Decker v. State

• Decision Date: 26 September 1988
• Docket Number: No. 79S00-8605-CR-00458,79S00-8605-CR-00458
• Citation: 528 N.E.2d 1119
• Parties: Everett Leon DECKER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1119

528 N.E.2d 1119

Everett Leon DECKER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 79S00-8605-CR-00458.

Supreme Court of Indiana.

Sept. 26, 1988.

Susan K. Carpenter, Public Defender, Teresa D. Harper, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Everett Leon Decker was charged with one count of Burglary, a Class C felony, and one count of Theft, a Class D felony. He was tried by a jury and found guilty on the theft charge only. He was sentenced to two (2) years, and this sentence was enhanced by an additional thirty (30) years for an habitual offender finding. Decker raises the following issues on direct appeal:

1. trial court error in refusing his tendered instructions 8 and 9;

2. denial of his Motion for Discharge pursuant to Criminal Rule 4(C);

3. denial of his Motion to Suppress;

4. error in sentencing;

5. error in giving State's final instruction 3;

6. error in allowing a State's witness to testify as an expert and give opinion evidence of fingerprint identification; and

7. sufficiency of the evidence.

The facts most favorable to the verdict show that on October 20, 1984 a horticulture barn on the Purdue University campus was broken into and entered. A chain saw, Weedeater, and gas cans, all University property, were taken. Investigating officers observed a black Cadillac, which had its lights extinguished, quickly leaving the area. The officers stopped the vehicle and arrested Stephen Planchon and Kenny Smith.

Earlier in the evening, Decker had taken Smith to Horticulture Park and dropped him off near a row of hedges. Decker left and returned some time later. Smith was waiting, and asked Decker for the keys to his trunk. Decker heard Smith putting what sounded like gasoline cans into the trunk. Next they drove to a Mr. Huff's house and Smith sold the Weedeater and chain saw to Huff. Decker was present during this transaction. Afterwards Planchon, who also was present during the sale Smith, and Decker went to a bar. Apparently during this time Planchon and Smith discussed how they could obtain more machinery. Decker refused to carry any machinery in his trunk, but did agree to show the men where Horticulture Park was located. He did so, but he realized the police were nearby, and left quickly. He warned Planchon and Smith to "get out of here." Smith and Planchon were then arrested.

At approximately 7:00 a.m. the next morning, four police officers arrived at Decker's residence. The officers requested Decker speak with them outside, and informed him of their investigation. They told Decker Smith had been arrested and had stated he was with Decker the night before, and that they were attempting to verify Smith's alibi. They did not advise him of his Miranda rights or arrest him. Decker told the officers where he was with Smith, and upon request, retrieved his car keys from his home and opened the trunk of the car. Two gasoline cans were found. Again at the officers' request, Decker went to the police station at 8:30 a.m. There he waived his Miranda rights, made a statement, and was arrested for burglary and theft.

I

The first issue Decker raises on appeal is trial court error in refusing his final instructions 8 and 9 which defined criminal conversion as a lesser included offense of theft.

In determining the propriety of instructing the jury on a lesser included offense, a trial court employs a two-part test. The first part requires an examination of the statutes defining the greater and lesser offenses, together with the factual allegations in the charging information. The court then determines whether the lesser offense is "factually" included in the charging information, and alleges the commission of the greater or "inherently" included offense in the greater offense. The second part requires the court to determine whether, assuming an offense was committed, the evidence would, prima facie, warrant a conviction for a lesser included offense, or could only warrant a conviction for the principal charge, in which case the lesser included offense instruction should not be given. Henning v. State (1985), Ind., 477 N.E.2d 547, 550; Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208, 212-213; Roddy v. State (1979), 182 Ind.App. 156, 394 N.E.2d 1098.

In this case, according to the wording of the charging information, the crime of conversion could be included within the elements of theft. See Maisonet v. State (1983), Ind., 448 N.E.2d 1052. The distinguishing factor between theft and conversion is the intent to deprive the true owner of the use or value of the stolen goods. Decker claims the State did not prove he had the requisite intent because there was no evidence of prior complicity on his part, any knowledge of what items Smith placed in the trunk or their origin, and he did not stand to gain from stealing the items. He also relies on the fact he was acquitted of the burglary charge.

These arguments do not support Decker's contention that the trial court was required to give the included offense instruction. If he was not a participant or was present without knowledge or intent that the crime of theft was being committed, then it would follow he was not guilty of theft or conversion. The question here is whether there was probative evidence which put into conflict the distinguishing factor between theft and conversion, that is, the intent to deprive the owner of the use or value of the stolen goods. In Swafford v. State (1981), Ind., 421 N.E.2d 596, it was expressed by this court:

If it is determined that the lesser offense is "included" within the greater crime charged, step 2 is triggered. It is designed to determine if the evidence warrants an instruction on the lesser and included offense. Generally, that determination hinges on whether a serious evidentiary dispute exists with respect to the element which distinguishes the greater and lesser offenses.

Id. at 603. See also Hester v. State (1974), 262 Ind. 284, 315 N.E.2d 351; Tucker v. State (1981), Ind.App., 419 N.E.2d 1355.

The trier of fact may infer participation in criminal acts from a defendant's failure to oppose a crime, companionship with one engaged therein, and a course of conduct before, during, and after the offense which tends to show complicity. While the State must sustain its burden of proof on each element of an offense charged, such elements may be established by circumstantial evidence and the logical inferences drawn therefrom. Harris v. State (1981), Ind., 425 N.E.2d 154, 156; Lisenko v. State (1976), 265 Ind. 488, 355 N.E.2d 841, 843. The evidence clearly showed here that Decker took Smith to Horticulture Park, dropped him off and returned a little later. He gave Smith his keys and allowed him to put something in the trunk of his car. He drove Smith around in order to find Huff and was present when Huff paid Smith for the Weedeater and chain saw. He was with Smith at a bar when Huff's check was cashed. He then led Planchon and Smith back to Horticulture Park and fled before police officers could catch up with him. He also warned Planchon and Smith to leave the area because police were on the scene. This evidence clearly indicates an intention to steal the University's property and to permanently deprive them of it. The fact that Decker only aided in these acts does not relieve him of full responsibility as an accomplice. There is no serious dispute of any probative value in the evidence concerning Decker's intent to permanently deprive the University of the use and value of its property. The trial court properly denied these instructions.

II

Decker next contends the trial court erred in denying his motion for discharge pursuant to Criminal Rule 4(C). That rule states:

(C) Defendant Discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Any defendant so held shall, on motion, be discharged ...

(F) Time Periods Extended. When a continuance is had on motion of the defendant, or delay in trial is caused by his act, any time limitation contained in this rule shall be extended by the amount of the resulting period of such delay caused thereby. However, if the defendant causes any such delay during the last thirty (30) days of any period of time set by operation of this rule, the State may petition the trial court for an extension of such period for an additional thirty (30) days.

The dates which are important in resolving this issue are as follows:

1. Decker's petition for recusal of the prosecutor and its pendency between November 18, 1983 and December 1983;

2. Decker's failure to object to the July 30, 1984 continuance of the trial date;

3. Decker's failure to appear for trial on October 1, 1984;

4. Decker's re-arrest and reappearance in court on July 3, 1985;

5. Decker's failure, on July 17, 1985, to object to a new trial date setting of September 3, 1985;

6. Decker's motion to quash jury panel on August 30, 1985, and the court's sua sponte continuance of trial without date; and

7. the trial date on October 21, 1985.

The one year time limit to bring Decker to trial began to run on October 27, 1983, when the charging information was filed. Both Decker and the State agree that thirty-one (31) days, the time period between Decker's...