Gaddie v. State

• Decision Date: 07 February 1980
• Docket Number: No. 2-278A41,2-278A41
• Citation: 400 N.E.2d 788
• Parties: Robert Allen GADDIE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 788

400 N.E.2d 788

Robert Allen GADDIE, Appellant, v. STATE of Indiana, Appellee.

No. 2-278A41.

Court of Appeals of Indiana, Second District.

Feb. 7, 1980.

Noble R. Pearcy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Robert Gaddie appeals from his theft conviction following trial by jury. I.C. 35-17-5-3(1)(a) (Burns Code Ed. 1975). ¹ His only contention on appeal is that the evidence was insufficient to support the verdict.

The record reveals the following: George Darnell, after getting off work on the evening of June 9, 1977, discovered his 1971 Mercury Marquis stolen. At approximately 3:00 P.M. the next afternoon, Darnell's automobile was found by police in the 2800 block of Priscilla Street, in Marion County. The automobile was in a stripped condition without tires or wheels. The trunk was broken open, the door panels were ripped out, and a stereo radio was missing. While investigating the stripped 1971 Mercury, Officer John Readle observed a 1966 black Oldsmobile station wagon parked approximately forty or fifty feet away. Two men, identified at trial by Readle as Gaddie and Marshall Williams, were in the station wagon engaged in activity described by Readle as "either exercising themselves by getting in and out of the vehicle at irregular intervals or . . . working on the vehicle."

Readle had the Mercury towed to the Interstate Wrecking Company, where Darnell identified the automobile. Readle returned to the location where the Mercury had been found and observed the black station wagon still parked. Readle continued to patrol the neighborhood and, upon passing the location for the third time, noticed that the station wagon was gone. Readle thereafter discovered the station wagon being driven about 5:00 P.M. in the 2800 block of Forest Manor Avenue. Determining by police communication that the license plate was not registered to that vehicle, Readle stopped the station wagon. During his investigation, Readle observed automobile tires mounted on wheels, radio gear, wires and speakers, and a stereo radio in the back of the station wagon. Gaddie, the owner of the vehicle, was driving and Marshall Williams was a passenger. Darnell was called to the scene whereupon he identified the stereo radio as the one originally in his 1971 Mercury.

Defendant's witness Marshall Williams, who was not charged in the present case, but who was serving a prison term on another conviction, testified that he phoned Gaddie on the day in question and asked to be picked up at the home of Gaddie's girlfriend. Williams stated that, upon Gaddie's arrival, he placed in Gaddie's car a stereo radio which Gaddie's girlfriend had asked Williams "to get rid of". Williams further testified that he placed no other items in the vehicle, nor were any other items in fact in the vehicle. Williams also denied ever seeing Darnell's 1971 Mercury, although he admitted being in the area at the time the stripped Mercury was discovered.

Gaddie took the stand and testified that Williams placed the stereo radio, as well as the automobile tires and radio gear, into the automobile. Gaddie denied any knowledge that the items were stolen.

Gaddie specifically contends that there is no evidence indicating that he knew the property found in his automobile was stolen. This assertion is premised on the erroneous assumption that he was charged, tried and convicted for receiving stolen property under I.C. 35-17-5-3(1)(f). ²

The information, however, charges Gaddie in language drawn from subsection (1) (a) of that statute, as follows:

"BE IT REMEMBERED, That, on this day before me, JAMES F. KELLEY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came WILLIAM W. WHITE who, being duly sworn, upon his oath says that ROBERT ALLEN GADDIE on or about the 10th day of JUNE, A.D. 1977, at and in the County of Marion in the State of Indiana, committed the crime of theft in that he knowingly, unlawfully, and feloniously exerted unauthorized control over property of GEORGE DARNELL to-wit: A Ford Motor Company Stereo Radio, of the value of TWO HUNDRED FIFTY DOLLARS AND NO CENTS ($250.00), intending to deprive GEORGE DARNELL of the use and benefit of said property . . . ."

The jury was instructed pursuant to subsection (1)(a), and it is apparent from the record that the State proceeded under the theory that Gaddie participated in the actual theft of the stolen property.

