Buckley v. State, No. 2--1173A245

Docket NºNo. 2--1173A245
Citation322 N.E.2d 113, 163 Ind.App. 113
Case DateJanuary 30, 1975
CourtCourt of Appeals of Indiana

Page 113

322 N.E.2d 113
163 Ind.App. 113
John L. BUCKLEY, Jr., Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2--1173A245.
Court of Appeals of Indiana, Second District.
Jan. 30, 1975.

[163 Ind.App. 114]

Page 114

Kent O. Stewart, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

The Defendant-Appellant John L. Buckley, Jr. (Buckley) appeals the trial court judgment convicting him of theft under the Offenses Against Property Act, 1 unlawful use of credit card, 2 and uttering a forged instrument, 3 claiming insufficient evidence.

We affirm.

FACTS

The facts most favorable to the State are:

On or about June 14, 1972, Gene McKeans, an employee of Zale's Jewelers at Lafayette Square in Indianapolis, Indiana, encountered Buckley in the Zale store and assisted him in the purchase of an eighttrack tape deck.

After some preliminary discussion about the price and the manufacturer of the tape deck, McKeans turned Buckley over to another store clerk, Jerrie Cox (Cox), to consumate the purchase.

She testified that after McKeans referred Buckley to her to complete the transaction of the eight-track tape deck, she filled out a Master Charge sales invoice in the amount of $34.95 (the price of the tape deck), dated the invoice and signed her initials to the invoice. Then Buckley presented her a Master Charge credit card which was owned by John B. Phipps. After checking the credit card with a Master Charge book she put the credit card and the sales invoice into the imprint machine and registered the purchase. Although she [163 Ind.App. 115] stated that she did not personally see Buckley sign the completed invoice, it was unsigned when she handed it to him and was signed in the name of John B. Phipps when he returned it to her. She then gave Buckley the customer's receipt and the tape deck and he left the store.

At trial Cox positively identified the credit card and the original sales invoice as the ones used on the day of the purchase.

Page 115

Cox could not identify Buckley as the black male customer turned over to her by McKeans. However, McKeans did identify Buckley as the person who purchased the tape deck by pointing him out in court. He also testified that the purchase was made by Buckley with a Master Charge card.

John B. Phipps, the owner of the Master Charge credit card used for the purchase of the tape deck, testified that his credit card had been stolen and that it was not his signature on either the credit card or the sales invoice. Phipps also stated that he did not know Buckley and did not give him permission to use his credit card.

Buckely denied ever being at the Zale's store in Lafayette Square.

Buckley was charged by affidavits and convicted by the trial court of the three charges and sentenced to concurrent sentences of one to five years for theft (OAPA), one year for Unlawful Use of Credit Card, and a two to fourteen suspended sentence for Uttering a Forged Instrument.

ISSUE

A single issue is preserved: 4

Was there sufficient evidence to support Buckley's conviction for theft, unlawful use of a credit card, and uttering the forged instrument?

[163 Ind.App. 116] Buckley claims that there was not sufficient evidence to show he was the same person who purchased an eight-track tape deck with a Master Charge credit card belonging to John B. Phipps.

The State argues that the testimony by Cox that she completed a Master Charge credit sale of an eight-track tape deck to the customer referred to her by McKeans and identified by McKeans as Buckley is sufficient evidence to support the conviction.

DECISION

CONCLUSION--It is our opinion that Buckley's conviction of each of the three crimes with which he was charged is supported by sufficient evidence.

There was sufficient substantial evidence of probative value to sustain the judgment convicting Buckley of theft (OAPA), Unlawful Use of Credit Card, and Uttering A Forged Instrument.

The offense of theft under the Offenses Against Property Act (OAPA) consists of:

'(1) knowingly: (a) obtains or exerts unauthorized control over property of the owner; and (2)(a) intends to deprive the owner of the use or benefit of the property . . ..' I.C.1971, 35--17--5--3, Ind.Ann.Stat., § 10--3030 (Burns Supp. 1974).

The evidence is sufficient to support Buckley's theft conviction under (1)(a) and (2)(a) of I.C.1971, 35--17--5--3, supra.

