Evans v. State

497 N.E.2d 919, 1986 Ind. LEXIS 1284
Indiana Supreme Court·Decided October 3, 1986·No. 1185S492·Published·Cited by 72 cases

Opinion

SHEPARD, Justice.

Following a jury trial, appellant Delmon Evans was convicted of felony murder, Ind. Code § 85-42-1-1 (Burns 1985 Repl.) and two counts of robbery, class A felonies, Ind.Code § 35-42-5-1 (Burns 1985 Repl.). He was sentenced to concurrent terms of 50 years for felony murder and 80 years for one count of robbery. The remaining robbery count merged with the felony murder charge.

Evans raises five issues in this direct appeal:

1) Sufficiency of the evidence;
2) Whether the indictment was defective;
3) Whether the prosecutor committed misconduct during final arguments by referring to evidence not presented at trial;
4) Whether the defendant's waiver of his right to be sentenced within thirty days of judgment was voluntary;
5) Whether the trial court's decision to impose enhanced sentences was adequately supported and whether the result is manifestly unreasonable.

The evidence at trial revealed that on March 19, 1985, Evans and three other youths robbed two men as they walked to a Muncie restaurant. The two victims heard *921 quickening footsteps behind them and stopped, turning to face the first attacker. As they did, a piece of cement block was thrown from another direction; it hit one victim in the mouth, broke two teeth, and knocked him down. The other victim was hit in the head with a block of cement and died. The billfolds of both men were taken. Two witnesses in an apartment overlooking the street yelled at the youths, who then fled.

I. Sufficiency of the Evidence

Evans alleges the evidence merely established his presence at the murder scene and thus was insufficient to support his convie-tions, either as principal or accessory. Al though two cohorts identified him as an active participant, Evans asserts that their testimony was inherently incredible because they admittedly changed their account of the crime several times. He notes that the only remaining evidence is the testimony of the two witnesses and the surviving victim and cites their disagreement on the number of men who participated in the crime. The victim saw four youths, while the witnesses saw three. Neither the witnesses nor the victim specifically identified Evans in court.

Evans is asking this Court to judge the credibility of witnesses and reweigh the evidence, an inappropriate task during appellate review. 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. In addressing an insufficiency claim, we will affirm the conviction if, considering the probative evidence and reasonable inferences supporting the verdict, a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id.

The evidence clearly established that Evans and at least two other youths acted in concert to rob the two victims. The youths used slabs of broken cement to overcome their victims, leaving one injured and another dying. One of the independent witnesses indicated the robbery-turned-murder appeared to be a joint effort; one youth stood guard over the surviving victim while two other youths beat the decedent. Evans' cohorts admitted be-mg at the scene of the crime but testified that Evans had committed the robberies. The surviving victim testified that a youth brandishing a switchblade took his wallet. Evans' own testimony placed him at the scene with a switchblade, only a few feet away from the victims. The uncorroborated testimony of a witness, the victim, or the defendant's accomplices is sufficient to establish all elements of the crime and support a conviction for robbery. Townsend v. State (1984), Ind., 460 N.E.2d 139; Thompson v. State (1982), Ind., 441 N.E.2d 192; Tolbert v. State (1984), Ind., 459 N.E.2d 1189.

With regard to the murder, the evidence was conflicting as to whether Evans administered the fatal blow to the decedent's head. The testimony of the victim and the witnesses established that the defendant was, at the least, an accessory to murder. The testimony of Evans' accomplices supported the inference that Evans was the principal. The distinction between principal and accessory is not significant here; all participants in a robbery which results in a killing are deemed equally guilty of the murder, regardless of which participant actually killed the victim. Rogers v. State (1974), 262 Ind. 315, 315 N.E.2d 707. Thus, we conclude the evidence was sufficient to support Evans' convictions.

II. Adequacy of Indictment

The grand jury returned two indictments for robbery against Evans. Each indict ment consists of two pages; one page describes the offense and the other lists the witnesses. Evans' motion to dismiss the robbery indictments was denied. Counsel claims that the indictments do not comply with Ind.Code § 35-34-1-2(b), which requires that they be signed by the grand jury foreman or by five of its members or by the prosecutor. Both pages of both indictments are in fact signed by the foreman.

*922 Counsel also claims that the indictments fail under Indiana Code § 85-84-1-2(c), which requires that they contain the names of the material witnesses. We can only gather that counsel believes that the statute requires dismissal of an indictment which names the witnesses on a separate page. He is mistaken.

More importantly, Evans alleges that the indictment fails to contain a statement of the essential facts constituting the offense, as required under Ind.Code § 85-84-1-2. The pertinent allegations constituting one of the robbery counts, for example, read:

... Delmon Evans, James Tyrone Smith, Anthony Watkins and Willie Lee Murphy, on or about the 19th day of March, 1985, at and in the County of Delaware, State of Indiana, (did) knowingly take property, to-wit: United States currency, billfold, and drivers' license, from other person, to-wit: ROBERT COOK, by the use of force on said ROBERT COOK, while armed with deadly weapons, to-wit: a switchblade knife, rocks and pieces of concrete, resulting in serious bodily injury to the said ROBERT COOK. ...

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Evans v. State, 497 N.E.2d 919, 1986 Ind. LEXIS 1284 (Ind. 1986).

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