Busam v. State

• Decision Date: 16 February 1983
• Docket Number: No. 1-982A277,1-982A277
• Citation: 445 N.E.2d 118
• Parties: Wayne BUSAM, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 118

445 N.E.2d 118

Wayne BUSAM, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-982A277.

Court of Appeals of Indiana First District.

Feb. 16, 1983.

Mark Leo Reed, Lowry & Reed, Sullivan, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Wayne Busam was convicted of theft ¹ pursuant to trial by the court and sentenced to the Indiana Department of Correction for a term of four (4) years. ² He appeals his conviction and sentence. We affirm in part and remand for further proceedings.

FACTS

On December 29, 1981, Busam and an accomplice drove to the Templeton Coal Company's Jonay Mine in Sullivan County to obtain copper wire. The mine was no longer in operation, but electric motors and other machinery were still at the scene. They dismantled an electric motor, removed the copper wire, burned the insulation off the wire, loaded the wire onto Busam's truck, and proceeded to a salvage yard to sell the wire. A nearby resident witnessed Busam and his accomplice throwing the wire over the fence at the mine site and called the police. The police met Busam and his confederate at the salvage yard, arrested them, and confiscated the copper wire which weighed sixty to sixty-five pounds. Busam and the same accomplice in November 1981 had taken copper from the Jonay mine and sold it. No evidence of any specific value of the stolen copper was presented by the state.

At the sentencing hearing, the probation officer testified, in response to questioning by the judge, that he delivered a copy of the pre-sentence investigation report to Busam at the county jail, and that the sheriff informed him that Busam burned the report. The trial judge listed this along with Busam's history of criminal activity revealed by the presentence investigation report as aggravating circumstances justifying enhancement of the sentence.

ISSUES

1. Whether the trial court erred in finding Busam guilty of theft when the value of the stolen copper wire was not established.

2. Whether the trial court erred in considering, at sentencing, the probation officer's testimony that Busam burned his copy of the pre-sentence investigation report.

3. Whether the pre-sentence investigation report complied with the provisions of Ind.Code Sec. 35-4.1-4-10.

DISCUSSION AND DECISION

Issue One

Busam contends it was error for the court to find him guilty of theft because no evidence of the actual value of the stolen copper wire was introduced. We disagree.

First, we point out that the present theft statute differs from its predecessors in that no reference is made to the specific monetary value of the stolen property. ³ The present statute requires only proof that the accused knowingly or intentionally exerted unauthorized control over property of another person intending to deprive the other person of any part of the value or use of the property. West's AIC Sec. 35-43-4-2(a). The monetary value of the property no longer is of any concern. Nevertheless, since property is defined as "any thing of value," West's AIC Sec. 35-41-1-2 (Supp.1982-83), the stolen property must be shown to have some value in order to sustain a charge of theft.

It is true prior decisions have stated that the prosecution must prove that the property stolen was of some value and that inferences or presumptions may not be indulged with respect to value of property other than money. Burrows v. State, (1894) 137 Ind. 474, 37 N.E. 271; 18 I.L.E., Larceny, Sec. 28 (1959). Our supreme court said in Baker v. State, (1928) 200 Ind. 336, 163 N.E. 268, without proof of the value of the stolen property there can be no conviction of larceny and in the absence of evidence the trier of fact could not indulge in presumptions as to value. The court refused to adopt the general rule that the jury may infer value where the nature of the property is such as to justify such an inference.

It is significant to note that these earlier decisions demanding proof of value and forbidding inferences thereof were decided under former statutes where the grade of the crime ⁴ or the severity of the punishment depended upon the monetary value of the property. Such distinctions are no longer relevant under our present statute where the monetary value of the property stolen is of no moment. In fact, more recent decisions have departed from the rigidity of the rule announced in the earlier cases.

In Lane v. State, (1978) 175 Ind.App. 543, 372 N.E.2d 1223, a case involving the former statute, the defendant was charged with theft of property of $100 or more in value. Theft of a room air conditioner and a television set was established, but no value was shown. Judge Hoffman, writing for this court, stated:

"[T]he appellant's attack on the sufficiency of the evidence is only directed to the element of the value of the stolen goods. While the evidence and the reasonable inferences therefrom fail to prove value of $100 or more, the nature of the stolen items (a television set and room air conditioner) admits some inherent value albeit less than $100. Thus, the evidence is sufficient to support a conviction for the lesser and included offense of theft of property valued at less than $100...."

