# Fox v. State

> Indiana Court of Appeals · January 30, 1979 · 179 Ind. App. 267

URL: https://www.frixlaw.com/law-library/cases/9521879

## Case

- **Full name:** Tom FOX, Darl (Hunk) Havens, Tom York, Barry R. Perry, Gary P. Kapp, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below)
- **Court:** Indiana Court of Appeals
- **Decided:** January 30, 1979
- **Citations:** 179 Ind. App. 267; 384 N.E.2d 1159; 1979 Ind. App. LEXIS 1171
- **Precedential status:** Published
- **Opinion:** Concurrence by Miller
- **Judges:** Shields, Miller, Buchanan
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9521879

## How later opinions describe it (automated extraction)

- stating that “it is our opinion that the Bruton rule applies with equal force to all statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the statement”

## Opinion text

MILLER, Judge,
concurring.
I concur in the conclusions reached by Judge Shields, including her conclusion that the State failed to show that the two persons allegedly in the car at the scene of the crime participated in the crime charged.
*1172 Further, it is apparent from the record in this case that essential to the convictions of four of the Defendants, namely, Fox, Havens, York and Perry, if such convictions could be sustained at all, was establishment of the fact that five persons were present at the scene of the arson. The evidence revealed that the five Defendants were together earlier in the evening and shortly before the crime although their earlier association was not shown to have been criminal in nature. There was only one witness to the fact that five persons were present at the time of the arson. Mrs. Mowery, who occupied the victimized premises with her husband Ronald Mowery, Deputy. Chief, Marion Police Department, testified on direct examination that she saw three people in her yard and two in a car. However, on cross-examination, Mrs. Mowery acknowledged that the day after the arson, in the presence of a police investigator and the assistant police chief, she dictated a statement which accurately reflected the events of the preceding evening as she then remembered them. The statement was reduced to writing and signed by Mrs. Mow-ery. In her statement Mrs. Mowery indicated that she saw only three people the night of the arson. Mrs. Mowery’s testimony that there were five persons present was revealed for the first time at trial, more than 13 months after the arson was committed.
I recognize that it is the jury’s function, not that of a court on appeal, to weigh the evidence. Still, there is precedent for an appellate court to examine the testimony of a single eyewitness in order to determine if it is so incredible, vacillating, contradictory, weak, improbable or uncertain that it would ■not be “substantial evidence of probative value from which a jury could reasonably find or infer the existence of each material element beyond a reasonable doubt”. Bryant v. State (1978), Ind., 376 N.E.2d 1123, 1126 ; Wims v. State (1977), Ind., 370 N.E.2d 358 ; Vuncannon v. State (1970), 254 Ind. 206 , 258 N.E.2d 639 ; Gaddis v. State (1969), 253 Ind. 73 , 251 N.E.2d 658 ; Penn v. State (1957), 237 Ind. 374 , 146 N.E.2d 240 . If the evidence had not otherwise been insufficient in this case, I feel this Court would have been compelled to scrutinize the testimony of Mrs. Mowery in order to determine if it was sufficient to support a finding of guilty against Defendants Fox, Havens, York and Perry. 1
. It appears from the record in this case that two of the most damaging pieces of evidence, that is, Mrs. Mowery’s testimony that there were five not three persons present at the scene of the crime and the testimony of her husband Capt. Mowery that Defendant York admitted being present at the scene of the arson, both “surfaced” at the trial for the first time, more than a year after the arson. Capt. Mowery’s revelation of the “admission” of York was stricken by the trial judge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9521879. Public record. Not legal advice.