Harwei, Inc. v. State, 2-283A64
| Decision Date | 23 January 1984 |
| Docket Number | No. 2-283A64,2-283A64 |
| Citation | 459 N.E.2d 52 |
| Parties | HARWEI, INC., d/b/a Precision Transmission and David Harris (Agent for Harwei, Inc.) and David Harris, Personally, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Michael J. Siegel, Indianapolis, for defendants-appellants.
Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
RATLIFF, Judge, writing by designation.
STATEMENT OF THE CASE
Harwei, Inc., doing business as Precision Transmission (Precision), and David Harris each were found guilty of two charges 1 of theft, a class D felony. 2 Precision was fined $2500 on each charge. 3 Harris was fined $1000 on each charge and sentenced to two (2) years on each charge, 4 said terms to run concurrently, with all but 90 days suspended. 5 Precision and Harris appeal. We affirm but remand for correction of the judgment.
FACTS
In early 1982, the Marion County prosecutor's office was conducting an operation known as "Transcam," relating to the activities of certain automobile transmission repair shops in the county. On March 31, 1982, one Becky Wilson, also known as Denice Dunn, an employee of the prosecutor's office, drove a 1979 Oldsmobile Cutlass automobile to Precision's shop at 2504 North Shadeland Avenue and informed Harris, who was president of Harwei, Inc., the corporation doing business at that location as Precision Transmission, that the car would go only about thirty miles per hour, seemed to be in the same gear all the time, and was using excessive amounts of gasoline. About three hours later, Harris informed her the clutches and some of the gears in the transmission were ruined and would have to be replaced. When she returned for the car on April 1, 1982, she received from Harris a work order showing the following charges which she paid:
replace value body and governor 101.00
remove and replace transmission 89.00
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Subtotal 190.00
Tax 4.04
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Total 194.04
On April 13, 1982, James Dailey, also known as James Day, an Indianapolis police detective, had a 1979 Oldsmobile Delta 88 automobile towed to the same Precision shop. Dailey told Harris the car had been extremely overheated and had almost welded or locked the torque convertor to the front of the pump. Harris told him the transmission was beyond repair and Dailey authorized the installation of a rebuilt transmission and convertor for which he was billed and paid $502.92.
Prior to these two vehicles being taken to the Precision shop, the transmissions on each were dissassembled, inspected, placed in good condition, and test driven to assure proper performance. This was done under the direction of a Purdue University professor of mechanical engineering. At the professor's direction, a defective governor gear was placed in the transmission of each car. Governor gears can be replaced easily without removal of the transmission. Otherwise, the transmissions were in perfect working order. Both Wilson and Dailey knew the true condition of the transmissions when the cars were taken to the Precision shop.
Harwei, Inc. (Precision) and Harris each were charged with two counts of theft by creating a false impression. The informations were drawn in the following language;
ISSUES
The following issues, which we have restated, are presented:
1. Did the trial court err in overruling defendants' motions to dismiss the informations?
2. Did the trial court err in overruling defendants' motions for judgment on the evidence at the close of the state's case?
3. Was the evidence sufficient to sustain the convictions?
DISCUSSION AND DECISION
Issue One
The informations here were drawn under the following provisions of the theft statute:
"A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a class D felony."
Indiana Code section 35-43-4-2(a).
"Under this chapter, a person's control over property of another person is 'unauthorized' if it is exerted:
....
(4) by creating or confirming a false impression in the other person...."
Indiana Code section 35-43-4-1(b)(4).
The elements of the crime charged in each of the informations here are (1) knowingly or intentionally (2) exerting unauthorized control (3) over property of another (4) by means of creating a false impression in that other person (5) with the intent to deprive the other person of any part of the use or value of the property thus obtained. If all these elements are charged, the informations are sufficient.
In reviewing charging instruments, we construe the language used in light of its common acceptance and understanding. Williams v. State, (1979) 271 Ind. 656, 395 N.E.2d 239; Carson v. State, (1979) 271 Ind. 203, 391 N.E.2d 600, affirmed on appeal after remand (1980) 403 N.E.2d 330. An information need only state the crime charged in the language of the statute or in words conveying a similar meaning. Carson. The accused has a right to require that the crime alleged against him be charged with sufficient certainty to enable him to anticipate the proof which would be adduced against him and to enable him to meet it. Bickel v. State, (1978) 176 Ind.App. 342, 375 N.E.2d 274. We believe the information here meets these requirements.
In our opinion, any reasonable defendant reading the informations here would know precisely what he was charged with, what the state's evidence would show, and be able to meet the charge. The informations clearly charge that defendants obtained money from Wilson and Dailey by creating a false impression that their transmissions needed the repairs stated when in fact they did not. While the informations here are not models of draftsmanship they nevertheless state the elements of the crime charged in unmistakable terms and do not, in any way, tend to mislead. The court did not err in overruling the motions to dismiss.
Issues Two and Three
The defendants (Harwei, Inc. and Harris) assert the trial court erred in overruling their motions for judgment on the evidence 6 at the conclusion of the state's case because there was a failure to prove or produce any evidence that either Becky Wilson or James Dailey had a false impression created in their minds by the defendants.
First, we note the defendants introduced evidence in their behalf following the overruling of their motions for judgment on the evidence (involuntary dismissal, see footnote 6). Such constitutes a waiver of any error in the overruling of the motion for judgment on the evidence at the close of the state's case. Peckinpaugh v. State, (1983) Ind., 447 N.E.2d 576; Harris v. State, (1981) Ind.App., 416 N.E.2d 902. However, because we interpret the arguments presented on this issue to include a challenge to the sufficiency of the evidence to support the convictions, and because we believe the judgments to be erroneous and in need of correction, we will address this issue.
In reviewing challenges to the sufficiency of the evidence, we neither weigh the evidence nor judge the credibility of witnesses. We look only to that evidence most favorable to the judgment, together with all reasonable inferences flowing therefrom and if there is substantial evidence of probative value supporting the judgment of conviction, it will not be disturbed. Smith v. State, (1983) Ind., 454 N.E.2d 412; Walker v. State,...
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