175 Ind.App. at 547, 372 N.E.2d at 1226.

In Pruitt v. State, (1975) 166 Ind.App. 67, 333 N.E.2d 874, the evidence showed that Pruitt broke the lock off a gasoline storage tank, filled a gasoline can therefrom, and poured it in his truck. Judge Lowdermilk wrote for this court:

"This evidence is clearly sufficient to uphold a conviction for theft. Inasmuch as the charge was for theft of property worth under $100.00, the amount of the theft is irrelevant, so long as some property has been stolen. That was clearly shown in this case." (Emphasis added.)

166 Ind.App. at 77, 333 N.E.2d at 880.

These later holdings clearly comport with the general rules that although property must have some value in order to be the subject of theft, any value, however slight, is sufficient, C.E. Torcia, Wharton's Criminal Law, 14th Ed. Sec. 384 (1980), and that when the grade of the offense or the punishment therefor does not depend on the value of the stolen property, no specific value need be proven, so long as the property is shown to have some value. 50 Am.Jur.2d, Larceny, Sec. 159 (1970).

Further, it has been stated that if there is any evidence from which the trier of fact may reasonably infer the existence of value, the evidence is adequate and the inferences properly may be drawn. State v. Pelkey, (1968), Me., 238 A.2d 611. This rule, we believe, was followed by Judge Hoffman in Lane, and is indeed a reasonable and sensible rule. See also Gardner v. State, (1969) 6 Md.App., 483, 251 A.2d 901, (the nature of the appliances stolen permitted a rational inference that their value was $100 or more); Jackson v. State, (Fla.Dist.Ct.App.1982) 413 So.2d 112, (jury could infer a 37 foot sailboat was worth more than $100). We believe this rule is consistent with the rule that while the state must sustain its burden of proof on each element of the offense, some of the elements may be proved by circumstantial evidence. Lisenko v. State, (1976) 265 Ind. 488, 355 N.E.2d 841; Eldridge v. State, (1980) Ind.App., 406 N.E.2d 1264; Stayton v. State, (1980) Ind.App., 400 N.E.2d 784, trans. denied. In fact, a conviction may be based on circumstantial evidence alone. Stayton.

Since it is no longer necessary to establish the market value of the stolen property in order to determine either the grade of the offense or the severity of the punishment, we hold that it is necessary to prove only that the stolen property had some value in order to sustain a conviction for theft under the current statute. Further, any evidence from which some value, however slight, can be inferred is sufficient.

Turning to the evidence in this case, it was proved that some sixty to sixty-five pounds of copper wire were removed from an electric motor by Busam and his accomplice and taken to a salvage yard to be sold. The same thieves previously had removed copper wire from motors at the same location and had sold it to the same salvage yard. The trier of fact clearly could find the existence of some value from this evidence. That is sufficient.

Issue Two

Busam next contends it was error to permit the probation officer to testify that Busam burned his copy of the pre-sentence report. He challenges this evidence on hearsay grounds, because such information was not included in the report thereby depriving him of an opportunity to refute it and that he was prejudiced by the court's consideration of this evidence in enhancing his sentence. We reject these arguments.

First, Busam made no objection to the alleged hearsay testimony. Any error on the basis of hearsay was waived by failure to object. Duncan v. State, (1980) Ind., 412 N.E.2d 770. Evidence admitted without objection may be considered for its probative value. Kinnaman v. State, (1977) 266 Ind. 622, 366 N.E.2d 165. We do not believe Busam was relieved of the duty to object merely because the judge was examining the witness. It is well settled that the trial court may direct questions to a witness so long as it is done in an impartial manner. McManus v. State, (1982) Ind., 433 N.E.2d 775; Atkinson v. State, (1979) Ind.App., 391 N.E.2d 1170, trans. denied. We have reviewed the examination of the witness by the judge and find nothing abusive, unfair, or lacking in impartiality in the manner of questioning. Also, the strict rules of evidence applicable during the trial are no longer applicable at sentencing. Hineman v. State, (1973) 155 Ind.App. 293, 292 N.E.2d 618.

Busam further contends the sentencing procedure was improper because the court arrived at its sentencing conclusion based upon material in the pre-sentence report not disclosed to him and which he had no opportunity to refute,...