Sharp v. State , 267 Ind. 198 ( 1977 )

Hunter, J.

The defendant, Richard Allen Sharp, was charged by way of information with armed robbery. He was tried by jury, found guilty as charged, and sentenced to 20 years’ imprisonment. James Brown was tried jointly with the defendant, and he was also convicted. His appeal to this Court resulted in the affirmance of his conviction. It is unnecessary to reach many of the issues raised by the defendant Sharp, as these issues are identical to the issues raised by Brown in his appeal, when it was determined there was no trial error. Brown v. State, (1977) 266 Ind. 82, 360 N.E.2d 830. Sharp raises the following issues not determined in Brown’s appeal:

1. Whether there was sufficient evidence to support the jury’s verdict; and

2. Whether it was error for the trial court to refuse to give instructions on the lesser included offenses of armed robbery.

I.

The defendant contends that there was insufficient evidence of identification to support the jury’s verdict. He asserts that the eyewitness who identified him had only a short opportunity to observe the perpetrator and that another eyewitness was not able to make an identification of him. He also emphasizes discrepancies between descriptions given to police and the defendant.

When reviewing a claim of sufficiency of the evidence, only that evidence most favorable to the verdict and the reasonable inferences to be drawn therefrom will be considered on appeal. Daniels v. State, (1976) 264 Ind. 490, 346 N.E.2d 566. If there was sufficient evidence of probative value from which a jury could have determined guilt beyond a reasonable doubt, the judgment will be affirmed. Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658.

Here, an eyewitness made a positive identification of the defendant in court as well as at a pre-trial confrontation one hour after the crime. Corroborative of the identificátion is the fact that the defendant was apprehended in a car, the same make, year and color as that used in the robbery. In addition, the defendant Sharp silently mouthed the words, “You’re dead,” when the eye witness approached him at the pretrial confrontation, indicating recognition and a consciousness of guilt.

This was sufficient evidence to support the jury’s verdict.

II.

The defendant tendered instructions covering various lesser included offenses of armed robbery. The trial court refused these instructions. He gave an instruction on armed robbery, including an instruction on aiding and abetting an armed robbery. The defendant contends that the failure of the trial court to instruct the jury on these lesser included offenses was reversible error.

The relevant statute provides as follows in all cases other than those involving different degrees:

“[T]he defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information.” Ind. Code § 35-1-39-2 (Burns 1975) (emphasis added).

The test for determining whether it was error for the trial court to refuse instructions on lesser offenses is not only whether the lesser offense is necessarily included within the greater offense, as charged, but also, whether there was evidence adduced at trial to which the included offense instruction was applicable. Harris v. State, (1977) 266 Ind. 661, 366 N.E.2d 186; Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d 351.

In this case all the evidence indicated that the defendant was either guilty as charged or not guilty of any offense. The point of contention at trial was the issue of identification. All the evidence showed that two men entered a liquor store and robbed it. One man took money from the cash register while the other held a gun on the victims. The defendant Sharp’ was identified as being the man who took money from the cash register.

The jury was instructed on the elements of armed robbery and the elements of aiding and abetting an armed robbery. To have returned a verdict of guilty they must have found all of the elements of the offense present beyond a reasonable doubt. There was no error in the refusal of defendant’s instructions.

For all of the foregoing reasons the judgment of the trial court should be affirmed.

Judgment affirmed.

Givan, C.J., and Pivarnik, J., concur; DeBruler, J., dissents with opinion in which Prentice, J., concurs.