Doyle v. State
| Citation | 468 N.E.2d 528 |
| Decision Date | 11 September 1984 |
| Docket Number | No. 4-782A233,4-782A233 |
| Parties | Thomas E. DOYLE, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Court of Appeals of Indiana |
Gerald R. Thom, Jasper, for appellant.
Linley E. Pearson, Atty. Gen., Indianapolis, for appellee.
After a trial by jury, Thomas E. Doyle, Jr. was convicted of fifteen counts of theft including five counts under each of three statutory definitions of theft: Ind.Code 35-17-5-3(1)(a), -3(1)(b), and -4 (1976). He appeals.
The pertinent facts are as follows. In 1965, five citizens of Daviess County formed the North Daviess Community School Building Corporation (hereafter the holding corporation) for the purpose of issuing tax free bonds to finance the construction of a new school for the North Daviess Community School Corporation (the school corporation). These five each purchased 200 shares of stock at the time of incorporation. The holding corporation then executed a trust indenture with the State Bank of Washington (hereafter the trustee). Pursuant to this indenture, the trustee received the proceeds of bonds issued by the holding corporation and used the money to build the proposed school. The new school was then leased to the school corporation, which paid rent to the trustee. Under the indenture, these rents were deposited into a sinking fund, from which the bond holders were to be repaid.
The defendant, Thomas Doyle, did accounting work for the holding corporation during construction of the new school. In September of 1974, after the building was finished, Doyle approached the five shareholders with a proposition. Because the trustee was administering the bond and rental funds, the holding corporation was virtually dormant at this time. Doyle told the shareholders that it would be easier for him to file the required tax forms and annual reports if he controlled all of the corporation's stock. Thus, he proposed to buy each shareholder's stock, giving each of them in exchange an interest free note for $200--the amount they invested--payable in twenty years. Doyle advised them that this method of payment would entitle them to deduct a loss of $175 on their current income taxes.
The shareholders agreed and endorsed their shares over to Doyle. In return, each was given a note for $200. Although the maker of these notes was the holding corporation, the shareholders understood that Doyle himself was purchasing their shares. Doyle assured them he would put $1000 into the corporation to cover these notes when they came due.
Several months later, in the spring of 1975, Doyle amended the holding company's articles of incorporation to list him as the corporation's sole shareholder and director, and its president. He also changed the corporation's name to ISHCO, Inc. In May 1975, Doyle wrote the trustee and requested that all excess funds in the sinking fund beyond those needed to pay principal and interest to bondholders be turned over to him as president of ISHCO. This request was based on a provision in the indenture entitling the holding corporation to possession of all such excess funds. On advice of counsel, the trustee transferred $57,257.78 in excess funds to ISHCO in June 1975. In July 1976, the trustee gave ISHCO an additional $1,473.83. Doyle deposited these funds in ISHCO's checking account at Peoples Bank in Washington.
On June 12, 1975, Doyle drafted and signed the following contract between ISHCO and Thomas E. Doyle, CPA, Inc., an accounting corporation owned solely by Doyle:
Contract for services dated this 12th day of June, 1975 between ISHCO, Inc., buyer, and Thomas E. Doyle, CPA, Inc., Seller.
Whereas, Seller has incurred substantial expense in acquiring said data; and
Whereas, Seller is the only known source of said information.
It is hereby agreed:
That, Thomas E. Doyle, CPA, Inc. will provide to ISHCO, Inc. all such data that has been acquired and will be acquired; and
That, Seller will continue seeking additional data from every available source; and
That, Seller will provide all accounting and bookkeeping services for buyer beginning Jan. 1, 1975 and ending on December 31, 2000; and
That, Buyer will pay to Seller at the rate of $2,000.00 per year for said services; and
That, Buyer will pay to seller an additional fee of fifty per cent of all income received from the use of said data; and
That, Buyer will pay to Seller a minimum fee of $30,000.00 for said data; and
That, Seller may at any time after delivery of said data to buy [sic] request and be paid advance of not more than $50,000.00; and
That, said fees are to be reduced by the amount of any fees; and
That, Seller hereby acknowledges receipt and possession of said data.
