Belcher v. State

• Decision Date: 15 September 1983
• Docket Number: No. 782S270,782S270
• Citation: 453 N.E.2d 214
• Parties: Reginald BELCHER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 214

453 N.E.2d 214

Reginald BELCHER, Appellant, v. STATE of Indiana, Appellee.

No. 782S270.

Supreme Court of Indiana.

Sept. 15, 1983.

Reginald B. Bishop, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Reginald Belcher was convicted by a jury in the Marion Superior Court of criminal trespass, a class A misdemeanor, and theft, a class C felony. The jury further found Appellant to be a habitual criminal. The trial court subsequently sentenced Appellant to imprisonment terms of one year on the criminal trespass conviction and four years on the theft conviction. Appellant's theft sentence was enhanced by thirty years imprisonment for being a habitual criminal. Appellant now directly appeals and raises the following nine issues:

1. sufficiency of the evidence;

2. alleged trial court error in permitting the State to amend its information by interlineation;

3. impeachment of a defense witness by showing prior criminal convictions;

4. denying Appellant's motion to amend the verdict forms;

5. granting State's motion in limine;

6. denying Appellant's motion for a continuance made during the last pretrial conference;

7. alleged irregularity in the method by which the jury was impaneled;

8. alleged improper sentencing; and

9. alleged error in admission of State's Exhibits 7, 8, and 9.

The facts show that on August 9, 1981, Appellant was observed by Russell Marcum and Michael Carie carrying furniture and other things out of a building owned by Arthur Graf and putting them into Appellant's red pickup truck. Arthur Graf testified that the property in question previously had been inside of his building and that he did not give Appellant or anyone else permission to remove it. Appellant's defense was that the items in question were not in Graf's building but were in the alley adjacent to Graf's building. Appellant claims that he assumed the property was abandoned.

I

Appellant first claims that there was insufficient evidence to find him guilty of theft and criminal trespass. His argument is based solely on a conflict in the evidence between the State's witnesses and his one witness. Appellant's witness claimed that the property of which Appellant took possession was abandoned in the alley adjacent to Graf's building while State's witnesses Marcum and Carie stated that they saw Appellant removing the property from inside Graf's building. Appellant attacks the credibility of Marcum and Carie because their testimonies indicate some animosity between Marcum and Appellant. Appellant would have us discount these testimonies entirely. The weighing of the evidence and the determination of the credibility of the witnesses is, as Appellant concedes, within the province of the jury and not within the province of this Court on appeal. Since there was evidence before the jury from which it could reasonably find or infer beyond a reasonable doubt that Appellant did, in fact, commit these crimes, we will not disturb the jury's judgment. Dixon v. State, (1982) Ind., 437 N.E.2d 1318.

II

Appellant next claims that the trial court erred by granting the State's "Motion to Amend the Information by Interlineation" over Appellant's objection. After the jury was sworn, the trial court granted the State's request to amend the charging information by substituting "Arthur Graf" for "Agricultural Credit Inc." as the named owner of the property in issue. Appellant concedes that an information may be amended at any time provided the amendment does not prejudice the substantial rights of the defendant. Gilmore v. State, (1981) Ind., 415 N.E.2d 70; Morris v. State, (1980) Ind., 406 N.E.2d 1187. Appellant does not show, however, how his substantial rights were prejudiced by the State's amendment. His only claim is that he did not have sufficient time to investigate the new allegations and to structure his defense accordingly. Notwithstanding Appellant's claim, it appears that his defense was not based on the identity of the owner as between Agricultural Credit Inc. and Arthur Graf. In fact, it appears that Appellant was aware that Arthur Graf was the owner of the property long before this motion to amend was made. Appellant's defense was based solely on his contention that he did not remove property from inside of any building but rather picked it up in an alley where it had been abandoned. This Court has stated the standard for making the distinction between an amendment involving substance and an amendment involving form as follows:

"The rule as to whether an amendment is as to substance or form can be stated thus: If the defense under the affidavit as it originally stood would be equally available after the amendment is made, and if any evidence the accused might have would be equally applicable to the affidavit in the one form as in the other, then the amendment is one of form and not of substance."

