Winfrey v. State

• Decision Date: 14 December 1989
• Docket Number: No. 49S00-8707-CR-698,49S00-8707-CR-698
• Citation: 547 N.E.2d 272
• Parties: Jeffrey WINFREY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 272

547 N.E.2d 272

Jeffrey WINFREY, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8707-CR-698.

Supreme Court of Indiana.

Dec. 14, 1989.

L. Craig Turner, Boberschmidt, Miller, O'Bryan & Turner, P.A., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant Jeffrey Winfrey appeals from his convictions on four counts in Marion Superior Court: robbery, a Class A felony; confinement, a Class B felony; battery, a Class C felony; and theft, a Class D felony. Appellant was given the presumptive sentence for each crime and raises two issues here. He maintains that there was insufficient evidence to support his convictions and that his sentence was manifestly unreasonable.

In reviewing a claim that there was insufficient evidence to support a verdict, this Court does not reweigh the evidence nor judge the credibility of witnesses. We look only to the evidence most favorable to the verdict and any reasonable inferences drawn from it and will reverse only if there is not evidence of probative value substantial enough to support the conviction beyond a reasonable doubt. Freeman v. State (1987), Ind., 510 N.E.2d 1338. The evidence most favorable to the verdict here indicates that appellant and Kenny Morris were in the apartment building of the victim, Ray Stucker, on the evening of March 7, 1986. After Stucker went to get his mail, he was approached in the hallway outside his apartment by appellant and Morris who asked him for money so they could ride a bus home. Stucker gave them some change, and the two men followed him back into his apartment and sat down. The three shared some wine and appellant asked to use the bathroom. After appellant returned from the bathroom, Stucker went to his bedroom and noticed that a gold chain was missing from his dresser. He asked appellant to return it and reached for the phone. When he did so, appellant jumped up and pulled the cord out of the wall.

Stucker was dragged into his bedroom, bound and gagged, and tied to his bed. His television cable was tied around his neck and appellant began to choke him saying, "I'm going to kill you." Appellant then took out a handgun and struck Stucker repeatedly in the face, breaking his jaw. While he was tied to the bed, Stucker could hear people carrying his possessions out of the apartment and loading them onto a truck. A third person entered the room later and urinated on Stucker's head. The next day, Stucker was able to free himself, and he called the police. A considerable amount of his personal property had been taken. Appellant was identified in a photo lineup by Stucker and a neighbor who had seen appellant and Morris in the hallway prior to the occurrence. The police went to the home of the appellant, who consented to a search. A number of Stucker's possessions were found there, including his television set. Appellant and Morris were later identified in two separate lineups at police headquarters by Stucker and his neighbor.

Appellant first contends that the evidence serving to identify him as one of those who committed these offenses was insufficient to support the jury verdict. He accurately points out that the victim Stucker was drinking at the time of the attack and had, shortly after the attack and prior to his identification of appellant for the police, picked out photographs of two other men, Jefferson and Quinn, as being his assailants. Upon these events, appellant bases his contention that the identification evidence was too weak. The victim's conduct in both respects was brought out in detail before the jury. The victim explained that he was hazy due to his injuries when he picked out Jefferson and Quinn and that he was certain when viewing appellant in a live lineup at the stationhouse. He testified that he had had only one drink with his attackers. In Mayes v. State (1984), Ind., 467 N.E.2d 1189, this Court concluded that the uncorroborated identification testimony given by a rape victim was sufficient on appeal, even though she had made a contradictory pretrial identification. Here the evidence is stronger than in Mayes, in that the testimony of the neighbor, while not describing the acts which went on in the victim's apartment, did place appellant in the building at the time of the crime. The evidence of drinking and the contradictory identification was for the trier of fact to consider in assessing weight and credibility and does not support this insufficiency claim.

The evidence also presented an ample basis from which a jury could have concluded to a certainty beyond a reasonable doubt that appellant had committed the crimes of Class A robbery, confinement, battery, and theft. A person commits the Class A felony version of robbery when he "knowingly or intentionally takes property from another person or from the presence of another person ... by using or threatening to use force on any person ... if it results in serious bodily injury to any person other than a defendant." I.C. 35-42-5-1. Appellant's presence in the apartment before the goods were stolen, coupled with his possession of the goods afterwards and Stucker's hearing his property being removed, was sufficient to support a conclusion that appellant knowingly or intentionally took Stucker's property. Serious bodily injury is injury that "creates a substantial risk of death or that...