Dunkle v. State

• Decision Date: 31 August 1981
• Docket Number: No. 1-281A57,1-281A57
• Citation: 425 N.E.2d 185
• Parties: Roy E. DUNKLE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 185

425 N.E.2d 185

Roy E. DUNKLE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-281A57.

Court of Appeals of Indiana, First District.

Aug. 31, 1981.

Linda Stemmer, McCoy & Husmann, Union City, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Judge.

Roy E. Dunkle appeals his conviction for assisting a criminal, a Class A misdemeanor, for which he received a six month sentence and a $200 fine. We affirm.

The facts favorable to the State reveal that on September 16, 1979, at approximately 10:45 P.M., William York informed the Randolph County Sheriff's Department that he had heard a truck with a loud muffler in his barn lot and that after investigating, he found at least one of his hogs was missing. York reported that a black and white spotted mixed breed hog was missing. At approximately 12:10 A.M., on September 17, 1979, a Deputy Sheriff observed a brown truck with a loud muffler and stopped it to investigate. The officer found two freshly slaughtered pigs in the truck and one was a black and white mixed breed. The officer questioned the driver and the passenger of the truck, Nelson Dilk and his wife, Linda. They stated that they got the hogs from the defendant, Roy Dunkle, who lived on Randolph County Road 950 South. The Deputy notified William York, who had discovered an additional hog was missing. York came to the scene and identified both hogs. He informed the Deputy that the black and white hog was pregnant. The hogs had been gutted. The Deputy arrested the Dilks and on the basis of the facts presented thus far obtained a search warrant for Roy Dunkle's residence.

The Deputy and other officers searched Dunkle's farm and found hog entrails buried there, including fetal pigs, and ears. The ears had originally been tagged for identification purposes by York. The officers arrested Dunkle and he was subsequently charged with theft and assisting a criminal.

At trial Dilk testified against Dunkle, essentially describing him as the instigator of the theft. Dunkle admitted cleaning the hogs for Dilk at approximately 11:30 P.M. on September 16, 1979, but contended he did not commit the theft and offered an alibi which placed him at a neighbor's home when the theft occurred. Dunkle explained that the Dilks brought the hogs to his farm after they had been killed. Based upon these facts, the jury concluded Dunkle was not guilty of theft, but was guilty of assisting a criminal.

Dunkle raises several issues for our review. He initially argues the trial court erred in denying him a change of venue because of pretrial publicity. In support of this argument, Dunkle presents three local newspaper accounts in which stories about Dilk's arrest appeared and in which Dilk presented his story blaming Dunkle. We do not think this coverage is sufficient to show the trial court abused its discretion by denying the change of venue. Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. We also note that based upon its verdict, the jury apparently did not believe Dilk's account of the crime and Dunkle was not prejudiced by the coverage.

Dunkle asserts the trial court erred in denying his motion to suppress evidence which attacked the search warrant. The basis for the motion, and his appellate argument, is that the search warrant was improper because the Deputy's affidavit requesting the warrant relied on Dilk's statement that he got the hogs from Dunkle. Dunkle argues that probable cause was lacking because there was nothing to show Dilk was a credible informant. We disagree. We, of course, recognize the criteria set forth in Aguilar v. Texas, (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Ind.Code 35-1-6-2, which essentially require that a judge who examines an affidavit for a search warrant must be able to independently determine the validity of hearsay information in the affidavit. We think the facts here support the determination that Dilk's statement was reliable enough to support issuance of a warrant. He was apprehended with the stolen property, shortly after it was stolen, and although Dilk's statement may have had a self serving motivation, it was reasonable to conclude, under the circumstances, that the hogs had been gutted at Dunkle's farm.

Next, Dunkle argues the court erred in denying his motion in limine, which sought to exclude a prior uncounseled misdemeanor conviction from being used for impeachment purposes. Dunkle testified about his prior conviction on direct examination. The denial of a motion in limine is not reversible error in itself and a party must raise an objection at the time the questionable evidence is introduced at trial to preserve the issue. Stubblefield v. State, (1979) Ind., 386 N.E.2d 665. Since there was no objection, but to the contrary Dunkle's own introduction of the evidence, there was no error.

