Cornman v. State

• Decision Date: 19 April 1973
• Docket Number: No. 1--972A70,1--972A70
• Citation: 156 Ind.App. 112,294 N.E.2d 812
• Parties: Charles CORNMAN, Sr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 812

294 N.E.2d 812

156 Ind.App. 112

Charles CORNMAN, Sr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--972A70.

Court of Appeals of Indiana, First District.

April 19, 1973.

William K. Steger, Bloomington, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for plaintiff-appellee.

LOWDERMILK, Judge.

Defendant-appellant, Charles Cornman, Sr. was charged with the offense of theft. The amended affidavit alleged that the defendant-appellant '. . . knowingly, unlawfully and feloniously exerted unauthorized control over the property of Benovele Lincoln Mercury Automobile Dealership, . . . by concealment with the intent then and there to conceal the property in such manner as knowingly to deprive the owner permanently of the use and benefit of said property.'

After a plea of not guilty, jury trial was waived and the defendant-appellant was tried by the court and found guilty and was sentenced, under the theft act, to prison for one to ten years and fined $100.00.

Defendant-appellant timely filed his motion to correct errors, setting forth four specifications and has waived the fourth specification by not arguing the same in his brief. Rule AP. 8.3(A)(7).

The three specifications of error relied upon for reversal are, briefly:

(1) Whether the evidence is sufficient to support the verdict;

(2) Whether the court prematurely terminated the defendant's case, thus denying defendant a fair trial; and

(3) Whether the police surveillance of defendant's property constituted an illegal search and seizure.

The motion to correct errors was by the court overruled, praecipe was filed for the record and this appeal is now before us.

The facts are that on March 30, 1970, at about the hour of midnight, a break-in at the Benovele Lincoln Mercury Dealership, located at 319 North College Avenue in Bloomington was discovered and reported to the police. Investigation was made and inventory at the dealership was made and two Mercury vehicles and certain auto parts and accessories were discovered missing, along with a cutting torch and gas and oxygen tanks which were a part thereof.

Earlier that evening, one Ferguson Mills, who was bailiff of the Monroe Circuit Court and who was working on his Master's Degree at Indiana University, was a passenger in a motor vehicle which stopped at a street intersection and he observed a blue or green Dodge pick up truck towing a light brown or tan colored Mercury automobile. Mr. Mills identified the defendant-appellant as being alone in the Dodge pick up and as being the driver thereof from a photograph presented to him, and on a face to face confrontation in the court room identified defendant-appellant as the driver of the Dodge pick up truck he had seen the night of the theft.

The automobile which had been towed by defendant-appellant was later found near where it had been seen and was burning and was identified by the State Police as having been stolen from the Benovele Lincoln Mercury Dealership.

The police in their investigation discovered a truck matching a description given by the witnesses in defendant-appellant's driveway. They talked to him in the driveway next to his home which was located near Bloomington and which had a stone quarry on the rear thereof which was used as a public dump. The entire area outside of the public dump and where the home was located, along with several house trailers, was a wilderness of white pines that one could not see through from any public highway.

The police, after talking to Mr. Cornman in his driveway, walked back to the stone quarry and observed three individuals who, upon seeing them, ran into Mr. Cornman's mobile home.

Another car was subsequently found stripped and containing pine needles in its interior.

The police used a State Police helicopter to fly over this area and determined that in the center of all the pines there was a clearing and it was used as what appeared to be a junk yard and dump. They also approached the place from two private roads and could not discover any boundary line between the Cornman property and his neighbors, although Cornman said that he had No Trespassing signs all the way around his property and the police were trespassers at any time they set foot thereon. This evidence is disputed by a police officer who testified that he was all around the property and did not see such signs.

The police, after fortifying themselves with a search warrant duly served the same upon defendant-appellant Cornman and searched the premises and found a seat to a Mercury automobile which was identified as being out of the Mercury taken from the Benovele Dealership on the night defendant-appellant was seen towing the other Mercury and which second car had not been burned. The police also found a cutting torch and oxygen and gas tanks as a part thereof which was identified as belonging to the Benovele Dealership and also found many accessories and parts, including spark plugs, which were identified as having been removed from the Benovele Dealership on the night in question. The cutting torch and tanks had been very well covered with pine needles and branches in order, it appeared, to hide them from anyone who might be on defendant-appellant's premises.

Defendant-appellant maintains that the circumstantial evidence used by the State of Indiana in his trial and conviction was not adequate to sustain the conviction for the reason all reasonable hypothesis of innocence must be excluded. He cites and relies on the case of Hardesty v. State (1967), 249 Ind. 518, 231 N.E.2d 510, wherein the court said:

'It is well settled in Indiana that a conviction may be affirmed by this Court on circumstantial evidence alone. Bradley v. State (1964), 244 Ind. 630, 195 N.E.2d 347. However, such evidence must preclude every other reasonable inference of innocence.

On appeal from a criminal conviction where the sufficiency of the evidence is challenged, the Supreme Court cannot weigh the evidence, but will consider only the evidence most favorable to the State, and the reasonable inferences that may be drawn therefrom, to determine whether the jury was warranted in returning a verdict of guilty. Gilmore v. State (1951), 229 Ind. 359, 98 N.E.2d 677; Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d 185.'

Defendant-appellant further contends that for the conviction to stand on circumstantial evidence the State has a burden to show that defendant had control of the goods and that such control and concealment were exclusive. He further made the analogy to the former crime of larceny, where it was often held that the unexplained, exclusive possession of recently stolen property constitutes a circumstance from which a court or jury may draw an inference of guilt, and relied on Gilley v. State (1949), 227 Ind. 701, 88 N.E.2d 759. In Gilley, at page 705, 88 N.E.2d at page 761, the court said:

'. . . The rule is that unexplained, exclusive possession of recently stolen property constitutes a circumstance from which a court or jury may draw an inference of guilt. . . .'

The court said, further, that the owner of the property involved in that action positively identified it as having been taken from his store and it was found in the automobile occupied by the two appellants only a few minutes after it was stolen. Our Supreme Court said:

'. . . The circumstance was sufficient to permit the trial court to draw an inference of guilt and convict the appellants. . . .'

Further, defendant-appellant relies on the case of Underhill v. State (1966), 247 Ind. 388, 216 N.E.2d 344, on his proposition that too great a time had elapsed before the property was discovered in the possession of the defendant and that he had had exclusive possession during that period of time.

The court said, in Underhill, supra, at page 390, 216 N.E.2d at page 345:

'. . . Normally, an elapse of a few hours or a day or two or even a week under some circumstances would create such an inference, particularly if the property was concealed. Where any considerable length of time has elapsed there must be some showing between the time of the larceny or burglary and the time the defendant is discovered in possession of...