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10/08/87 HOWARD WILSON v. STATE INDIANA

Filed: October 8, 1987.

HOWARD WILSON, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION, ROOM NO. V, The Honorable Thomas E. Alsip, Judge, No. CR84-204E.

Dickson, J. Shepard, C.j., and DeBruler, Givan and Pivarnik, JJ., concur.

Author: Dickson

DICKSON, J.

Defendant Howard Wilson was found guilty by a jury of robbery while armed with a deadly weapon and determined to be a habitual offender. The following issues are raised in his direct appeal:

1. sufficiency of evidence that he was armed,

2. refusal of tendered instruction on lesser included offense,

3. admissibility of documentary evidence in habitual offender phase, and

4. habitual offender sentencing.

Issue 1 - Sufficiency of Evidence

Defendant contends that the evidence was insufficient to establish beyond a reasonable doubt that he used a handgun and placed persons in fear, as charged in the information.

In addressing the issue of sufficiency of evidence, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find each element of the charged crime proven beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Defendant concedes these considerations and this standard of review but argues that the testimony is contradictory as to whether the defendant ever had possession of the gun used in the robbery. We disagree. Defendant's accomplice testified that after pushing one of the victim's against a garage, he gave the defendant the gun and told him to shoot the victim if he moves. The victim testified that his wallet and coin change were removed from his pockets while the defendant pointed the gun at him after stating "don't move or I'm going to shoot."

We further note that in the event there had been a complete absence of evidence that defendant was personally armed, he would nevertheless remain criminally liable because of the use of the weapon by his accomplice. Ind. Code § 35-41-2-4; Johnson v. State (1985), Ind., 475 N.E.2d 309.

We disagree with defendant's contention that the evidence was insufficient to convict him of robbery while armed with a deadly ...


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