Dunkle also argues the trial court erred by refusing to recall Dilk so that he could be impeached by evidence of a prior arrest. The arrest was discovered by the defendant after Dilk testified that he had not previously been arrested. The arrest did not result in a conviction admissible under Ashton v. State, (1972) 258 Ind. 51, 279 N.E.2d 210. Prior arrests which do not result in convictions are not admissible for impeachment purposes. Bryant v. State, (1973) 261 Ind. 172, 301 N.E.2d 179. We are aware that there is some flexibility in this rule and that if a defendant raises such matters on direct examination, it is not error for the prosecution to raise the issues on cross-examination. Wright v. State, (1975) 163 Ind.App. 502, 324 N.E.2d 835. However, this does not lead us to the conclusion that reversible error occurred in this case. Given the general prohibition on using prior arrests for impeachment purposes and the fact that Dilk's credibility was impeached by evidence of his arrest and guilty plea for theft of the hogs, we do not think the trial court erred in refusing to allow Dunkle to question Dilk about the prior arrest. Additionally, it is apparent from the jury's verdict that they had grave doubts about Dilk's credibility so Dunkle was not prejudiced by the exclusion.

Dunkle argues the trial court erred in two instances by refusing to give his tendered instructions. The defendant's tendered instructions numbered 1, 2, 5, and 8 all dealt with the standard of proof necessary for a criminal conviction and explained the concept of "reasonable doubt". The trial judge refused these instructions, but gave other instructions which explained the presumption of innocence given to a defendant, the standard of proof, and the concept of reasonable doubt. Because the issues raised by Dunkle's tendered instructions were adequately covered by the instructions given, there was no error. Gilmore v. State, (1981) Ind., 415 N.E.2d 70.

This reasoning also applies to Dunkle's assertion that the trial court erred in refusing to give his instruction number 5, pertaining to Dilk's testimony. Dunkle's instruction placed great emphasis on the fact Dilk was testifying to obtain favorable treatment on charges against him. The instruction which the trial court gave properly explained that an accomplice is competent to testify and that his testimony is to be weighed on the same basis as any other witness. This instruction adequately covered the issue of an accomplice's testimony. Indeed, if the trial court had given Dunkle's instruction, it would have improperly disparaged Dilk's testimony. Cox v. State, (1981) Ind., 419 N.E.2d 1279.

Finally, Dunkle argues the trial court erred in considering his prior uncounseled conviction for theft and his driving record as part of his presentence report. Pursuant to Ind.Code 35-4.1-4-10, we find no error in the inclusion of this information. These matters are properly a part of the history of Dunkle's criminality. Additionally, the probation officer is given wide discretion to include matters which he deems relevant in the report. Lottie v. State, (1980) Ind., 406 N.E.2d 632.

Finding no error, the judgment of the court below is affirmed.

NEAL, P. J., concurs.

RATLIFF, J., dissents by opinion.

RATLIFF, Judge, dissenting.

I respectfully dissent from the majority opinion insofar as it holds the affidavit for a search warrant in this case to be sufficient.

The issuance of a search warrant must be done in strict compliance with the constitutional and statutory law pertaining thereto. Layman v. State, (1980) Ind.App., 407 N.E.2d 259, trans. denied; Rohlfing v. State, (1949) 227 Ind. 619, 88 N.E.2d 148. Article I, § 11 of the Indiana Constitution, which is based upon the fourth amendment of the Constitution of the United States, ¹ reads as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

Relevant Indiana statutory law pertaining to issuance of search warrants provides:

"(a) Except as provided in subsection (c) of this section, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit, particularly describing the house or place to be searched and the things to be searched for, or particularly describing the person to be arrested, and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed said offense, and setting forth the facts then in knowledge of the affiant or information based on credible hearsay, constituting the probable cause. When based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source...