Brown v. State

Decision Date16 March 1976
Docket NumberNo. 1--975--A--155,1--975--A--155
Citation168 Ind.App. 440,343 N.E.2d 790
PartiesFermon L. BROWN and James Avery Giles, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Phillip W. Brown, Shelbyville, William F. Marshall, Columbus, for appellants.

Theodore L. Sendak, Atty. Gen., K. Richard Payne, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Chief Judge.

Fermon L. Brown and James Avery Giles, defendants-appellants, (Defendants), were convicted by a jury of theft (unauthorized control over property of the owner) and now bring this appeal.

We affirm.

On June 14, 1974, David Watson (Watson), owner of Watson Tire Service, was in his office when he observed a van-type truck containing two people stop in front of his place of business. One of the persons entered the showroom while Watson was engaged in a telephone conversation. When Watson heard a scuffling sound, he looked into the showroom and observed through the front windows one of the defendants go by the side of the truck, the side doors open and close, and the defendant return to the showroom. Watson testified that as he reached the front of the showroom, the defendant was throwing a second load of tires into the truck. He testified that he saw Brown throw eight to twelve tires into the truck before he (Watson) ran to the rear of his business and instructed employees to call the police. When Watson ran back to the front of the building, he saw tires strewn inside and outside the building.

Watson was unable to detain the defendants; they fled in the truck with Watson in pursuit in his vehicle. There were no tires in the truck when it was abandoned at the end of a chase. The defendants were ultimately apprehended.

While Watson was engaged in the chase and capture, Montgomery, one of his employees, stacked, in two stacks of five each, the tires that had been strewn in and about the doorway.

Upon his return Watson marked each of the ten tires with a yellow marker to distinguish them from other tires in the showroom. Later they were put on a rack in the display area and retained in that manner until transported to court.

Defendants first allegation of error is the admission into evidence over objections a photograph of the marked tires and the marked tires themselves. It is contended that the State did not introduce sufficient evidence to establish a link between the exhibits and the defendants in that the tires stacked by Montgomery were not positively identified as those placed in the defendant's truck.

Defendants seem to rely upon Martin v. State (1974), Ind., 314 N.E.2d 60, and Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652, for the proposition that the evidence is inadmissible if the chain of possession is not established by the State. However, the chain of possession need be shown only from the time the State receives an exhibit. Smith v. State (1974), Ind.App., 312 N.E.2d 896; Zupp v. State (1972), 258 Ind. 625, 283 N.E.2d 540. Finding that the testimony of Watson and Montgomery provides a sufficient link between the tires and the defendants, we conclude that neither the photograph nor the tires were erroneously admitted into evidence.

Error is alleged in the trial court's excusing and excluding, a defense witness from further testimony at a time when defendants had questions to ask that witness. Defendants repeatedly attempted to elicit testimony from witness Ralph Lisby that he, independently of the defendants and at various times, had committed theft of tires from Watson. Objections to the questions as irrelevant were repeatedly sustained even after defendants made their offer to prove that he had so been engaged and after the court had ruled the testimony inadmissible. Upon an admission by defense counsel that it did not know what Lisby's testimony would be, the trial judge (out of the presence of the jury) concluded that the defense was on a fishing expedition. Lisby was excused over the protests of defense counsel that it had further questions of the witness regarding other matters.

Considering the repetitive nature of the dialogue preceding the excusal of the witness, the excusal was not unreasonable. If, indeed, there were further questions to be put to Lisby regarding additional matters not ruled upon by the court, it was incumbent upon the defense to make another offer to prove, as to those additional matters, Ind. Rules of Procedure, Trial Rule 43(C). Without an offer to prove, this court is unable to determine if the additional testimony was...

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4 cases
  • Wash v. State
    • United States
    • Indiana Appellate Court
    • 21 August 1980
    ...the evidence came into the possession of the police. Williams v. State (1978), Ind., 379 N.E.2d 981, 984; Brown v. State (1976), 168 Ind.App. 440, 442, 343 N.E.2d 790, 791. The State has an obligation to establish a proper chain of custody foundation only from the point in time when the pol......
  • Greenlee v. State
    • United States
    • Indiana Appellate Court
    • 16 September 1976
    ...nurse, he is in error. '(T)he chain of possession need be shown only from the time the State receives an exhibit.' Brown v. State (1976), Ind.App., 343 N.E.2d 790, at 791, citing Smith v. State (1974), Ind.App., 312 N.E.2d 896. Such a chain of custody was adequately established by the State......
  • Beamon v. State
    • United States
    • Indiana Appellate Court
    • 21 August 2014
    ...of intent, but flight, when combined with other circumstantial evidence, may sustain a finding of that intent." Brown v. State, 168 Ind. App. 440, 444, 343 N.E.2d 790, 792 (1976). Consequently, evidence of Beaman's flight, without other circumstantial evidence, is insufficient to sustain hi......
  • Green v. State Farm Mut. Auto. Ins. Co., 1--975A159
    • United States
    • Indiana Appellate Court
    • 16 March 1976

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