State ex rel. Kaufman v. Gould, (1951) 229 Ind. 288, 291, 98 N.E.2d 184, 185; see also Henderson v. State, (1980) Ind., 403 N.E.2d 1088; Humphrey v. State, (1978) 268 Ind. 597, 377 N.E.2d 631. Appellant's reliance on Griffin v. State, (1982) Ind., 439 N.E.2d 160, is misplaced. In Griffin, the original informations properly named the people from whom the stolen property was taken and generally described said property. The informations were subsequently amended to contain no description whatever of the stolen property or of the identity of the rightful owners of that property. The amended information accordingly was found to be totally inadequate to describe the crime for which Griffin was charged and convicted. In Griffin, the conviction on the amended information was ordered set aside and all charges were dismissed. The disability found in Griffin does not exist with respect to the amended information in the instant case. Although the identity of the owner was changed in the amended information, the change was not pertinent to the defense. No reversible error is presented on this issue.

III

Appellant next contends that the trial court erred by allowing the State to impeach the credibility of defense witness Janet Treadwell by showing that she previously had been convicted of prostitution. Treadwell testified that the furniture items in question were taken from the alley where they had been abandoned and not from inside the building as witness Marcum and others testified for the State. When cross-examined by the defense, witness Marcum indicated some animosity between himself and Appellant. Specifically, Marcum testified about an altercation between Marcum and Appellant during which Appellant allegedly drew a knife on Marcum. The altercation pertained to Appellant having his "hooker" hang out on the corner near Marcum's residence and Marcum's attempt to have Appellant remove her. When Treadwell testified for the defense, the State attempted to ascertain from Treadwell how well she knew Appellant and what her relation with him had been. The State sought to show, and finally did show, that Treadwell was the girl involved in Appellant's altercation with Marcum. In pursuing this subject, Treadwell was asked if she had been involved in prostitution. She intimated that she had been. Later in the questioning and when Treadwell was specifically asked if she previously had been convicted of prostitution, Appellant finally objected. Treadwell subsequently also admitted that she previously had been convicted of criminal conversion, if not in fact theft. The State concedes that the cross-examination of Treadwell regarding her involvement in and conviction for prostitution did not come within the ambit of Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210. The State claims, however, that Treadwell's testimony regarding prostitution was presented for the purpose of showing Treadwell's relationship to Appellant and her proclivity to testify in his behalf. This was particularly relevant since the defense had already attacked Marcum on the very incident that Treadwell was examined about. We note that the ultimate question asked of Treadwell by the State in cross-examination was:

"And, isn't it a fact that when you were in the area of 21st and Pennsylvania you were with Reginald Belcher, for the precise purpose of going out and working as a prostitute?"

The purpose of offering this evidence during cross-examination, therefore, was not simply to show Treadwell's prior convictions so as to affect her credibility but rather was to show the relationship between these people and Treadwell's interest in the outcome of this case. This was a legitimate area for cross-examination and the trial court properly permitted it. Moreover, previous questions regarding Treadwell's activities as a prostitute had already been asked and answered. Only one objection was ever raised and that objection was a general one stating no specific grounds. The State's position is well taken that under the instant circumstances, Appellant waived his first opportunity to preserve this issue for appeal and therefore was not in a position to object to later questions on the same subject. Brown v. State, (1981) Ind., 417 N.E.2d 333; Tinnin v. State, (1981) Ind., 416 N.E.2d 116. We do not find that the trial judge abused his discretion by controlling the scope of this cross-examination in view of the manner in which this evidence came in.

IV

After the jury had retired to deliberate, Appellant petitioned the trial court to amend the verdict forms furnished to the jury. The verdict forms were for theft, criminal conversion, burglary and criminal trespass. Appellant argued that the verdict forms created the impression that Appellant was charged with four different crimes thereby confusing the jury. Appellant urged the trial court to amend the forms to explain which of the charges were lesser included offenses of the others. Appellant relied upon Ind.Code Sec....