Washington v. State

422 N.E.2d 1218
CourtIndiana Supreme Court
DecidedJuly 10, 1981
Docket780S208
StatusPublished

This text of 422 N.E.2d 1218 (Washington 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
Washington v. State, 422 N.E.2d 1218 (Ind. 1981).

Opinion

422 N.E.2d 1218 (1981)

Kevin Eugene WASHINGTON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).

No. 780S208.

Supreme Court of Indiana.

July 10, 1981.

*1219 J.J. Paul, III, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Dep. Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Kevin Eugene Washington, was convicted by a jury of armed robbery, a class B felony, Ind. Code § 35-42-5-1 (Burns 1979 Repl.), and three counts of criminal confinement, class B felonies, Ind. Code § 35-42-3-3 (Burns 1979 Repl.). He was sentenced to terms of twelve years on the first count and six years on each of the other counts, all terms to be served consecutively. This direct appeal presents the following two issues:

1. Whether the trial court erred in admitting evidence of defendant's alleged involvement in a prior, unrelated crime; and

2. Whether the trial court erred in sentencing defendant to consecutive terms of imprisonment.

A summary of the facts most favorable to the state shows that at approximately 9:45 p.m. on August 13, 1979, an Arthur Treacher's Fish and Chips restaurant on the east side of Indianapolis, Indiana, was robbed by two black males. The manager of the restaurant, Claude Grissom, testified that two black men came into the restaurant just prior to closing, looked at the menu and ordered a seafood platter. When an employee rang up the order and asked for the money, one of the men pulled a gun and announced, "This is a robbery." Defendant then jumped over the counter and put a gun to the back of Grissom's head. He ordered Grissom not to look at his face. The robber ordered Grissom and Linda Gray, the other employee, to the walk-in freezer where a third employee, Debra Adams, was working. He ordered Gray and Adams into the freezer and took Grissom with him into the office. The robber took approximately six hundred dollars in cash from the office safe and ordered Grissom into the freezer with the other two employees before he left.

Grissom was not able to identify his assailant from a photo lineup prior to trial. He did identify defendant at the trial and said he looked the same except for his hair. Grissom also identified a photograph of the second robber, who later testified for the state. Debra Adams, one of the other employees present during the robbery, also testified at the trial. She corroborated Grissom's testimony about the events that night. She stated that she saw defendant only briefly at two separate times; once, when he first ordered his food and later when he came back to the freezer. She was able to identify defendant from a photo lineup and identified him at the trial.

Another state's witness, Diane McDowell, was allowed to testify over defendant's objections about the robbery of a different Arthur Treacher's restaurant where she was the manager. This robbery occurred five days prior to the instant crime. Defendant had entered that restaurant in the afternoon, looked at the menu and ordered *1220 a seafood platter. He ate it and waited until other customers left, then announced his intention to rob the business. McDowell testified that defendant held a gun to the back of her head and ordered her to open the safe and cash register so he could take the money. Both McDowell and another employee were forced to get under a desk before defendant left through a back door. McDowell identified defendant at a photo lineup and at the trial.

I.

Defendant now contends that the testimony about the prior robbery was improperly admitted since it was highly prejudicial and was not necessary for identification purposes. We do not agree.

It is well settled that evidence of other crimes committed by a defendant, separate and distinct from the instant charge, is generally inadmissible as proof of the guilt of the defendant. Henderson v. State, (1980) Ind., 403 N.E.2d 1088; Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843; Cobbs v. State, (1975) 264 Ind. 60, 338 N.E.2d 632. However, there are certain exceptions to this general rule. Evidence of prior crimes can be admitted for the purpose of showing intent, motive, purpose, identification or common scheme or plan. Henderson v. State, supra; Choctaw v. State, (1979) Ind., 387 N.E.2d 1305.

Evidence of the prior robbery of a Steak and Ale restaurant was held admissible in Henderson v. State, supra. In that case, defendant was charged with the subsequent robbery of another Steak and Ale restaurant where he used the same pretense of seeking employment in order to gain entrance and the proximity in time was four days. Evidence of two prior robberies of the same store were held admissible as probative of common scheme and identity in Lockridge v. State, (1977) 172 Ind. App. 141, 359 N.E.2d 589. In a prosecution for theft of a television from a motel, the trial court admitted evidence of three other motel television thefts closely related in both time and distance in which defendant gave the same incorrect information on motel registration cards. The Court of Appeals affirmed. Alexander v. State, (1976) 167 Ind. App. 688, 340 N.E.2d 366.

In this case, the August 8 and August 13 robberies were quite similar. The proximity in time was five days. Both restaurants were on the east side of Indianapolis and were part of the same franchise with similar floor plans. In both instances, defendant came in posing as an ordinary customer and ordered a seafood platter. He then announced his intention to rob the business when no other customers were present. Defendant held his gun to the back of the manager's head in both crimes in order to obtain the cash from the office safe. These similarities are substantial and unique enough to be relevant in establishing identity. Henderson v. State, supra. The identity of the robber in the instant crime was not so firmly established by the testimony of the two eyewitnesses as to make this additional identification testimony unnecessary. The trial court did not err in admitting the evidence of the August 8, 1979 robbery.

II.

Defendant further contends that he was erroneously sentenced to serve consecutive sentences. He argues that the trial court did not make an adequate finding of aggravating circumstances to support the sentences and that under the circumstances of his case the consecutive sentences result in double punishment.

This Court has consistently held that it is proper to impose separate sentences upon multiple convictions when the offenses are not the same for purposes of double jeopardy. Adams v. State, (1979) Ind., 386 N.E.2d 657; Elmore v. State, (1978) 269 Ind. 532, 382 N.E.2d 893.

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Related

Elmore v. State
382 N.E.2d 893 (Indiana Supreme Court, 1978)
Loveless v. State
166 N.E.2d 864 (Indiana Supreme Court, 1960)
Cobbs v. State
338 N.E.2d 632 (Indiana Supreme Court, 1975)
Mott v. State
402 N.E.2d 986 (Indiana Supreme Court, 1980)
Adams v. State
386 N.E.2d 657 (Indiana Supreme Court, 1979)
Gardner v. State
388 N.E.2d 513 (Indiana Supreme Court, 1979)
Alexander v. State
340 N.E.2d 366 (Indiana Court of Appeals, 1976)
Maldonado v. State
355 N.E.2d 843 (Indiana Supreme Court, 1976)
Inman v. State
393 N.E.2d 767 (Indiana Supreme Court, 1979)
Abercrombie v. State
417 N.E.2d 316 (Indiana Supreme Court, 1981)
Lockridge v. State
359 N.E.2d 589 (Indiana Court of Appeals, 1977)
Henderson v. State
403 N.E.2d 1088 (Indiana Supreme Court, 1980)
Choctaw v. State
387 N.E.2d 1305 (Indiana Supreme Court, 1979)
Fehlman v. State
161 N.E. 8 (Indiana Supreme Court, 1928)
Crickmore v. State
12 N.E.2d 266 (Indiana Supreme Court, 1938)
Sylvester v. State
187 N.E. 669 (Indiana Supreme Court, 1933)
Hergenrother v. State
18 N.E.2d 784 (Indiana Supreme Court, 1939)
Smith v. State
21 N.E.2d 709 (Indiana Supreme Court, 1939)
Washington v. State
422 N.E.2d 1218 (Indiana Supreme Court, 1981)
Zimmerman v. State
130 N.E. 235 (Indiana Supreme Court, 1921)

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Bluebook (online)
422 N.E.2d 1218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-state-ind-1981.