Hossman v. State

• Decision Date: 18 September 1985
• Docket Number: No. 1-1184A271,1-1184A271
• Citation: 482 N.E.2d 1150
• Parties: Howard J. HOSSMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1150

482 N.E.2d 1150

Howard J. HOSSMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-1184A271.

Court of Appeals of Indiana,

First District.

Sept. 18, 1985.

Larry A. Landis, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

STATEMENT OF THE CASE

RATLIFF, Presiding Judge.

Appellant Howard J. Hossman appeals from a jury verdict, in the Wayne Superior Court, finding him guilty of burglary and conspiracy, both class C felonies. We affirm.

FACTS

Howard J. Hossman (Hossman) was originally tried in February of 1983, in the Wayne Superior Court, No. 2 for burglary, conspiracy, and receiving stolen property. The underlying factual basis was the same for all three charges. A jury found Hossman guilty of receiving stolen property, a class D felony under Indiana Code section 35-43-4-2(b). However, the jury was unable to reach a verdict on the burglary and conspiracy charges and so a mistrial was declared on those issues.

The underlying facts, found at Hossman's retrial for burglary and conspiracy, show that Hossman asked Gary Crumpton and Danny Slinker to break into the dwelling of Ruth Kercheval to steal some drinking glasses. ¹ Slinker and Crumpton testified that they broke into the house on or The jury, at the retrial, found Hossman guilty of burglary and conspiracy, both class C felonies. The court sentenced Hossman to five years of imprisonment on each charge, to be served concurrently. These sentences were also to be served concurrently with the two year sentence Hossman received for his conviction for receiving stolen property. However, Hossman's conviction for receiving stolen property was subsequently reversed on appeal. Appellant then perfected this appeal. Further facts will be developed below.

about October 23, 1981, and stole certain items. This testimony was corroborated by Belinda Goodwin who testified that she and her sister picked up the two men, who were carrying a box with the items taken from Kercheval's house, after the break in. The four of them proceeded to a location near Hossman's parents' house. Slinker and Crumpton left the car and were gone for about one half hour. Slinker and Crumpton testified that during this time they went into Hossman's parents' house and sold the stolen goods to Hossman for $70--$80.

ISSUES

1. Did the retrial and conviction for burglary and conspiracy, after a conviction for receiving stolen property, violate the provisions of the double jeopardy clause?

2. Did the trial court err in excluding evidence relating to the alleged prejudice and bias of a State witness?

3. Did the trial court err in admitting evidence showing past acts of the appellant?

DISCUSSION AND DECISION

Issue One

The Fifth Amendment Double Jeopardy Clause, applicable to the states through the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S.C.A. Const. Amend. 5 (1972); Brown v. Ohio (1977), 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 193; Elmore v. State (1978), 269 Ind. 532, 533, 382 N.E.2d 893, 894. The Clause serves principally as a restraint on courts and prosecutors and has been held to embody three prohibitions: (1) a rule barring reprosecution for the same offense after acquittal; (2) a rule prohibiting reprosecution for the same offense after conviction, and; (3) a rule prohibiting multiple punishment for the same offense. Brown, 432 U.S. at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 194; Elmore, 269 Ind. at 534, 382 N.E.2d at 894; Martakis v. State (1983), Ind.App., 450 N.E.2d 128, 129-30, trans. denied. The focus of any inquiry in this type of situation is not whether the offenses to be prosecuted or punished arise from the same factual setting, but rather whether the offenses are the same for purposes of double jeopardy. ² Elmore, 269 Ind. at 534, 382 N.E.2d at 895, 897.

The United States Supreme Court, in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, devised a test for determining whether offenses are the same under the Double Jeopardy Clause: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The test emphasizes the elements of the offenses and so "[i]f each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes...." Iannelli v. United States (1975), 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616. As noted, Indiana has employed the Blockburger test to determine that double jeopardy does not result from offenses arising from the same act unless the offenses are the same. Elmore, 269 Ind. at 537, 382 N.E.2d at 897. Thus, the Blockburger test is the applicable standard for determining whether Hossman was exposed to double jeopardy.

