Burst v. State, 4-1185A304

• Decision Date: 17 November 1986
• Docket Number: No. 4-1185A304,4-1185A304
• Citation: 499 N.E.2d 1140
• Parties: Mark A. BURST, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1140

499 N.E.2d 1140

Mark A. BURST, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-1185A304.

Court of Appeals of Indiana Fourth District.

Nov. 17, 1986.

Rehearing Denied Jan. 13, 1987.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Mark A. Burst appeals his convictions of three counts of conversion (counts II, IV, and V), one count of dealing in a schedule III controlled substance (84 CR 11), two felony counts of dealing in marijuana (counts VI and VII), and one misdemeanor count of dealing in marijuana (Count I). He raises the following issues for our consideration:

(1) Did the trial court err in denying his motion to dismiss for misjoinder of offenses and motion for severance?

(2) Did the trial court err in denying his motion to dismiss 84 CR 11 where the state failed to bring him to trial within one year?

(3) Did the trial court err in refusing to order the state to produce its confidential informant for a deposition?

(4) Did the trial court err in denying his motion to dismiss based on the state's alleged discriminatory enforcement of the law?

(5) Did the trial court err in admitting the state's exhibits 9, 10, 11, and 12?

(6) Did the trial court err in admitting the state's exhibits 6 and 13?

(7) Did the trial court err in admitting hearsay evidence to establish the elements of the charges against him?

(8) Did the trial court err in admitting the state's exhibits 1, 2, 3, 4, 5, and 7?

(9) Is the evidence sufficient to support his conviction on Count VI for delivering more than thirty grams of marijuana?

(10) Is the evidence sufficient to support the verdict on all counts?

(11) Was the trial court's imposition of consecutive sentences manifestly unreasonable?

We affirm counts IV and V, reverse 84 CR 11, and reverse and remand counts I, II, VI, and VII for a new trial.

In December of 1982, undercover police officer Michael Hoover began a six month sting operation in Perry County. Upon Hoover's request, the police provided him a confidential informant to help infiltrate the criminal community. The informant was paid for his services. The informant met Burst and Billy Masterson, and introduced Hoover to them.

On three occasions during December and January, Hoover, accompanied by the informant, purchased from Burst a substance determined to be marijuana. On March 11, the informant called Hoover to set up the sale of a TV and VCR. Hoover purchased the items from Burst and Masterson. Ralph Werner identified the items as ones which had been stolen from his business. The following night Burst sold Hoover three pills which were later determined to be Phendimetrazine, a schedule III controlled substance.

On April 18, Burst and Masterson sold Hoover eight typewriters. The typewriters were later identified as having been stolen from Cannelton High School. On May 20, Hoover purchased from Burst a .22 caliber Sturm & Ruger pistol, which was later identified by Cyril Powers as a gun that had been stolen from him. Based on these transactions, Burst was charged and convicted of three counts of dealing in marijuana, three counts of conversion, and one count of dealing in a schedule III controlled substance. He now challenges each of these convictions.

I.

Burst contends the trial court erred in allowing all of the counts to be tried together. He first argues the offenses were misjoined. IND.CODE 35-34-1-9(a) provides:

Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:

(1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Burst's motion to dismiss for misjoinder was denied. Burst was charged with four drug dealing offenses and four theft related offenses. The offenses therefore were not joined on the basis of similarity under (a)(1) of IC 35-34-1-9; rather they were joined because they were "a series of acts connected together or constituting parts of a single scheme or plan." IC 35-34-1-9(a)(2). Burst engaged in a series of transactions with the same buyer, Officer Hoover. Hoover in essence became a business associate who would buy Burst's drugs or fence Burst's illegally obtained merchandise. Even though the police sting operation facilitated the series of transactions, we examine the series of acts from Burst's viewpoint: he developed an ongoing relationship with Hoover, whom he presumed was his partner in crime. The purpose of the relationship was for Burst to make a profit from his criminal activities. The series of transactions involved the same primary figures: Burst, Hoover, Masterson, and the informant. We therefore conclude the offenses were properly joined under IC 35-34-1-9(a)(2).

Burst also argues the trial court erred in denying his motion for severance of the offenses. IND.CODE 35-34-1-11(a) provides:

Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering:

(1) the number of offenses charged;

(2) the complexity of the evidence to be offered; and

(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

As previously noted, the offenses were not joined solely because of similar character; therefore, the court was not required to grant severance upon demand. We must therefore determine whether the trial court, after considering the factors listed in 35-34-1-11(a), should have granted severance. We will reverse only if Burst can demonstrate clear error. Dudley v. State (1985), Ind., 480 N.E.2d 881, 894.

In Sweet v. State (1982), Ind., 439 N.E.2d 1144, our supreme court held that, where multiple charges arose from activities conducted during a two month period and involved many ongoing transactions with the same undercover officers and same informants, no prejudice resulted to the defendant by the trial court's refusal to grant severance. Burst argues that Sweet is distinguishable, since the eight charges in that case were all drug-related and therefore similar in character. This argument is without merit since the court in Sweet would have been required to grant severance upon demand for offenses joined solely on the basis of similarity. IC 35-34-1-11(a).

The trial court was within its discretion in determining that Burst would not be prejudiced by a denial of severance. The number of offenses charged, eight, certainly was not unmanageable. Nor was the evidence complex, as the same primary figures were involved in the transactions. Further, the trier of fact demonstrated that it could distinguish the evidence and apply the law intelligently. The fact that it acquitted Burst on the burglary charge is evidence of this. Burst presents us with no evidence of any actual confusion. We therefore hold the trial court properly denied Burst's motion for severance.

II.

Burst next contends the trial court erred in denying his motion to dismiss 84 CR 11 because the state failed to bring him to trial within one year. On March 12, 1984, Burst was charged in 84 CR 11 with dealing in a schedule III controlled substance. On March 21, the state moved to consolidate 84 CR 11 with 83 CR 62, which consisted of the other seven charges. The record does not indicate that Burst objected or agreed to the state's motion. On January 2, 1985, the trial court scheduled a jury trial on 83 CR 62 for May 13, 1985. Finally, on April 17 the trial court granted the state's motion to consolidate 83 CR 62 and 84 CR 11. Burst moved to dismiss 84 CR 11 on May 13, before trial pursuant to Ind.Rules of Procedure, Crim.Rule 4(C).

Criminal Rule 4(C) provides No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Any defendant so held shall, on motion, be discharged.

The burden is first upon the state to see that the defendant is brought to trial within the one year period, and the defendant is not required to take affirmative steps to obtain trial within that period. State v. Tomes (1984), Ind.App., 466 N.E.2d 66, 70. ¹

The state argues Burst waived his right to a speedy trial under rule 4(C) by failing to object in January of 1985 when the trial court set the trial date for May 13, a date beyond the one year period. We disagree. When scheduled in January, the trial date of May 13 applied only to 83 CR 62. The fact that 83 CR 62 and 84 CR 11 were later consolidated does not cause Burst's opportunity to object to relate back to the January scheduling date.

The state argues that in January Burst treated the two cases as if they were consolidated. Whether Burst thought the judge would rule in favor of consolidation is irrelevant. The two cases were not officially consolidated until April...