Tessely v. State

370 N.E.2d 907, 267 Ind. 445, 1978 Ind. LEXIS 580
CourtIndiana Supreme Court
DecidedJanuary 5, 1978
Docket776S220
StatusPublished
Cited by33 cases

This text of 370 N.E.2d 907 (Tessely 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
Tessely v. State, 370 N.E.2d 907, 267 Ind. 445, 1978 Ind. LEXIS 580 (Ind. 1978).

Opinion

Hunter, J.

Richard Carl Tessely, the defendant was tried on charges of burglary, robbery, accessory before the fact to inflicting an injury during a robbery and accessory after the fact to inflicting an injury during a robbery. The defendant was tried before a jury, which returned verdicts of guilty on the charges of burglary, accessory before and after the fact of inflicting an injury during a robbery, and the included offense of assault and battery with intent to commit a felony. The trial court entered judgment on these verdicts and sentenced the defendant on these convictions, ten to twenty years for burglary, one to ten years for assault and battery, and two life sentences for the accessory verdicts; the sentences to run concurrently. From this judgment the defendant appeals, raising the following issues:

1. Whether the state’s exhibits, a radio and a shaver, were properly admitted into evidence;

2. Whether testimony concerning coins, taken during a robbery, should have been struck, when the coins were not introduced;

*449 3. Whether there was sufficient evidence to support the verdicts;

4. Whether the court’s instruction on the presumption of innocence was misleading and prejudicial;

5. Whether a new trial should be granted considering newly discovered evidence; and

6. Whether the defendant’s two life sentences for being an accessory were improper.

I.

The defendant was charged with robbery, the information alleging that he took “money of the value of One Thousand Dollars.” At trial the prosecutor elicited certain testimony from various witnesses without objection concerning the taking of a radio and an electric shaver. When the prosecutor sought to have the radio and shaver introduced into evidence, the defendant objected, stating that those items were outside the scope of the charges. The objection was overruled and the items admitted.

Those two items were properly admitted. No objection was made to any testimony concerning either the radio or the shaver. The physical exhibits were merely cumulative of the testimony already given as respects the objection made. The admission of evidence which is cumulative of evidence already introduced is reviewable only for an abuse of discretion. Strickland v. State, (1977) 265 Ind. 664, 359 N.E.2d 244; Chappell v. State, (1926) 197 Ind. 272, 150 N.E. 769. The defendant was also charged with burglary. The radio and shaver were competent evidence with respect to that charge, in order to prove the element of intent to commit a felony.

*450 II.

The defendant was charged with taking money valued at one thousand dollars. Testimony described coins which were taken from the victim, but the coins were never introduced. At the conclusion of the evidence the defendant moved to strike all testimony regarding the coins because of the failure of the state to introduce these coins. This motion was overruled. The defendant recommends that we consider the reasonableness of Keiton v. State, (1968) 250 Ind. 294, 235 N.E.2d 695. Keiton was overruled by this Court in Pulliam v. State, (1976) 264 Ind. 381, 345 N.E.2d 229, and it is not necessary for the prosecution to introduce the physical object about which there has been testimony.

III.

The defendant contends that there was insufficient evidence to support his convictions. The evidence viewed most favorably to the jury verdicts was as follows. Tessely and Bonk broke into the home of Andrew Potts on February 19, 1975. Either Tessely or Bonk took Mr. Potts from his bedroom and held a knife to his throat while asking for money. Potts received a knife wound in the neck as a result. Tessely and Bonk took a shaver, a radio, a watch, and a quantity of old coins from the home and put them in their car. Tessely returned and set fire to the house before leaving in Bonk’s car. The two went to Niles, Michigan and unloaded the stolen goods at the apartment of Bonk’s son, Frank, Jr. The next day Bonk took Tessely back to the Turning Point, a half-way house for alcoholics where Tessely was staying. Bonk later pleaded guilty to robbery and testified for the state.

When reviewing the sufficiency of the evidence to support a verdict, this Court does not reweigh the evidence or judge the credibility of the witnesses. Viewing the evidence most favorable to the verdict, we determine whether there was sufficient evidence of probative value from *451 which a jury could have determined that the defendant was guilty beyond a reasonable doubt. Daniels v. State, (1976) 264 Ind. 490, 346 N.E.2d 566; Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658.

The defendant was convicted of burglary, assault and battery with intent to commit a felony, accessory before the fact of infliction of an injury during commission of a robbery and accessory after the fact of inflicting an injury during commission of a robbery. The defendant asserts, as to the burglary and assault and battery convictions, that Frank Bonk’s testimony is so suspect and weakened, Bonk testifying under inducement of an agreement, that this evidence is insufficient. This assertion requests that we reweigh the evidence presented. It is settled that an accused may be convicted upon the uncorroborated testimony of an accomplice. Coleman v. State, (1975) 264 Ind. 64, 339 N.E.2d 51. Here, Bonk’s testimony was sufficient evidence to support the jury’s verdicts; his plea agreement was placed before the jury and goes to the weight of that testimony only.

The defendant challenges the sufficiency of the evidence with respect to his conviction for being an accessory before the fact on the grounds that he did not know that an injury had been inflicted upon Potts. It is not necessary for an accused to know, subjectively, of each separate action of a conferedate resulting in an offense. It is sufficient if the evidence shows that an accused aided another in the commission of a crime. The acts of one accomplice are imputed to the other. Ind. Code § 35-1-29-1 (Burns 1975) ; Goodlow v. State, (1973) 260 Ind. 552, 297 N.E.2d 803; Rutledge v . State, (1975) 164 Ind. App. 468, 329 N.E.2d 603.

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Bluebook (online)
370 N.E.2d 907, 267 Ind. 445, 1978 Ind. LEXIS 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tessely-v-state-ind-1978.