While stemming from the same factual circumstances, Hossman's trial and convictions for conspiracy and burglary, following his conviction for receiving stolen property, satisfy the Blockburger test. Indiana Code section 35-43-4-2 (Burns 1985) states that "[a] person who knowingly or intentionally receives, retains, or dispenses of the property of another person that has been the subject of theft commits receiving stolen property, a class D felony." The conspiracy statute, Indiana Code section 35-41-5-2 (Burns 1985), provides in pertinent part that:

"(a) A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same class as the underlying felony....

(b) The state must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement."

Finally, Indiana Code section 35-43-2-1 (Burns 1985) provides that "[a] person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a class C felony." While some of the facts overlap, each of these three crimes require proof of facts that the others do not. To be convicted of receiving stolen property it must be shown that a person received, retained, or disposed of property that has been the subject of a theft. A conviction for burglary requires proof that a person broke into and entered the building of another with intent to commit a felony therein. Conspiracy, to be proven, requires facts demonstrating an agreement with another and performance of an overt act in furtherance of that agreement. Therefore, while the three offenses arise from the same underlying circumstances, the factual elements required to prove each one differ. Consequently, the theft of the glasses resulted in three separate offenses for which the jury could find Hossman guilty. Therefore, Hossman's trial and convictions for conspiracy and burglary, following his conviction for receiving stolen property, do not appear to amount to double jeopardy.

However, Hossman extends his double jeopardy argument by asserting the charging informations were worded so as to make theft an included and lesser offense of conspiracy and burglary respectively. ³ Hossman correctly points out that a court must look at the manner in which an offense is charged, not merely at its statutory definition, in applying the Blockburger test. Tawney v. State (1982), Ind., 439 N.E.2d 582, 588. In addition, the United States Supreme Court has found that the Fifth Amendment Double Jeopardy Clause forbids successive prosecution and cumulative punishment for greater and lesser included offenses. Brown, 432 U.S. at 169, 97 S.Ct. at 2227, 53 L.Ed.2d at 195. Consequently, Hossman argues the Double Jeopardy Clause was violated because the charging information made theft an included offense of burglary and conspiracy and he had already been tried and convicted of theft.

Hossman's assertion that he was exposed to double jeopardy on his retrial for conspiracy due to the wording of the information is incorrect. The conspiracy charge was based on the underlying act of breaking and entering the Kercheval house with intent to commit a felony (burglary) pursuant to an agreement to do so. Hence, the overt act in furtherance of the conspiracy was the breaking and entering by Slinker and Crumpton. The charging information, therefore, did not make theft an included offense of conspiracy. Moreover, Hossman's prior conviction under the theft statute, Ind.Code Sec. 35-43-4-2(b) was for receiving stolen property not for stealing it himself. Thus, there was no Double Jeopardy problem regarding the wording of the conspiracy information.

In addition, it is a recognized principle that conspiracy is a separate crime posing distinct dangers apart from those of the underlying substantive offense. Iannelli, 420 U.S. at 777-78, 95 S.Ct. at 1289, 43 L.Ed.2d at 622; Elmore, 269 Ind. at 542, 382 N.E.2d at 898. A person may be convicted of both the substantive act and conspiracy to commit the act. Separate sentences are therefore usually imposed for the conspiracy and the subsequent completion of the act. Id., 420 U.S. at 777-78, 95 S.Ct. at 1289, 43 L.Ed.2d at 622; Huff v. State (1983), Ind.App., 443 N.E.2d 1234, 1239. Furthermore, acquittal of the substantive offense does not preclude a conviction of conspiracy to commit the offense. ⁴ Id.; Hopper v. State (1985), Ind., 475 N.E.2d 20, 24; Huff, at 1238; Weekley v. State (1981), Ind.App., 415 N.E.2d 152, 156. Under these principles, the Supreme Court of Indiana has held theft and conspiracy to commit theft are separate offenses. Elmore, 269 Ind. at 541, 382 N.E.2d at 898. These...