Barnes v. State

378 N.E.2d 839, 269 Ind. 76, 1978 Ind. LEXIS 741
CourtIndiana Supreme Court
DecidedJuly 26, 1978
Docket377S160
StatusPublished
Cited by50 cases

This text of 378 N.E.2d 839 (Barnes v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. State, 378 N.E.2d 839, 269 Ind. 76, 1978 Ind. LEXIS 741 (Ind. 1978).

Opinions

Pivarnik, J.

At the conclusion of a jury trial in the Marion Criminal Court on July 14, 1976, appellant Barnes was convicted of the following three counts: assault with intent to commit a felony, to-wit: robbery, inflicting injury during the course of robbery, and aggravated assault and battery. He was sentenced to life imprisonment for the crime of inflicting injury during the commission of a felony, and to a term of not less than one nor more than five years for the crime of aggravated battery.

The incident in question occurred on May 1, 1976 at approximately 2:30 p.m. At that time, appellant and his co-defendant, Ricky Benson, entered the Corner Grocery in Indianapolis. Appellant carried a shotgun and wore a black felt hat. Later he pulled a nylon mask over his face. While the appellant held the gun, Benson kicked the cashier, Edith Mesalam, several times causing her serious injury. While Benson attempted to open the cash register, the store’s butcher, Hubert Lacey, entered the front of the store where he was shot by appellant. Appellant and Benson then fled from the store taking with them a hand gun belonging to Mrs. Mesalam.

[79]*79At approximately 5:00 p.m. that same day, appellant was arrested in an apartment above the Corner Grocery. In the apartment the arresting officers found a hand gun, a shotgun, a black felt hat and a stocking mask. These items were seized and later introduced as evidence at appellant’s trial.

The following issues are presented for review: (1) whether the items seized from the apartment were inadmissible as the fruits of an unlawful search and arrest; (2) the sufficiency of the evidence regarding appellant’s conviction of inflicting injury in the commission of robbery and the court’s failure to give a tendered instruction concerning abandonment of intent; (3) the sufficiency of the evidence supporting the conviction of aggravated assault and battery; (4) the admission of testimony from Ricky Benson concerning threats he received after his decision to testify against appellant; (5) the denial of appellant’s motion for judgment on the evidence; (6) the trial court’s decision to restrict each side to thirty minutes for final argument.

I.

Appellant first contends that it was error for the trial court to admit into evidence the nylon mask and shotgun seized from the apartment where he was arrested. He argues that since the arresting officers could have obtained a search warrant but did not do so, these items should have been excluded as the fruits of an unlawful search. In response to this contention, the state correctly points out that appellant does not have standing to challenge the constitutionality of the search. Illegally seized evidence is excludable only if the person complaining has standing to challenge its admissibility. Burton v. State, (1973) 260 Ind. 94, 292 N.E.2d 790. In Burton, we held that the standing requirement is satisfied if the defendant can establish: (1) a possessory interest in the searched premises or (2) that possession of the seized items is the basis [80]*80of the offense or possession is an essential element of the offense. Id. at 798.

In this case, the appellant and Ricky Benson were neither the owners of the building nor the tenants of the apartment and thus had no possessory interest in the searched premises. Appellant also fails to establish standing under the second half of the Burton test. Although the shotgun and stocking mask constituted damaging evidence, their possession cannot be said to be the basis of, or an essential element of the crime of robbery.

Appellant further argues that there was not probable cause for his arrest. This he argues, rendered inadmissible the items seized from the apartment as products of an unlawful arrest. Probable cause justifying an arrest without a warrant exists if the facts and circumstances known to the arresting officer would warrant a man of reasonable caution and prudence in believing that the accused had committed or was committing a criminal offense. Banks v. State, (1976) 261 Ind. 426, 351 N.E.2d 4, 9. The evidence most favorable to the state discloses that a robbery was committed by two males; that they had shot an individual with a shotgun; that a gun was taken in the robbery; that they had fled the scene of the robbery; that the investigating officer was informed by a citizen that the two men had fled into a certain apartment; that the officer had known the citizen previously but the citizen had not been an informant; that the officer and fellow officers then went to the apartment, announced at the door that they were police officers and upon hearing movement from within but not receiving a response, they forced their way into the apartment and arrested appellant who was hiding in a closet. The arresting officers thus knew that a crime had been committed, and that the two robbers had fled to a particular apartment. They also knew that the robbers, who had shot and wounded an individual, were armed, dangerous and determined to avoid capture. We find that under these facts and circumstances, [81]*81there was probable cause for appellant’s arrest without a warrant.

II.

The next assignment of error concerns the sufficiency of the evidence supporting the conviction of inflicting injury in the commission of a robbery. Appellant contends that he abandoned his attempt to commit robbery at a point in time when his accomplice, Ricky Benson, was unable to open the cash register. Since the shooting occurred after this point in time, appellant would have us believe that the infliction of injury did not occur during the commission of a robbery.

Appellant’s argument essentially invites this court to reweigh the evidence. In determining the sufficiency of the evidence, the court does not judge the credibility of witnesses nor weigh evidence. We look at only the evidence most favorable to the state and the reasonable inferences to be drawn therefrom. A verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Mosley v. State, (1977) 266 Ind. 675, 366 N.E.2d 648, 649. The record of the proceedings of the trial below reveals that appellant’s accomplice, Ricky Benson, testified that when he was unable to open the register, he continued searching for a cash box behind the counter. While Benson was searching for the cash box, Hubert Lacey entered the front of the store where he was shot by appellant. In addition, when the appellant and Benson fled from the store they took with them a handgun belonging to Edith Mesalam thus consummating the robbery. There was ample evidence from which the jury could find appellant guilty of inflicting injury in the commission of a robbery beyond a reasonable doubt.

In a related argument, appellant claims that the trial court erred in refusing his tendered instruction dealing with abandonment of intent. This instruction stated:

[82]*82“You are instructed that in order to convict the Defendant of the crime charged in the information, the criminal intent must unite with an overt act committed by the Defendant, and they must concur in point of time.

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Cite This Page — Counsel Stack

Bluebook (online)
378 N.E.2d 839, 269 Ind. 76, 1978 Ind. LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-ind-1978.