Clarkson v. State, No. 884

Docket NºNo. 884
Citation486 N.E.2d 501
Case DateDecember 17, 1985
CourtSupreme Court of Indiana

Page 501

486 N.E.2d 501
Ken CLARKSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 884 S 322.
Supreme Court of Indiana.
Dec. 17, 1985.

Page 503

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Ken Clarkson was convicted by a jury in Henry County Circuit Court on March 7, 1984 of six counts of Unlawful Sale of Unregistered Security, six counts of Fraud in the Sale of a Security, six counts of Unlawfully Transacting Business as an Agent, and seven counts of Theft. He was also found to be an habitual offender. Judge John L. Kellam sentenced Appellant as follows: five years for each count of Unlawful Sale of an Unregistered Security, five years for each count of Fraud in the Sale of a Security, five years for each count of Unlawfully Transacting Business as an Agent, and two years for each count of Theft, said sentences to run concurrently. Appellant's sentence was enhanced an additional thirty (30) years for having been found an habitual offender.

Appellant now directly appeals, raising the following errors:

1. denial of a motion for continuance;

2. denial of two motions for mistrial;

3. admitting Phillip McCool's testimony;

4. admitting testimony regarding a common scheme;

5. sufficiency of the evidence; and

6. failing to instruct the jury on intent.

Ken and Dortha Hutchens, a couple in their 70's, were first approached by a Mr. Ikerd, an insurance salesman and Appellant Ken Clarkson, a former insurance salesman for the overt purpose of selling insurance. However, Dortha Hutchens, who managed the couple's finances, testified that Appellant returned to the Hutchens home several times thereafter, soliciting investment funds for his company. Appellant told the Hutchenses that they were currently paying too much in taxes on their investments and that their investment with him would be as good as with any loan company, would yield tax-free interest and would be insured. Although Appellant was vague as to the nature of the investment, the Hutchenses testified that they thought they were investing in a loan company. The initial rate of return, Appellant told the Hutchens was to be 12%. Later the amount of interest would be 15%. On February 13, 1980, Dortha and Ken Hutchens issued two checks made payable to the Ken Clarkson Agency, each in the amount of five-thousand dollars ($5,000.00). In return the Hutchenses received two promissory notes. On June 2, 1980, the Hutchenses issued two more checks to the Ken Clarkson Agency for five-thousand dollars ($5,000.00) each, and again received in return two promissory notes. On August 14, 1980, two more checks were issued to the Ken Clarkson Agency, for ten-thousand dollars ($10,000.00) each, and for which the Hutchenses received receipts. On November 20, 1980, Dortha Hutchens issued a check to Ken Clarkson, accidentally omitting the word "Agency", for ten-thousand dollars ($10,000.00). She received neither a note nor a receipt for this check. Initially the Hutchenses were hesitant to reinvest their interest payments, but were persuaded by Clarkson. In December of 1980, the Hutchenses received a promissory note for one-thousand, eight-hundred dollars ($1,800.00) for interest earned but reinvested. After two years, Dortha received a letter which stated Clarkson had encountered financial difficulties and was contemplating

Page 504

bankruptcy. Thereupon, the Hutchenses retained counsel, and began these proceedings.
I

Appellant first argues that the trial court abused its discretion by denying counsel's motion to withdraw his appearance and by denying a continuance based upon that motion. On February 18, 1983, counsel for Clarkson formally moved to withdraw his appearance on behalf of Clarkson, citing as his reasons that it was likely the charges against Clarkson could not be resolved without trial and that it was likely that he would be called by the State as a witness at trial. On March 8, 1983, the court denied the initial motion of counsel to withdraw. On the first day of trial, counsel for Clarkson renewed his motion. Further, counsel moved to continue the date of trial citing three bases: first, counsel's intent to withdraw; second, the illness of Clarkson; and third, the unavailability of certain evidence. The court overruled both motions.

Ind.Code Sec. 35-36-7-1 (Burns 1982) allows a continuance to be granted upon proper showing that there is an absence of evidence or illness of the defendant or a witness which precludes the conducting of the trial, provided a motion is made five days prior to commencement of trial and is supported by appropriate affidavits. Continuances not conforming to the statutory edicts may be granted within the sole discretion of the trial court. Carter v. State (1983), Ind., 451 N.E.2d 639. The denial of a Motion for Continuance is reversible only when the denial constituted an abuse of discretion and the record demonstrates that the accused was prejudiced. Harris v. State (1981), Ind., 427 N.E.2d 658. The court's refusal to allow counsel to withdraw the day of trial is not reversible error in that counsel was never called to testify. Consequently, Appellant has not demonstrated any resulting prejudice. Vacendak v. State (1982), Ind., 431 N.E.2d 100. Also, counsel's motion for a continuance based on Appellant's illness or unavailability of evidence for trial was made the day of trial. Thus, the court's denial is reviewable only for an abuse of discretion. Counsel merely asserted to the trial court that it would be detrimental to Clarkson's health to proceed with trial. He stated he was unable to get a statement from Clarkson's doctor because she was out of town. Based on this evidence alone it was not an abuse of discretion for the trial court to deny the motion for continuance. Further, the trial court relied heavily upon the fact that counsel for Clarkson had not made a motion to obtain the materials held in Warrick County, which counsel alleged were unavailable. The trial court did not abuse its discretion by denying a continuance when the absence of evidence was due to counsel's inaction. Consequently, Appellant has failed to demonstrate error by raising this issue.