Thereafter, ISHCO issued five checks to Thomas E. Doyle, CPA, Inc. as follows:
June 17, 1975 - $20,000.00
July 2, 1975 - $20,000.00
July 29, 1975 - $17,000.00
September 22, 1975 - 500.00
July 2, 1976 - 1,400.00
Doyle was subsequently charged with fifteen counts of theft in indictments treating each of these five transfers as a violation of three distinct theft statutes, as noted above. The jury found Doyle guilty on all fifteen counts, and the court entered judgment accordingly.
Doyle now appeals, raising seven issues:
1. Whether there was sufficient evidence to support Doyle's convictions;
2. Whether Doyle was entitled to a mistrial because the prosecution was not conducted by the prosecutor of Dubois County, to which the case was venued;
3. Whether the trial court erred in denying Doyle's motion for a mistrial based on prejudicial publicity, without polling the jury;
4. Whether the trial court erred in admitting multiple photocopies of two State exhibits 5. Whether the trial court erred in denying Doyle's motion for a mistrial based on prosecutorial misconduct;
6. Whether the trial court erred in giving several instructions tendered by the State; and
7. Whether the trial court erred in refusing to give several instructions tendered by Doyle.
Doyle first contends there was insufficient evidence to support his convictions under the three statutory provisions he allegedly violated. In reviewing the sufficiency of the evidence we neither weigh the evidence nor judge credibility. We consider only the evidence most favorable to the State, and we will affirm if there is substantial evidence on each element upon which the jury might reasonably find the defendant guilty beyond a reasonable doubt. Williams v. State, (1982) Ind., 433 N.E.2d 769; Harris v. State, (1981) Ind., 425 N.E.2d 112. With this standard in mind, we will separately analyze the three different statutory provisions under which Doyle was convicted.
Counts one through five against Doyle were based on Ind.Code 35-17-5-3(1)(a) and -3(2)(a) (1976), which read as follows:
A person commits theft when he (1) knowingly:
(a) obtains or exerts unauthorized control over property of the owner ... and
(2) either:
(a) intends to deprive the owner of the use or benefit of the property ...
Doyle does not dispute that he exerted control over funds that were the property of ISHCO, Inc. Rather, he contends there was no evidence this control was "unauthorized."
The statute under which Doyle was convicted and the cases applying it do not define the term "unauthorized." Our present theft statute, however, provides in relevant part that control over another person's property is "unauthorized" if it is exerted:
(1) without the other person's consent;
(2) in a manner or to an extent other than that to which the other person has consented;
* * *
(4) by creating or confirming a false impression in the other person;
(5) by failing to correct a false impression that the person knows is influencing the other person, if the person stands in a relationship of special trust to the other person; [or]
(6) by promising performance that the person knows will not be performed ...
Ind.Code 35-43-4-1(b) (1982). The Indiana Criminal Law Study Commission comments accompanying this section say this definition of unauthorized control was meant to cover all the acts constituting theft under Ind.Code 35-17-5-3 (1976), the section at issue here. Thus, we do not believe the term "unauthorized control" in Ind.Code 35-17-5-3 should be construed to penalize acts not described in the new statutory definition.
Under this new definition, Doyle clearly did not exert unauthorized control over ISHCO's property. First, there was no evidence that he transferred the disputed funds without ISHCO's consent or in a manner other than that to which ISHCO had consented. Rather, as the sole shareholder, officer, and director of ISHCO, Doyle clearly consented to the transfer. Nor was there any evidence that Doyle accomplished the transfer of ISHCO funds to his accounting corporation by creating, confirming, or failing to correct a false impression in ISHCO. Further, there was no showing Doyle received ISHCO funds by promising performance he knew would not be performed.
The crux of the State's argument is that, by transferring ISHCO funds to his accounting firm, Doyle violated a fiduciary duty and certain restrictions placed on ISHCO by statute and by its articles of incorporation. Such acts, however, do not constitute an exercise of "unauthorized control" as our legislature has defined it. Bound as we are to construe criminal statutes strictly against the State, Pennington v. State, (1981) Ind., 426 N.E.2d 408, we find that there was insufficient evidence to support a finding that Doyle exerted unauthorized control over ISHCO's property.
Counts six through ten against Doyle were based on Ind.Code 35-17-5-4(1) (1976), which provides as follows:
A person who obtains property upon agreement, or subject to a known legal...
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