Dellenbach v. State

• Decision Date: 11 June 1987
• Docket Number: No. 3-1185-A-317,3-1185-A-317
• Citation: 508 N.E.2d 1309
• Parties: Herbert & Randall DELLENBACH, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1309

508 N.E.2d 1309

Herbert & Randall DELLENBACH, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-1185-A-317.

Court of Appeals of Indiana Third District.

June 11, 1987.

Lawrence O. Sells, Indianapolis, for Herbert Dellenbach.

William T. Enslen, Timothy O. Malloy, Hammond, for Randall Dellenbach.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Richard Albert Alford, Deputy Attys. Gen., Indianapolis, for the State.

STATON, Judge.

Randall and Herbert Dellenbach appeal their convictions for multiple counts arising from a furnace scam in which they preyed on elderly homeowners. They raise several issues which we have consolidated as follows:

1. Whether the convictions are supported by sufficient evidence,

2. Whether a material variance existed between the acts charged against Randall and the proof adduced at trial,

3. Whether any of Herbert's or Randall's convictions were for lesser included offenses, and thus contrary to the double jeopardy clause,

4. Whether the court abused its discretion in refusing to give Randall's tendered instruction # 11 regarding multiple convictions, and

5. Whether the court abused its discretion in sentencing Randall or Herbert.

We affirm in part and reverse in part.

The evidence favorable to the State shows that Herbert and Randall Dellenbach owned and controlled U.S. Mechanical Corporation, a heating and air conditioning business in East Chicago, Indiana. Through U.S. Mechanical and its employees, the Dellenbachs conducted a practice in which elderly and physically or mentally infirm home owners were deceived into believing that their furnace, boiler, chimney liner, or chimney cap was dangerously defective. The scheme was accomplished through the use of rigged testing equipment, "downmen" (employees trained to deceive a customer into the belief that his or her heating system was dangerously defective), and intimidation (U.S. Mechanical employees were instructed not to give up on a customer until the employee was "literally thrown out of the house"). For example Michael Holdt, an employee of U.S. Mechanical, convinced Marion Bates that her chimney lining, chimney cap, and damper were dangerously defective. To Holdt's knowledge, there was nothing wrong with these items.

Herbert was convicted of one count of conspiracy to commit theft, a class D felony; four counts of attempted theft, a class D felony; two counts of theft, a class D felony; and one count of corrupt business influence, a class C felony. Randall was convicted of one count each of conspiracy to commit theft, attempted theft, and theft, all class D felonies.

When Herbert and Randall failed to appear for sentencing, the court issued bench warrants for their arrest. Not until over two years later were the Dellenbachs, using assumed names, arrested in Illinois.

I. Sufficiency of Evidence

Both Herbert and Randall challenge the sufficiency of evidence supporting their convictions. When we review a challenge to the sufficiency of evidence, we consider only the evidence favorable to the state, together with reasonable inferences which may be drawn from that evidence. If there is substantial evidence of probative value from which the trier of fact might reasonably infer guilt beyond a reasonable doubt, we must affirm. Harris v. State (1985), Ind., 480 N.E.2d 932, 937.

First, Herbert claims there is no testimony, other than that of Michael Holdt, to link him to the crimes for which he was convicted. Herbert and Randall each argue that Holdt's testimony is inherently incredible. Then, both Herbert and Randall point to the lack of personal contact between themselves and the victims.

We first note that the convictions for conspiracy would not require personal contact between Herbert or Randall and any of the victims. A person conspires to commit a felony when, with the intent to commit the felony, he agrees with another person to commit the felony. Indiana Code 35-41-5-2. When confederates combine to commit an offense, each is responsible for acts committed in furtherance of their common design. Richards v. State (1985), Ind., 481 N.E.2d 1093, 1095.

The convictions for conspiracy may be sustained on the following evidence: first, Herbert and Randall agreed with Holdt, and in fact employed and trained him, to commit theft by deceiving individuals into believing they needed a furnace when they did not. Second, Holdt's overt acts in furtherance of the parties' scheme are attributable to Herbert and Randall. Richards, 481 N.E.2d at 1096.

