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09/25/87 TIMOTHY L. SAPP v. STATE INDIANA

Filed: September 25, 1987.

TIMOTHY L. SAPP, APPELLANT, AND DAVID W. FRAZIER, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM VANDERBURGH SUPERIOR COURT, CRIMINAL DIVISION II, The Honorable Randall T. Shepard, Judge, Cause No. 84-CR-381

Givan, J., DeBruler, Pivarnik and Dickson, JJ., concur. Shepard, C.j., not participating.

Author: Givan

GIVAN, J.

In a trial by jury, appellants were convicted of Burglary, a Class C felony, and Theft, a Class D felony, and were found to be habitual offenders. The court sentenced appellants to concurrent terms of thirty-two (32) years on the burglary count and thirty-two (32) years on the theft count.

The facts are: The Bowers Standard Service Station in Evansville closed at 10:00 p.m. on October 17, 1984. At 3:00 a.m., Larry Kuehn, a resident of the apartment building near the service station, heard a car door slam and looked out his window. Kuehn watched appellants open the door of a coke machine at Wally's Marathon Service Station and then walk toward the Bowers Standard Service Station. Kuehn promptly telephoned the police.

At approximately the same time, Randy Hughes was operating a sweeping machine in the parking lot of a supermarket located across the street from the two service stations. He also saw appellants at the Marathon and Standard service stations.

Police officers apprehended appellants as they were walking east on Waggoner Street in the vicinity of the service stations. Officer David Reed of the Evansville Police Department discovered thirty-two quarters and four dimes in appellant Sapp's pocket. The officers then inspected Bowers Standard Service Station and observed that the window of the garage door had been broken, that the door of the cigarette machine was dismantled and that the coin box from the machine was missing. The coin box was later found in a bush on Waggoner Street.

Appellants contend the prosecutor committed reversible error by making certain remarks during his final argument concerning appellants' failure to testify during trial. Specifically, appellants argue that the trial court erred in denying their motion for mistrial.

The granting of a motion for mistrial lies within the sound discretion of the trial Judge and his determination will be reversed only for an abuse of that discretion. Ramos v. State (1982), Ind., 433 N.E.2d 757.

During final argument, both counsel for appellants referred extensively to the evidence in an effort to convince the jury that the State had failed to prove appellants guilty. On rebuttal, the prosecutor made several references to the argument of appellants' counsel. Although counsel objected and moved for a mistrial on the ground the prosecutor was making reference to appellants failure to testify, it is clear from the record that the remarks were addressed to the perceived shortcomings of counsels' arguments and not to the failure of appellants to testify. Such comments do not constitute error. Frith v. State (1983), Ind., 452 N.E.2d 930.

Appellant Frazier contends there was not sufficient evidence of probative value to sustain his convictions for the crimes of burglary and theft.

This Court does not reweigh the evidence nor Judge the credibility of witnesses. Smith v. State (1985), Ind., 474 N.E.2d 71.

The record reveals that both appellants were present in the vicinity of the crime shortly after the burglary had been committed. Officer Reed of the Evansville Police Department received a radio dispatch to the location and apprehended appellants as they were walking east on Waggoner Street. Reed discovered a large quantity of coins in appellant Sapp's pocket. The police had been called to the scene by witnesses observing the activities of appellants.

We conclude the jury was presented sufficient evidence of probative value from which it could find beyond a reasonable doubt that appellants ...


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