Phipps testified that his Master Charge credit card had been stolen, that he did not know Buckley, and that he neither authorized nor permitted Buckley to use his credit card in any manner. By possessing Phipps' credit card knowing it was not his own, Buckley exerted unauthorized control...

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5 practice notes
  • Elmore v. State, No. 2-876
    • United States
    • Indiana Court of Appeals of Indiana
    • May 1, 1978
    ...not sentences should run consecutively or concurrently to the trial judge. Ind.Code 35-50-1-2. 3 See Buckley v. State (1975), Ind.App., 322 N.E.2d 113, footnotes 5 & 6, p. 4 Ind.Code 35-12-2-1 relating to automobile banditry was repealed by Acts 1976, P.L. 148, § 24, effective October 1, 19......
  • Dolan v. State, No. 3-577A133
    • United States
    • Indiana Court of Appeals of Indiana
    • October 24, 1978
    ...--------------- 1 The issue presented in the case at bar is analogous to that which was presented in Buckley v. State (1975) Ind.App., 322 N.E.2d 113, where this court held that uttering a forged instrument was a separate and distinct offense from and therefore not a lesser included offense......
  • Gresham v. State, No. 1-780A194
    • United States
    • Indiana Court of Appeals of Indiana
    • November 10, 1980
    ...v. State (1975) 164 Ind.App. 263, 328 N.E.2d 456; Sonafrank v. State (1975) 163 Ind.App. 141, 322 N.E.2d 719; Buckley v. State (1975) 163 Ind.App. 113, 322 N.E.2d 113; Hopper v. State (1974) 161 Ind.App. 29, 314 N.E.2d 98; Reid v. State (1973) 156 Ind.App. 692, 298 N.E.2d 480; McHaney v. St......
  • Hurst v. Hurst, No. 2--1073--A--217
    • United States
    • Indiana Court of Appeals of Indiana
    • October 14, 1975
    ...issues must be considered waived for failure to raise them in her motion to correct errors, TR. 59(G); Buckley v. State (1975), Ind.App., 322 N.E.2d 113, 115, n. The rule in Indiana for determining custody of children and for review of such judgments is quoted in Watkins v. Watkins (1943), ......
  • Request a trial to view additional results
5 cases
  • Elmore v. State, No. 2-876
    • United States
    • Indiana Court of Appeals of Indiana
    • May 1, 1978
    ...not sentences should run consecutively or concurrently to the trial judge. Ind.Code 35-50-1-2. 3 See Buckley v. State (1975), Ind.App., 322 N.E.2d 113, footnotes 5 & 6, p. 4 Ind.Code 35-12-2-1 relating to automobile banditry was repealed by Acts 1976, P.L. 148, § 24, effective October 1, 19......
  • Dolan v. State, No. 3-577A133
    • United States
    • Indiana Court of Appeals of Indiana
    • October 24, 1978
    ...--------------- 1 The issue presented in the case at bar is analogous to that which was presented in Buckley v. State (1975) Ind.App., 322 N.E.2d 113, where this court held that uttering a forged instrument was a separate and distinct offense from and therefore not a lesser included offense......
  • Gresham v. State, No. 1-780A194
    • United States
    • Indiana Court of Appeals of Indiana
    • November 10, 1980
    ...v. State (1975) 164 Ind.App. 263, 328 N.E.2d 456; Sonafrank v. State (1975) 163 Ind.App. 141, 322 N.E.2d 719; Buckley v. State (1975) 163 Ind.App. 113, 322 N.E.2d 113; Hopper v. State (1974) 161 Ind.App. 29, 314 N.E.2d 98; Reid v. State (1973) 156 Ind.App. 692, 298 N.E.2d 480; McHaney v. St......
  • Hurst v. Hurst, No. 2--1073--A--217
    • United States
    • Indiana Court of Appeals of Indiana
    • October 14, 1975
    ...issues must be considered waived for failure to raise them in her motion to correct errors, TR. 59(G); Buckley v. State (1975), Ind.App., 322 N.E.2d 113, 115, n. The rule in Indiana for determining custody of children and for review of such judgments is quoted in Watkins v. Watkins (1943), ......
  • Request a trial to view additional results

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