Comer v. State

• Decision Date: 30 March 1981
• Docket Number: No. 3-880A243,3-880A243
• Citation: 417 N.E.2d 1180
• Parties: Robert COMER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1180

417 N.E.2d 1180

Robert COMER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-880A243.

Court of Appeals of Indiana, Third District.

March 30, 1981.

Sheldon H. Cohan, Merrillville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

STATON, Judge.

Robert Comer (Comer) was tried and convicted by a jury of one count of theft, ¹ a class D felony.

As we reverse the trial court's decision, we need only discuss the following issues:

(1) Were parts of testimony entered into evidence inadmissible hearsay? ²

(2) Was the evidence insufficient as a matter of law to sustain Comer's conviction?

We reverse.

I. Hearsay

Comer operated a retail used merchandise outlet known as "The Big Flea Market" in Gary, Indiana. He was charged with theft ³ as he had allegedly bought a stolen lawnmower and resold it.

At the trial, three police officers testified that a Leroy McAllister had been wired for sound. After they had searched McAllister to ascertain if he had any money, ⁴ McAllister took an electric lawnmower to the "Big Flea Market." The police officers related that they heard ⁵ McAllister tell Comer that the lawnmower was one of the lawnmowers McAllister had stolen from Community Discount Store, like he had sold to him before.

On appeal, Comer argues that the officer's testimony of what McAllister said was hearsay. He contends the trial court erred in admitting this testimony.

Hearsay has been defined as follows:

"(T)estimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court assertor." (Emphasis original)

Nuss v. State (1975), 164 Ind.App. 396, 328 N.E.2d 747, 753.

In Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759, Justice DeBruler quoted with approval from Wigmore on Evidence, as follows:

" 'The theory of the Hearsay rule (ante, § 1361), is that where a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extra-judicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the Hearsay rule.

" 'The prohibition of the Hearsay rule, then does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is a comparatively simple matter. The Hearsay rule excludes extra-judicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.' (Emphasis added.)"

The police officers' testimony was offered to prove the truth of the matters asserted therein; specifically, the testimony was offered to prove that Comer was exercising unauthorized control on the property of another. ⁶

As hearsay, the testimony should be regarded with suspicion as it is examined to determine if this hearsay testimony fails within one of the recognized exceptions to the hearsay rule. ⁷ This testimony does not fall within any of the recognized exceptions to the hearsay rule; ⁸ therefore, it is not sufficiently clear that the statement offered is free enough from the risk of inaccuracy and untrustworthiness that the test of cross-examination is superfluous.

The trial court erred in admitting this evidence for the jury's full consideration over Comer's hearsay objection.

This same evidence was also offered as evidence of Comer's knowledge or state of mind.

"Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned."

6 Wigmore on Evidence § 1789, p. 314 (Chadbourn rev. 1976). Comer's hearsay objection was properly overruled. This evidence was not admitted for any hearsay uses and can not be so used when Comer specifically objected to using this evidence for hearsay purposes. It was admissible for the limited purposes of showing Comer's state of mind.

Comer also argues that certain police officers' testimony about conversations with McAllister were improperly admitted over his hearsay objection. ⁹ We disagree.

This testimony was not used to assert the truth of the matters asserted therein. It was used to show why Comer was investigated. It does not fall within the category of hearsay. McNew v. State (1979), Ind., 391 N.E.2d 607. The trial court reminded the jury of the limited function for which this testimony was admitted during final instructions. ¹⁰

II. Insufficient Evidence

Comer argues that there was insufficient evidence as a matter of law regarding his alleged unauthorized control over property of another person. We agree.

When considering questions concerning the sufficiency of evidence on appeal, this Court will consider that evidence which is most favorable to the State, together with all the logical and reasonable inferences to be drawn therefrom. Inman v. State (1979), Ind., 393 N.E.2d 767. The verdict will not be disturbed if there is sufficient evidence of probative value to support the determination of guilt beyond a reasonable doubt. Walters v. State (1979), Ind., 394 N.E.2d 154.

We do not have to find that circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence; rather, we must only find that an inference may be reasonably drawn from the evidence to support the finding of the jury. Parks v. State (1979), Ind., 389 N.E.2d 286. If we determine that a reasonable person could not have drawn these essential inferences from the evidence presented, then the evidence is insufficient as a matter of law; under such circumstances it is our duty to reverse the judgment. Lottie v. State (1974), 262 Ind. 124, 311 N.E.2d 800.

The elements of the offense of theft which the State had to prove are (1) knowingly or intentionally, (2) exerts control over property, ¹¹ (3) of another person, (4) where the control is unauthorized, ¹² and (5) with the intent to deprive the other person of any part of the use or value. ¹³

The evidence in the light most favorable to the State on elements three and four (above) is as follows:

John Shaghnessey is employed by Garden Specialties, Inc., who leases the patio section from Community Discount. Shaghnessey runs the Garden Specialties section at Community Discount and is a supervisor over retail outlets. His records indicated 50 lawnmowers of the type involved in this cause of action had been purchased by the store in February, 1978. He further testified that 2 of these lawnmowers were stolen from the store on June 8th. These lawnmowers did not have serial numbers on them. He stated it was not possible for him to testify that the particular lawnmower in this cause of action was from his place of business. He did state that, to his knowledge, no one else in the retail area of Highland-Gary-Portage, Indiana sold this model. He did admit it was possible for someone else to have them in stock.

As this evidence is insufficient as a matter of law to prove whose lawnmower Comer purchased from McAllister and that Comer had exercised unauthorized control over the lawnmower, we must reverse.

GARRARD, J., concurs.

HOFFMAN, P. J., dissents with opinion.

HOFFMAN, Presiding Judge, dissenting.

I dissent.

Two types of evidence were offered in this case involving the hearsay objection. The first concerns the police officers' testimony relating conversations between McAllister and Comer. The second type of testimony related the officers' own conversations with McAllister. The majority opinion concludes that the hearsay objection is inapplicable in both instances because the evidence was not being offered to prove the truth of the matter asserted therein. This analysis is correct with respect to the second type of evidence only. Based on McNew v. State (1979), Ind., 391 N.E.2d 607, the officers may testify about their reasons for investigating a defendant and the hearsay rule is not applicable. The officers' own conversations with McAllister simply established the basis for their investigation and, thus, the evidence was admissible for that purpose.

This analysis is not valid, however, as applied to the first type of evidence. The conversation between McAllister and Comer was overheard by the police officers through the electronic surveillance equipment and the officers' testimony was offered as substantive evidence. The following discussion occurred when this evidence was first requested from Sergeant Highsmith:

"Q. While you were parked in your vehicle, did you have occasion to hear any conversation between individuals known to you as McAllister and Comer?

"A. Yes I did.

"Q. And what was said?

"BY SHELDON COHAN (Defense Counsel):

I object to recital of alleged conversation by Leroy McAllister. Hearsay as to this defendant. The witness is not available for cross examination. The defendant cannot cross examine him. The evidence about to be elicited is hearsay and not admissible, and we would at this point refer the court's attention to the last objection of the defendant.

"BY THE COURT:

I'll overrule the objection. The conversation which the officer is permitted to allude to is conversation of Leroy McAllister indicating his interest in the transaction.

"BY SHELDON COHAN:

I move for mistrial.

"BY ANDREW RODOVICH (P...