Evans v. State

• Decision Date: 05 March 1984
• Docket Number: No. 4-183A5--384S77,4-183A5--384S77
• Citation: 460 N.E.2d 500
• Parties: Kenneth D. EVANS, Ricky L. Thomas, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 500

460 N.E.2d 500

Kenneth D. EVANS, Ricky L. Thomas, Appellants, v. STATE of Indiana, Appellee.

No. 4-183A5--384S77.

Supreme Court of Indiana.

March 5, 1984.

John Wissner, Scales, Wissner & Krantz, Boonville, for appellants.

Linley E. Pearson, Atty. Gen. of Indiana, Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

CRIMINAL PETITION FOR TRANSFER

GIVAN, Chief Justice.

A jury convicted appellants Evans and Thomas for Theft, a class D felony, IC Sec. 35-43-4-2 [Burns Supp.1983]. Evans was sentenced to two (2) years executed, and Thomas to two (2) years with four (4) months executed. The Court of Appeals reversed appellants' convictions after finding the jury verdict was unsupported by the evidence. The State's Petition for Transfer is granted. The opinion of the Court of Appeals reported at 455 N.E.2d 1157 is vacated.

The facts are these: On December 1, 1981, at approximately 9:30 P.M., John St. Clair, an employee of Peabody Coal Company (Peabody), drove the road grader he was operating to one of the fuel stations located on company property to fill the grader's fuel tanks. While approaching the station, he discovered a rust colored van parked next to the station's 10,000 gallon fuel tank.

He pulled up behind the van, stopped the grader and waited for a few moments until the van drove away. As the van moved away from the fuel tank, the tank's service hose fell to the ground. St. Clair could not say if the hose had fallen from the tank or the van. He said he had followed the van a short distance in his grader, along one of the mine's roads, when the van came to a halt. One of the occupants exited from the passenger's side of the vehicle. St. Clair then backed his grader away from the van.

Another Peabody employee, Larry Randberger, came along and St. Clair told him what he had observed. As he was talking with Randberger, the van drove back toward them and then drove away. Randberger radioed St. Clair's report to his supervisor, James Irwin, who was informed of the description of the van and the general direction in which it was travelling. Irwin waited on a county road for the van to pass his location as it exited the mine property. When the van went by, he followed it into Lynnville, Indiana, in his company truck. Irwin radioed his main office to have them contact the police for him. Irwin followed the van to a residence in Lynnville and pulled his truck about one half block down Main Street to take up an inconspicuous vantage point from which he could observe the van. Irwin testified that he had seen two occupants in the vehicle as it first passed him on the county road. As he was observing the van at the Lynnville residence, he saw two people emerge from the vehicle.

When police arrived in Lynnville, they met Irwin on Main Street at which time he told them of the van's location. Police then went to Evans' residence where they saw Evans and Thomas pouring fuel oil from a fifty-five (55) gallon drum into a hose that led into the house. As the police arrived Evans and Thomas set the drum down. One of appellants started to enter the house, and the other headed toward the rear of the house. Officers ordered them to halt and read each of them their Miranda warnings.

After being advised of their rights, appellants were questioned by police at the scene. Upon being asked where he had obtained the fuel oil, Evans told one officer that he had purchased it at Heck's Texaco in Boonville from an older man with a limp. At trial, this statement was admitted over appellants' objection. The State's witness, David Smith, testified that on December 1, 1981, he was the only employee working at Heck's Texaco who walked with a limp. He also stated he did not remember selling any fuel oil that evening to anyone, including appellants, and that he did not sell any fuel oil to anyone who took it from the station in a fifty-five (55) gallon drum.

While being questioned in the driveway of the Evans residence, Thomas made a statement to the effect that he had just arrived at the house shortly before the police. Police noted that the hood of Thomas's car was cold to the touch and judged the car had been parked in the driveway for some period of time greater than what Thomas claimed. Thomas's statement was also admitted over appellants' objection.

Appellants assert the trial court erred by admitting into evidence Evans' statement concerning his source of the fuel oil prior to the State's establishing the corpus delicti by clear proof independent of the statement.

The rule is that although "[i]t is desirable to first establish the corpus delicti before showing a confession or statement against interest by the defendant, ... such is not necessary; the matter of order of proof is within the sound discretion of the trial court." Sluss v. State, (1982) Ind.App., 436 N.E.2d 907, 910; Cambron v. State, (1975) 262 Ind. 660, 322 N.E.2d 712; Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798. Circumstantial evidence alone may establish the corpus delicti. Perkins v. State, (1979) 181 Ind.App. 461, 392 N.E.2d 490; Dunbar v. State, (1961) 242 Ind. 161, 177 N.E.2d 452. The corpus delicti need not be proven beyond a reasonable doubt. Jackson v. State, (1970) 255 Ind. 289, 263 N.E.2d 649.

Therefore, if the totality of the evidence presented at trial establishes the crime charged in...