Collins v. State

• Decision Date: 26 January 1981
• Docket Number: No. 180S12,180S12
• Citation: 275 Ind. 86,415 N.E.2d 46
• Parties: Jesse Steven COLLINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 46

415 N.E.2d 46

275 Ind. 86

Jesse Steven COLLINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 180S12.

Supreme Court of Indiana.

Jan. 26, 1981.

John D. Clouse and Michael C. Keating, Evansville, for appellant (defendant below).

Linley E. Pearson, Atty. Gen., as of 1/12/81 and Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

HUNTER, Justice.

The defendant, Jesse Steven Collins, was convicted by a jury of attempted theft, a class D felony, Ind.Code §§ 35-41-5-1 and 35-43-4-2 (Burns 1979 Repl.), and being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.) (amended 1980). He was sentenced to two years for the class D felony and thirty years on the habitual offender charge. Defendant now raises six issues in this direct appeal:

1. Whether the trial court erred in overruling his motions to dismiss both counts of the information;

2. Whether the trial court erred in admitting state's exhibit number five;

3. Whether the trial court erred in admitting state's exhibits numbers six, seven, and ten;

4. Whether the trial court erred in permitting a state's witness to testify about another state's criminal law;

5. Whether the trial court erred in denying his motion for judgment on the evidence; and

6. Whether the trial court erred in giving state's instruction number six.

The evidence most favorable to the state reveals that in the early morning hours of July 11, 1978, Lloyd Gallion, assistant manager of Maaco Auto Painting and Body Works in Evansville, Indiana, heard a loud noise in the outer office of the business. He had been sleeping in a back room. When he went to investigate, he saw the room air conditioner disappearing out of the window. He proceeded out the front door and saw the defendant and another man holding the air conditioner. They immediately dropped it and ran. Gallion gave chase and eventually the two culprits were intercepted and apprehended by police a few minutes later. A latent fingerprint taken from the air conditioner proved to be that of defendant.

I.

Defendant contends that the trial court erred in overruling his motion to dismiss Count I of the information which was the theft charge. He first asserts that Ind.Code § 35-50-1-1 (Burns 1979 Repl.), which provides that the court shall fix the penalty and sentence a convicted person, violates his right to a jury trial as guaranteed by article I, § 13 of the Indiana Constitution and the sixth amendment to the U. S. Constitution. This Court has previously held that a defendant's right to trial by jury is not offended by a statutory scheme which does not require the jury to fix the punishment. Brandon v. State, (1979) Ind., 396 N.E.2d 365; Williams v. State, (1979) Ind., 395 N.E.2d 239. Defendant's argument is without merit.

Defendant also contends that Ind.Code § 35-50-2-7 (Burns 1979 Repl.) violates Article I, § 23 of the Indiana Constitution and the fourteenth amendment's equal protection clause of the U. S. Constitution because it provides for as much as a two-year increase in the sentence for a class D felony in case of aggravating circumstances but makes no provisions for lessening the basic two-year sentence when there are mitigating circumstances.

The determination of appropriate penalties for crimes committed in this state is a function properly exercised by the legislature, and the judiciary will disturb such a determination only upon a showing of clear constitutional infirmity. Neal v. State, (1977) 266 Ind. 665, 366 N.E.2d 650; Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352, cert. denied, 429 U.S. 851, 97 S.Ct. 141, 50 L.Ed.2d 125. Defendant overlooks subsection (b) of Ind.Code § 35-50-2-7, supra, which provides:

"(b) Notwithstanding subsection (a) of this section, if a person has committed a class D felony, the court may enter judgment of conviction of a class A misdemeanor and sentence accordingly. The court shall enter in the record, in detail, the reason for its action whenever it exercises the power granted in this subsection."

Class A misdemeanors carry a maximum one-year term of imprisonment. Ind.Code § 35-50-3-2 (Burns 1979 Repl.). Defendant's claim of unconstitutionality is without merit.

Defendant next makes a broadside constitutional attack on Ind.Code § 35-4.1-4-7 (Burns 1979 Repl.). He appears to place primary emphasis on the eighth amendment's prohibition against cruel and unusual punishment, citing Furman v. Georgia, (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. First, he contends that Ind.Code § 35-4.1-4-7(d), supra, unconstitutionally permits the trial judge to consider any factor he desires in determining the sentence in a given case. He maintains that such discretion could lead to the imposition of arbitrary sentences.