Gaddie cites Miller v. State (1968) 250 Ind. 338, 236 N.E.2d 173, and Wilson v. State (2d Dist.1973) 159 Ind.App. 130, 304 N.E.2d 824, for the proposition that knowledge of the stolen character of property may not be inferred from its possession alone. ³ In Miller v. State, supra, the defendant was charged under Ind.Ann.Stat. § 10-3030(1)(d) (Burns Code Ed.Supp.1967), the statutory forerunner of I.C. 35-17-5-3(1)(f). In Wilson v. State, supra, although the defendant was charged under subsection (1)(a) of the same statute, this court ignored the "technical" charge because it was determined that, in actuality, the State intended to prove a violation under subsection (1)(f). In Wilson, we thus applied the following rule set forth in Miller, which Gaddie contends is here applicable:

" . . . While it is true that the requisite knowledge that the goods are stolen may be proved or inferred from the circumstances surrounding the defendant's possession and use of the property in question, Dobson v. State (1960), 239 Ind. 673, 158 N.E.2d 455, it has long been the accepted law of this State that:

'The rule that the possession of stolen property, the proceeds of a larceny, soon after the commission of the offense, unless explained, is prima facie evidence of the guilt of the person in whose possession the property is found, does not apply to the offense of receiving stolen property.' Bowers v. State (1924) 196 Ind. 4, 146 N.E. 818 (citations omitted).

Therefore, since the possession of the goods, by itself, does not provide sufficient evidence that appellant had knowledge that the goods in question were stolen, we must determine from all the evidence, in compliance with Wertheimer and Goldberg v. State, supra, (201 Ind. 572, 169 N.E. 40,) whether there is substantial evidence of probative value from which the jury could have concluded or inferred beyond a reasonable doubt that every reasonable hypothesis of innocence in regard to such knowledge on the part of the appellant was excluded." 304 N.E.2d at 826. (Footnote omitted.)

See also Pierce v. State (2d Dist.1974) 161 Ind.App. 217, 315 N.E.2d 376; Griffin v. State (3d Dist.1978) Ind.App., 372 N.E.2d 497.

When, in contrast, the defendant is tried for the larceny type of theft, as embodied within subsection (1)(a), the rule concerning the effect of possession of recently stolen property was stated in Freeling v. State (2d Dist.1975) 167 Ind.App. 535, 338 N.E.2d 644, 647, quoting from Durrett v. State (1967) 249 Ind. 12, 14-15, 230 N.E.2d 595, 596 as follows:

' " 'Exclusive possession of property shown to have been stolen, shortly after the larceny, unquestionably is a circumstance to be considered by the jury, and if the proof is made that such larceny was recently committed and there is no evidence to explain the possession of the defendants, a larceny conviction based on such evidence will be sustained on appeal.' Mims et al. v. State (1957) 236 Ind. 439, 444, 140 N.E.2d 878, 880; Gilley et al. v. State (1949) 227 Ind. 701, 88 N.E.2d 759.

Some argument is made in the brief that the defendant has no burden of proof in a criminal case. We have here no such question before us. In every successful criminal prosecution there usually comes a time when the State establishes a prima facie case, giving consideration to all legitimate and reasonable inferences that may be drawn from the facts presented, which proves beyond a reasonable doubt that the defendant is guilty. At that point, unless the defendant sees fit to come forward with proof to rebut the prima facie case and convince the jury he is innocent, the jury, from the evidence presented to it, may convict the defendant. It appears to us that was the circumstance here. The State presented such a case. It thereby sustained the burden of proof. The defendant failed to offer any explanation that convinced the jury." '

Thus, in terms of what inference may be drawn from the possession of stolen property, our Supreme Court has apparently established and adhered to a distinction between violations specifically defined under I.C. 35-17-5-3(1)(a) (formerly simple theft or larceny) and those specifically defined under I.C. 35-17-5-3(1)(f) (formerly receiving stolen property). See, e. g., Ward v. State (1973) 260 Ind. 217, 294 N.E.2d 796; Miller v. State, supra, 236 N.E.2d 173.

We note, however, that the acceptance and application of this distinction has been less than uniform. The use of the common law inference has been criticized even in its application to larceny and burglary. See the dissents in Gann v. State (1971) 256 Ind. 429, 269 N.E.2d 381; Vaughn v. State (1971) 255 Ind. 678, 266 N.E.2d 219; and Bolton v. State (1970) 254 Ind. 648, 261 N.E.2d 841. ⁴ Furthermore, in Wilson v. State, supra, 304 N.E.2d 824, this court apparently impliedly rejected the applicability of the common law inference to either larceny or receiving stolen property. Although the defendant in Wilson, who was charged under subsection (1)(a), was found in possession of recently stolen property, we reversed, stating that "the State . . . proved neither a crime under (a) or (f), the element of scienter, common to both, having never been proven." 304 N.E.2d at 826, n.1. ⁵

At the other extreme of the spectrum, however, this Court has not always recognized a distinction. In Ruhl and Young v. State (3d Dist.1974) 162 Ind.App. 280, 319 N.E.2d 347, the Third District applied the inference from possession of recently...