The Dellenbachs attack on Michael Holdt's credibility must also fail. The matter of the weight given an accomplice's testimony is a matter of credibility to be determined by the jury. Lowery v. State (1985), Ind., 478 N.E.2d 1214, 1229. We do not find Holdt's testimony "so incredibly dubious or inherently improbable that no reasonable person could believe it." Shippen v. State (1985), Ind., 477 N.E.2d 903, 904. Holdt's testimony, which directly implicated Herbert and Randall in the scheme of deception, was sufficient to support their convictions.

II. Variance

Randall next asserts a material variance existed between the information filed and the proof at trial. The indictment charged Randall with committing theft on November 30, 1981, while the testimony at trial indicated that the thefts occurred on either November 20 or November 28, 1981.

An information must be sufficiently specific to apprise the defendant of the crime for which he is charged to enable him to prepare a defense. Jones v. State (1984), Ind.App., 467 N.E.2d 1236, 1241. A variance between the charging information and the proof at trial is material when it 1) misleads the defendant in the preparation of his defense, and 2) subjects him to the likelihood of another prosecution for the same offense. Id.

Here, Randall offers only the conclusory statement that "undoubtedly his attorney was severely misled in the preparation of his defense due to his unawareness of the alleged time of the theft." Randall fails to show how he was misled, or how being misled affected the preparation of his defense. Thus, he fails to show that the variance was material, and does not persuade us that the court erred. See, e.g., Platt v. State (1972), 153 Ind.App. 605, 288 N.E.2d 591, 592-93, reh. denied (theft by deception may be proven to have occurred on dates prior to the ones specified in the indictment).

III.

Lesser Included Offenses

A. Herbert

1. Attempted theft and conspiracy.

Herbert argues the court erred in merging the conspiracy conviction into the attempted theft convictions. He asserts the attempted theft charges were lesser included offenses of the conspiracy charge, and that, therefore, he should have been sentenced only for the single conspiracy conviction, rather than being given multiple sentences for the attempted theft convictions.

The proper test for determining when a defendant can be sentenced for multiple offenses in the same trial is the identity of offense test. Yeagley v. State (1984), Ind., 467 N.E.2d 730, 736. Double jeopardy does not attach when each count charged requires proof of an additional fact which the other does not. Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306; Parks v. State (1986), Ind., 489 N.E.2d 515, 516. In the present case, the conspiracy count could stand without the support of the attempted theft charges because the overt acts included a number of separate victims and thefts.

Our Indiana Supreme Court considered a similar question in Hopper v. State (1985), Ind., 475 N.E.2d 20. In Hopper, appellants argued that the proof of the substantive charge (kidnapping) was identical to that required to establish a conspiracy charge (conspiracy to commit kidnapping), because the overt act alleged was kidnapping. The court disagreed:

The State argues any of the acts listed in the series of acts may serve as the overt act in furtherance of the agreement. * * * We first note that a showing of any one of the events listed in the series would have been sufficient to support the Conspiracy conviction. The phrase in the Information 'an overt act, to-wit:' might, in some cases, be followed by language describing a single event. In the case at bar, this was not the situation. The jury was instructed the State must allege and prove an overt act. It is reasonable to conclude the jury found one or more of the events in the list was proven beyond a reasonable doubt. We find no reversible error.

Hopper, 475 N.E.2d at 24.

In the present case, as in Hopper, the information charging conspiracy listed a series of victims and charges:

Herbert Dellenbach [and] Randall Dellenbach ... did then and there unlawfully and feloniously with the intent to commit theft, a class D felony, conspire, and agree with each other ... to exert unauthorized control over the property, to-wit: money of another person to-wit: either, Tom Hughes, William Phillip Speelman, Ethel Hicks, ... Dewey Slack, or Marion Bates, by obtaining, taking, carrying away, or possessing the said property with the intent to deprive them or anyone of them of the value and use of said property, and in furtherance of the said felonious conspiracy and agreement to commit theft, the defendant, U.S. Mechanical Corporation, through its agents and employees did perform any or all of the following overt acts: [the charging information then listed numerous events taking place over a period of time from February 24, 1979, to November 30, 1981]. (Emphasis added.)

The jury could have found that one or more of the acts alleged supported the conspiracy conviction. Thus, there was no identity of the offenses, and the merger doctrine was not applicable.

2. Theft and Attempted Theft.

Herbert next argues that his convictions for Count XIII, alleging theft, and Count XIV, alleging attempted theft, constitute only one offense. Herbert is correct. The counts are identical with respect to the identity...