Ind.Code § 35-4.1-4-7(b) and (c), supra, provide a list of aggravating and mitigating factors that a trial court may consider in pronouncing sentence. Ind.Code § 35-4.1-4-7(d), supra, makes clear that these lists are non-exclusive. Implicit in subsection (d) is the requirement that any other factor considered by the trial court be relevant and supported by the evidence. See Harris v. State, (1979) Ind., 396 N.E.2d 674; McNew v. State, (1979) Ind., 391 N.E.2d 607.

In Gardner v. State, (1979) Ind., 388 N.E.2d 513, we noted that the statutory flexibility inherent in the concept of distinguishable aggravating and mitigating circumstances was directly related to the constitutional prohibition against cruel and unusual punishment and the mandate that all penalties be proportioned to the nature of the offense. We held there that when a judge increases or decreases the basic sentence, suspends the sentence, or imposes consecutive terms of imprisonment, the record should disclose what factors were considered by the judge to be mitigating or aggravating circumstances.

Therefore, if improper factors are utilized by the trial judge in imposing sentence, an appellate court would be in a position to review that determination. The appellate courts of this state have the power to review and revise criminal sentences. Ind.Const. Art. 7, §§ 4, 6; Ind.R.App.R.S. 1, 2. Defendant does not and cannot allege that the trial judge used an improper factor as an aggravating circumstance in sentencing him. He received the basic two-year term of imprisonment for committing the class D felony.

Second, defendant maintains that Ind.Code § 35-4.1-4-7, supra, is unconstitutional because it does not specify an exact number of years which are to be added whenever aggravating circumstances are found. He points out that under the various sentencing provisions for felonies, a trial judge may choose any number of years, within a specified range, which are to be added. Defendant asserts that this alleged defect also promotes arbitrariness.

In Murphy v. State, (1976) 265 Ind. 116, 352 N.E.2d 479, the defendant also cited Furman v. Georgia, supra, in support of his argument that the statute prescribing a determinate sentence of between ten and thirty years in prison was unconstitutional. In upholding the statute, we held that while Furman does, to some extent, restrict the degree of discretion in assessing sentences, it does not prohibit virtually all discretion as urged by the defendant. Further, defendant's argument has been rejected by the Court of Appeals in Wells v. State, (1979) Ind.App., 397 N.E.2d 1250, and in Boyd v. State, (1979) Ind.App., 396 N.E.2d 920.

We do not believe that Ind.Code § 35-4.1-4-7, supra, is unconstitutional. Rather, by allowing the trial judge to tailor the degree of punishment according to a defendant's particular background and characteristics, the statute is consistent with the eighth amendment to the U. S. Constitution and Article I, § 16 of the Indiana Constitution. The trial court did not err in overruling the motion to dismiss Count I.

Next, defendant asserts that the trial court erred in overruling his motion to dismiss the habitual offender charge. He contends that Ind.Code § 35-50-2-8, supra, is unconstitutional because it permits arbitrary enforcement by the prosecutor. He complains that whether or not the recidivist penalty is to be sought in any given case depends wholly upon the prosecutor's discretion, unrestrained by any statutory guidelines. We have very recently rejected the same argument in Eaton v. State, (1980) Ind., 408 N.E.2d 1281. There was no error here.

II.

State's exhibit number five consisted of two enlarged photographs. One was an enlargement of state's exhibit number two, which was the latent fingerprint taken from the air conditioner. The other was an enlargement of a fingerprint taken from state's exhibit number four, which contained the rolled and flat impressions of defendant's fingerprints.

Defendant first contends that the exhibit was inadmissible because he was not given a copy of it prior to trial as ordered by the court. However, the order to which defendant refers merely required the state to furnish defendant a copy of the ink fingerprints which were taken of him and this was done. During trial, the state informed the court that the first time it had seen the photographic enlargement was earlier that same day. The state explained that it was, therefore, impossible to have included the exhibit in its discovery answer but that it had informed defense counsel prior to trial that it was going to use enlargements. Defendant's attorney did not dispute that. There was no error here.

Next, defendant maintains that the exhibit was inadmissible because the state failed to show a complete chain of custody proving that the photographic enlargement contained the same prints as found in state's exhibits two and four. Nonfungible items do not require the high decree of scrutiny that must be applied to fungible items. Proctor v. State, (1979) Ind., 397 N.E.2d 980; Wilson v. State, (1975) 263 Ind. 469, 333 N.E.2d 755. Evidence...