimony that is inherently improbable. Johnson v. State (1991), Ind., 580 N.E.2d 670, 671.

The facts presented at trial which are most favorable to the verdict include the following. At approximately 6:30 p.m. on February 14, 1990, the victim, Wilbert Floyd, was shot four times. One of those bullets lacerated his heart, causing his death.

During 1988 and 1989, Taneisha Perry dated Wear and was pregnant with his child in February 1990, at which time she was dating Floyd. During her relationship with Wear, she observed that he kept four guns in his home, including a .357 revolver, a .38 revolver, and a nine millimeter automatic. Police concluded that the bullets which struck the victim were shot from a gun of one of these sizes.

In February 1990, Wear and Floyd were involved in a scuffle at Floyd's workplace. Floyd defeated Wear in that encounter. On February 14, 1990, in response to teasing from his friends about losing the fight, Wear stated that he would kill Floyd in retaliation. Wear told other friends that he had previously plotted to attack Floyd on a specific occasion, but had been unable to carry out his plan. Wear had also informed Michael Martin, an acquaintance of Wear and the victim, that he intended to kill Floyd. In addition, a person who was incarcerated with Wear at the St. Joseph County Jail, where Wear was held pending trial of this case, testified that Wear told him he had shot someone with a gun after an argument over a woman.

On the evening of the 14th, Martin saw Floyd in a phone booth, and saw Wear sitting in his car parked near the phone booth. Wear appeared to be...