Warner v. State

455 N.E.2d 355, 1983 Ind. LEXIS 998
CourtIndiana Supreme Court
DecidedNovember 7, 1983
Docket583S161
StatusPublished
Cited by14 cases

This text of 455 N.E.2d 355 (Warner 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
Warner v. State, 455 N.E.2d 355, 1983 Ind. LEXIS 998 (Ind. 1983).

Opinion

PIVARNIK, Justice.

Defendant-appellant Clifford A. Warner, Jr., was convicted of Robbery, Ind.Code § 85-42-5-1 (Burns Repl.1979), and Battery, Ind.Code § 85-42-2-1 (Burns Repl. 1979), at the conclusion of a jury trial in Fayette Circuit Court on October 7, 1982. Warner was given thirty (80) years imprisonment for the robbery and five (5) years imprisonment for the battery, both sentences to be served concurrently. He now appeals.

Defendant Warner raises three issues on appeal, concerning:

1. whether there was sufficient evidence to convict him of robbery;

2. whether the trial court erred in allowing the introduction of expert testimony; and, 8. whether the sentence imposed was unreasonable.

The defendant was charged with and found guilty of stabbing the night manager of the Snowman restaurant in Connersville and taking the cash receipts from the restaurant's cash register.

I

The defendant contends that there is insufficient evidence to convict him of robbery. He reaches this conclusion because no one actually saw him take the money from the cash register. The State argues that there is sufficient evidence, albeit circumstantial, to convict the defendant of robbery.

This Court does not reweigh the evidence or judge the credibility of witnesses and will consider only that evidence most favorable to the State and all reasonable inferences drawn therefrom. When there is substantial evidence of probative value to support each element of the offense, the finding of the trier of fact will not be disturbed. Napier v. State, (1983) Ind., 445 N.E.2d 1361, 1366; Jackson v. State, (1980) Ind., 402 N.E.2d 947, 948. Moreover, while the State must sustain its burden of proof on each element of an offense charged, such elements may be established by cireumstan-tial evidence and the logical inferences drawn therefrom. Harris v. State, (1981) Ind., 425 N.E.2d 154, 156; Lisenko v. State, *357 (1976) 265 Ind. 488, 491, 355 N.E.2d 841, 843. It is also well settled that on review this Court does not have to find that cireum-stantial evidence is adequate to overcome every reasonable hypothesis of innocence but only that an inference may reasonably be drawn therefrom which supports the finding. Napier, supra; Hall v. State, (1980) Ind., 405 N.E.2d 530, 535.

The record most favorable to the State reveals that on the night of November 30, 1981, Joan Halveland was working as the night manager of the Snowman restaurant in Connersville, Indiana. Between 11:30 p.m. and 12:00 a.m., the defendant, Clifford Warner, Jr., entered the restaurant. That was the first time Halveland had ever seen the defendant. Several regular customers known to Halveland came in a short time later. One of these customers, Jeff Sherwood, knew the defendant and spoke briefly with him. The defendant left about 1:00 a.m. and the other customers left at various times, the last one leaving at approximately 2:00 a.m.

Two minutes later, the defendant re-entered the restaurant and ordered four large soft drinks. While Halveland was filling the fourth drink, she felt something slam into her back. She turned around and saw the defendant standing there with a "real crazy look on his face." Halveland felt a sharp pain in her chest and when she placed her hand on her back, she found blood on her hand. The defendant turned and fled. Halveland went back to the kitchen and telephoned the description of her assailant to the police. While she was still on the telephone, Halveland observed the defendant enter the restaurant. She slid down so she would be out of his sight. Shortly afterwards she heard the cash register open. A few minutes later the front door of the restaurant was opened. At that point Halveland lost consciousness.

The police arrived within minutes of the telephone call and found Halveland lying in a pool of blood. She regained consciousness and told the names of customers who would be able to tell the police where the defendant lived. The police apprehended the defendant a short time later. The owner of the restaurant verified that approximately $132.00 plus several keys had been taken from the cash register. The money and keys were never recovered.

The defendant argues mere presence at the seene of a crime and mere opportunity to commit the crime are not sufficient to sustain a conviction. Janigon v. State, (1982) Ind., 429 N.E.2d 959. While this is true, we feel there was sufficient evidence introduced to convict the defendant of robbery. Halveland observed her assailant enter the restaurant alone while she was on the phone. Although Halveland could not see the defendant, she then heard the cash register open. A few minutes later, the front door opened again and Halveland fainted. The police arrived a short time later and discovered that the cash register was empty.

Although the evidence of the robbery was circumstantial, we feel that a reasonable inference may be drawn therefrom to convict the defendant. This situation is analogous to the one found in Hilligoss v. State, (1970) 253 Ind. 443, 255 N.E.2d 101. There, the manager of the liquor store was forced at gun point into a back room. Later, she returned to the main part of the store and observed that money had been taken from the register. Hilligoss' conviction was affirmed and the present case will not be decided differently. The fact that the defendant had access to the cash register, plus the fact that he earlier stabbed Halveland, we feel is substantial evidence to convict the defendant of robbery resulting in serious injury.

II

The defendant argues next that the trial court erred when it allowed the testimony of an expert witness to be introduced. This witness, William Kuhn, testified that there was human blood on the defendant's knife and jacket, and that the blood on the jacket was Type A. The defendant contends that the evidence shows the witness did not have the expertise required for the analysis of blood.

*358 "An expert witness is one who by reason of education or special experience has knowledge respecting a subject matter about which persons having no particular training are incapable of forming an accurate opinion or making a correct deduction. Balfour v. State, (1981) Ind., 427 N.E.2d 1091. A trial court's ruling that a witness is qualified to testify as an expert is reviewable only for abuse of discretion. Epps v. State, (1977) 267 Ind. 177, 369 N.E.2d 404."

Moody v. State, (1983) Ind., 448 N.E.2d 660, 664.

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455 N.E.2d 355, 1983 Ind. LEXIS 998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-state-ind-1983.