II

Appellant next argues that the trial court erred by denying his motion for mistrial based upon the alleged evidential harpoon thrust into the trial by the testimony of Thomas Jarvis, Indiana State Police Officer. In the early stages of trial, Jarvis stated he had concluded that Appellant had deceived the Hutchenses. Appellant claims this testimony so prejudiced the jury that the admonition given by the court was necessarily insufficient to cure the harm. In considering allegations of the use of an evidentiary harpoon, we analyze whether the evidence was intentionally interjected despite its known inadmissibility, whether there was a serious conflict in the evidence, the degree to which the defendant was implicated by the evidence under scrutiny, and the trial court's admonishment to the jury. Davis v. State (1981), 257 Ind. 509, 418 N.E.2d 203, 205. The other evidence introduced at trial overwhelmingly showed Appellant's guilt in committing the crimes with which he was charged. Further Jarvis had investigated the possibility of fraud having been committed against the Hutchenses. When asked what tasks he had been contacted to perform, he enumerated the tasks and then unexpectedly blurted

Page 505

out his personal conclusion at the end of his answer. It is clear from the record that this testimony was not intentionally solicited by the State. Also, the question of...

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21 practice notes
  • State v. Mueller, Nos. 93-3227-C
    • United States
    • Court of Appeals of Wisconsin
    • March 28, 1996
    ...is not an element of the securities fraud offense. 2 Bayhi v. State, 629 So.2d 782, 791 Page 461 (Ala.Crim.App.1993); Clarkson v. State, 486 N.E.2d 501, 507 (Ind.1985); People v. Mitchell, 175 Mich.App. 83, 437 N.W.2d 304, 306-08 (1989); State v. Fries, 214 Neb. 874, 337 N.W.2d 398, 405 (19......
  • State v. Andresen, (SC 16437)
    • United States
    • Supreme Court of Connecticut
    • May 29, 2001
    ...3d 542; People v. Terranova, supra, 38 Colo. App. 482; State v. Montgomery, 135 Idaho 348, 350-52, 17 P.3d 292 (2001); Clarkson v. State, 486 N.E.2d 501, 506-507 (Ind. 1985); State v. Kershner, supra, 801 P.2d 70-71; State v. Dumke, 901 S.W.2d 100, 103 (Mo. App. 1995); State v. Irons, 254 N......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1986
    ...intent, motive, identification or common scheme or plan. We hold the trial court properly did this. See Clarkson v. State (1985), Ind., 486 N.E.2d 501, Defendant basically contends that since the trial court earlier had refused to join the two incidents for trial they were therefore not sim......
  • Smith v. State, No. 49A02-8602-CR-51
    • United States
    • Indiana Court of Appeals of Indiana
    • August 4, 1986
    ...the record demonstrates that the accused was prejudiced. Harris v. State (1981), Ind., 427 N.E.2d 658." Clarkson v. State (1985), Ind., 486 N.E.2d 501, The defendant's motion did not fall within any of the statutory bases of Ind. Code Sec. 35-36-7-1. The only possible ground is in subsectio......
  • Request a trial to view additional results
21 cases
  • State v. Andresen, (SC 16437)
    • United States
    • Supreme Court of Connecticut
    • May 29, 2001
    ...3d 542; People v. Terranova, supra, 38 Colo. App. 482; State v. Montgomery, 135 Idaho 348, 350-52, 17 P.3d 292 (2001); Clarkson v. State, 486 N.E.2d 501, 506-507 (Ind. 1985); State v. Kershner, supra, 801 P.2d 70-71; State v. Dumke, 901 S.W.2d 100, 103 (Mo. App. 1995); State v. Irons, 254 N......
  • State v. Mueller, Nos. 93-3227-C
    • United States
    • Court of Appeals of Wisconsin
    • March 28, 1996
    ...is not an element of the securities fraud offense. 2 Bayhi v. State, 629 So.2d 782, 791 Page 461 (Ala.Crim.App.1993); Clarkson v. State, 486 N.E.2d 501, 507 (Ind.1985); People v. Mitchell, 175 Mich.App. 83, 437 N.W.2d 304, 306-08 (1989); State v. Fries, 214 Neb. 874, 337 N.W.2d 398, 405 (19......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1986
    ...intent, motive, identification or common scheme or plan. We hold the trial court properly did this. See Clarkson v. State (1985), Ind., 486 N.E.2d 501, Defendant basically contends that since the trial court earlier had refused to join the two incidents for trial they were therefore not sim......
  • Smith v. State, No. 49A02-8602-CR-51
    • United States
    • Indiana Court of Appeals of Indiana
    • August 4, 1986
    ...the record demonstrates that the accused was prejudiced. Harris v. State (1981), Ind., 427 N.E.2d 658." Clarkson v. State (1985), Ind., 486 N.E.2d 501, The defendant's motion did not fall within any of the statutory bases of Ind. Code Sec. 35-36-7-1. The only possible ground is in subsectio......
  • Request a trial to view additional results

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