Cody v. State, 2--573A108
Citation | 304 N.E.2d 820,159 Ind.App. 125 |
Decision Date | 28 December 1973 |
Docket Number | No. 2--573A108,2--573A108 |
Parties | Carol CODY, alias Carol Lockett, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Court of Appeals of Indiana |
Robert E. Hughes, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
Carol Cody alias Carol Lockett was tried by court and convicted under the Offenses Against Property Act 1 on November 2, 1972. She was sentenced on December 21, 1972 to imprisonment in the Indiana Women's Prison for not less than one (1) nor more than ten (10) years. Cody timely filed her motion to correct errors which raises the following issues for this Court's consideration:
The record discloses the following evidence favorable to the State. On May 4, 1972 at approximately 12:00 o'clock noon, Shelia McClanahan, a security officer at the William H. Block Company, 4200 South East Street, Indianapolis, Indiana, observed Carol Cody and a companion, Jessie Peterson, in the better dress department. She testified as follows:
'Q. Let me back up just a minute, if I may, and ask you at the time you originally saw the Defendant, what exactly did you see her do herself?
'A. I observed Carol Cody take two dresses from the rack with her left hand on one side of the sack, and her right hand took the two dresses from the rack, and pushed them down inside the sack.
'Q. All right. Where was her companion at that time?
Officer McClanahan stated that she was eight feet away from Carol Cody and had a clear view of her transferring the dresses. This testimony is further substantiated by the observations of Special Deputy Larry Sexson of the Marion County Sheriff's Department, who was also working as a security officer at the William H. Block Company on May 4, 1972. He testified:
'A. Yes, I saw the subjects enter the store, at which time I immediately called Officer McClanahan to help me to take over the surveillance of the two subjects.
'Q. Then what did you do, Sir?
'A. I stood approximately 20 feet away from the subjects, while they were in the better dress Department.
'Q. Could you see the subjects at this time?
'A. Yes, I could.
When Officer McClanahan approached Carol Cody, she dropped the sack containing the two dresses. Her companion ran from the store. Officer McClanahan testified that Carol Cody passed approximately six cash registers without paying for the dresses and was only six to eight feet from the south door of the store before she was stopped. The direct evidence set out above is sufficient to support the conviction.
ISSUE TWO: Under I.C. 1971, 35--17--5--12; Ind.Stat.Ann. § 10--3039 (Burns 1973 Supp.), the penalty for theft of property valued at less than one hundred dollars ($100.00) differs from the penalty for theft of property valued at one hundred dollars ($100.00) or more:
'Penalties--Civil action by injured person--Triple damages.--(1) A person convicted of theft of property not from the person and of less than one hundred dollars ($100) in value shall, except as otherwise provided in this section, be fined not more than five hundred dollars ($500) or imprisoned for not more than one (1) year, or both, or such person may be imprisoned in the state prison not less than one (1) year nor more than (5) years, and fined in a sum not exceeding five hundred dollars ($500) and be disfranchised and rendered incapable of holding any office of profit or trust for any determinate period.
'(3) A person convicted of theft of property of one hundred dollars ($100) or more in value shall be fined in any sum not exceeding five thousand dollars ($5,000) or imprisoned for not less than one (1) year nor more than ten (10) years, or both, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.'
Carol Cody's second contention of error is that because there is some question about the chain of custody of the price tags submitted into evidence with the dresses taken from the William H. Block Company, this evidence is insufficient to show theft of property with a value of one hundred dollars ($100.00) or more. This contention of error must fail for two reasons.
We agree that the record discloses some question as to whether the price tags in question were continuously attached to the dresses taken from the William H. Block Company. However, the Prosecutor attached the price tags to the dresses in court and submitted the dresses...
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