Benberry v. State

• Decision Date: 06 February 2001
• Docket Number: No. 49A02-0005-CR-330.,49A02-0005-CR-330.
• Citation: 742 N.E.2d 532
• Parties: Hilda J. BENBERRY, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

742 N.E.2d 532

Hilda J. BENBERRY, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-0005-CR-330.

Court of Appeals of Indiana.

February 6, 2001.

Lesa Lux Johnson, Indianapolis, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Adam M. Dulik, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Hilda J. Benberry, appeals from her convictions for two counts of Forgery¹ as Class C felonies, and three counts of Theft² as Class D felonies.

We affirm in part, reverse in part, and remand for vacation of two of the theft convictions.

Upon appeal, Hilda presents three issues which we renumber and restate as:

(1) Whether the trial court erred in allowing into evidence testimony and physical evidence of items taken from Hilda's person pursuant to a search made by a store employee;

(2) Whether the convictions for Theft under Counts III, IV and V³ violate the "single larceny rule"; and

(3) Whether the convictions for Forgery under Counts I or II and for Theft under Count III constitute double jeopardy.

The facts most favorable to the judgment reveal that on January 21, 1999, Matthew J. Utterback's apartment was broken into and his unsigned MBNA MasterCard credit card was stolen. On February 1, 1999, the apartment of David Van Jelgerhuis and Amy Lengel was broken into. As a result, David's Citibank VISA credit card as well as Amy's J.C. Penney and L.S. Ayres credit cards were stolen.

On February 2, 1999, Hilda entered the J.C. Penney store in the Washington Square Mall and attempted to purchase a diamond ring by presenting an MBNA credit card to the sales clerk, Gloria Jean King. This MBNA credit card bore the name of "Matthew Utterback" on the front and a signature on the back that read "Mrs. Matthew Utterback." Record at 94. Gloria became suspicious that the card was stolen and called store security. Meanwhile, Hilda left the sales counter to use the restroom. Loss Prevention Manager Christopher Lamb went to Gloria's register in response "to a code on a bank card that was reported lost or stolen." Record at 103. Mr. Lamb left Gloria's register, took the credit card upstairs with him, and returned to Gloria's register after talking to the credit department. When Hilda returned, Mr. Lamb requested that she provide personal identification. Because Hilda did not have any proof that she was "Mrs. Matthew Utterback," she agreed to accompany Mr. Lamb to the security office. While in the security office, Hilda was interviewed by Mr. Lamb in the presence of store employee Fred Clark and senior merchandising assistant Harriet Patterson. During the interview, Hilda admitted to Mr. Lamb that she was not Mr. Utterback's wife and that she was not authorized to use his credit card. At some point during the interview, Harriet searched Hilda and recovered a Citibank VISA credit card in the name of David Van Jelgerhuis, J.C. Penney, and L.S. Ayres credit cards in the name of Amy Lengel, and a gold necklace. A Marion County Sheriff's Deputy arrived and Hilda was arrested.

A bench trial was held on September 24, 1999. Matthew, David and Amy each testified that Hilda was not authorized to use their individual credit cards. Mohammad Rajput, a salesperson for Gold N Gems, stated that the photograph of a gold herringbone necklace recovered from Hilda during the search depicted the same gold herringbone necklace that Hilda had purchased from him at Gold N Gems on February 2, 1999. According to Mohammad, Hilda signed the receipt for this necklace as "Mrs. Matthew Utterback." Record at 147.

During the State's direct examination of Harriet Patterson, Hilda objected to a question concerning statements that were made by her during the interview, and moved "to suppress anything." Record at 133. The trial court sustained the objection, noting that the testimony would have been repetitive.

Hilda testified that she was not Mrs. Utterback and that she signed as Mrs. Utterback because "that's what was required to make the purchase." Record at 164. In addition, Hilda stated that she was aware she was not entitled to possess or use the credit cards.

Hilda was convicted and sentenced to concurrent sentences of eight years on each forgery count to be served concurrent to three years on each theft count.

I Suppression of Evidence

Initially, we address Hilda's contention that the trial court erred in admitting into evidence Harriet Patterson's testimony concerning the items she removed from Hilda during the search, as well as Hilda's contention that the trial court erred in admitting physical evidence of the items recovered during the search. Hilda argues that the evidence should have been excluded because the search was conducted without a warrant, and because the State failed to establish that one of the exceptions to the warrant requirement had been met.

To preserve a suppression claim, "`a defendant must make a contemporaneous objection that is sufficiently specific to alert the trial judge fully of the legal issue." G.J. v. State (1999) Ind.App., 716 N.E.2d 475, 478 (quoting Moore v. State (1996) Ind., 669 N.E.2d 733, 742). A defendant waives his suppression claim if he "fails to object to the introduction of evidence, makes only a general objection, or objects only on other grounds." G.J., supra at 478 (quoting Moore, supra at 742). During the trial, the State questioned Harriet concerning the statements Hilda made during the interview with Mr. Lamb, Mr. Clark, and Harriet. The following dialogue ensued:

"Q. During that interview what was discussed?

MR. HUELSKAMP: Objection, Judge.

THE COURT: Sustained. What, if anything, did the defendant say during—

MR. HUELSKAMP: And, Judge, now—and I would object to that now that there is, in fact, a female officer at the scene while this lady was present. We would move to suppress anything. There's no—there's been no testimony—

THE COURT: You waived that a long time ago, sir—the conversation about what the defendant stated in there. And why are we having a motion to suppress in the middle of a trial of a case that's been pending since February.

MR. HUELSKAMP: This is the first time that officer's been put on the scene, Judge. No one—nowhere else has there been any testimony that an actual deputy had been present until this lady's come here.

THE COURT: Actually, your objection's sustained. There's already been one witness testify about what the defendant said in that—in that setting. I think anything at this point in time is just repetitive. So, rather than have a suppression hearing, which you are entitled to, I'm just going to rule for you—

MR. HUELSKAMP: Thank you, sir.

THE COURT: —as it is repetitive. All right."

Record at 133-34.

The record reveals that Hilda's objection and motion "to suppress anything" were made in response to a question concerning statements made by Hilda during the interview. Record at 133. The trial court sustained the objection, ruling that such testimony was repetitive because testimony concerning Hilda's interview statements had previously been admitted. The record further reveals that after the trial court sustained Hilda's objection to the question concerning the statements she had made during the interview, the State proceeded to question Harriet concerning the items she recovered when she searched Hilda. Hilda did not object to Harriet's testimony concerning these items. Hilda also did not object when all four credit cards, the signed receipt from Gold N Gems, and a photograph of the gold herringbone necklace were admitted into evidence. Thus, Hilda's general motion to "suppress anything," made in response to a question concerning statements Hilda had made during her interview, failed to specifically address either Harriet's testimony concerning the items she recovered from Hilda during the search or the physical evidence of the items Harriet actually recovered. Without a more specific objection, the trial court could not have been aware that Hilda's motion to suppress was made in reference to Harriet's subsequent testimony concerning the items she recovered or in reference to the physical items themselves. Therefore, Hilda has waived her objection to the admission of both the testimonial and physical evidence of the items Harriet recovered from her during the search.

II

"Single Larceny Rule"

Next, we address Hilda's contention that she should not have been convicted of multiple counts of theft because, under the "single larceny rule," there was but one theft offense. The single larceny rule provides that "when several articles of property are taken at the same time, from the same place, belonging to the same person or to several persons there is but a single `larceny', i.e. a single offense." Raines v. State (1987) Ind., 514 N.E.2d 298, 300; Jenkins v. State (1998) Ind.App., 695 N.E.2d 158, 162 n. 4. "The rationale behind this rule is that the taking of several articles at the same time from the same place is pursuant to a single intent and design." Raines, supra at 300; Jenkins, supra at 162 n. 4. Thus, "[i]f only one offense has been committed, there may be but one judgment and one sentence." Raines, supra at 300; Jenkins, supra at 162 n. 4.

In the present case, the information for Count III charged that Hilda "exert[ed] unauthorized control over" the MBNA credit card belonging to Matthew W. Utterback. Supp. Record at 2. Count IV charged that Hilda "exert[ed] unauthorized control over" the Citibank credit card belonging to David Van Jelgerhuis, and Count V charged that Hilda "exert[ed] unauthorized control over" the J.C. Penney and L.S. Ayres credit cards belonging to Amy Lengel. Supp. Record at 2-3. Thus, for the theft of the MBNA, Citibank, J.C. Penney, and L.S. Ayres credit cards to constitute only one offense under the single larceny rule, Hilda must have exerted unauthorized control over the credit cards at the same time and from the same place.

The trial...