Howard v. State, 868S133
| Decision Date | 17 December 1970 |
| Docket Number | No. 868S133,868S133 |
| Citation | 255 Ind. 380,265 N.E.2d 31 |
| Parties | Grover Junior HOWARD, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William C. Erbecker, James Manahan, Erbecker & Manahan, Indianapolis, for appellant.
John J. Dillon, Atty. Gen. of Ind., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged by affidavit with the crime of theft as defined in Burns Ind.Stat., 1970 Supp., § 10-- 3030 et seq. The act specifically alleged in the indictment was the unlawful obtaining and exerting unauthorized control over a certain motor vehicle. The cause was submitted to the court without a jury, and the appellant was found guilty of the included offense of obtaining and exerting unauthorized control over a motor vehicle under circumstances not amounting to theft as described in Burns Ind.Stat., 1970 Supp., § 10--3036. Appellant was sentenced to the Indiana State Farm for a period of six months.
The record in this case discloses the following:
A blue 1955 Chevrolet two door sedan owned by Bobby G. Gregory was left parked in front of Gregory's house on the evening of October 14, 1967. At approximately 10:00 A.M. on October 15, 1967, Gregory discovered that his car had been taken by some unauthorized person. He immediately phoned the Indianapolis Police Department and was asked to come in and fill out a stolen car report, which he did. In the meantime during the same morning Ralph Leibrandt, a deputy with the Marion County Sheriff's Department, was dispatched to investigate a certain automobile. When he arrived at the scene, he discovered the appellant asleep behind the wheel of a blue 1955 Chevrolet two door sedan. The trunk was open and there were tools scattered around the vehicle. Upon examination of the car the deputy failed to find any Certificate of Registration. He did notice that the identification number plate was missing from the doorpost. This occurred approximately four hours prior to the time when Gregory reported his car stolen. However, Deputy Leibrandt placed the appellant under arrest for vehicle taking. Later that day Gregory was called to the Police Department where he identified the car in which the appellant had been found. Upon his identification the Police Department released the automobile to Gregory.
Appellant claims error in that there was no evidence connecting the object alleged stolen in the affidavit and the object found in the possession of the appellant and further that there was no evidence connecting appellant with the theft.
There is ample evidence in this record from which the trier of fact could reasonably find that the vehicle which Gregory reported as having been stolen and the vehicle in which the appellant was found were one and the same vehicle.
The testimony of Deputy Leibrandt that the identification plate had been removed from the doorpost of the vehicle coupled with testimony of Gregory that he had removed that plate himself in doing body work on the car, and the fact that Gregory came to the garage where the police had brought the car after the arrest of the appellant, identified the car and obtained it from the police, is all ample evidence from which the trier of fact could reasonably find that the vehicle had been properly identified.
To support his argument on lack of identification the appellant cites the case of Finch v. State (1967), 249 Ind. 122, 12 Ind.Dec. 22, 231 N.E.2d 45. However, the Finch case would seem to refute appellant's argument more than support it. In the Finch case the stolen goods were of such a nature as to be almost impossible to identify, being sirloin steaks and packages of cigarettes, whereas in the case at bar the automobile in question was easily identified by the owner and the arresting officer.
The Finch case also answers appellant's second contention that there was no evidence connecting the appellant with the taking of the car. The testimony of Deputy Leibrandt that the appellant was asleep in the car at the time he was discovered was certainly evidence from which the trier of fact was justified in finding that the appellant was in sole possession of the automobile at the time of his arrest.
In the Finch case at page 124, 231 N.E.2d at page 46 the Court quoted a previous decision as follows:
The appellant took the witness stand on his own behalf and testified that he had been riding with other persons in an automobile the evening before and that one of them hit him on the head and the next thing he knew he awoke in the stolen automobile. However, we have repeatedly stated that we will not weigh conflicting evidence. It was up to the trier of fact to determine the truth of the evidence. Scott v. State (1968), 250 Ind. 532, 13 Ind.Dec. 313, 234 N.E.2d 474.
We would point out that the appellant was not convicted of theft but of the offense of obtaining and exerting unauthorized control over a motor vehicle under circumstances not amounting to theft. Certainly, the evidence which was before the trial court was sufficient to prove that the appellant did in fact obtain and exert unauthorized control over the car in question whether or not he did so in such a manner as to amount to a theft.
Appellant also claims that the trial court wrongfully considered the past criminal offenses of the appellant in reaching its decision in that the judge did not confine the use of such information, to testing the credibility of the accused, but in fact used evidence of prior convictions to determine the guilt of the appellant in the instant case. With this we do not agree, The findings of the trial court announced at the time of rendering his decision indicate that he was finding the appellant guilty from the evidence submitted in the case. He merely noted that he found the appellant's explanation of his presence in the car unbelievable. He did make reference to statements by the parole officer that the appellant had an alcohol problem; however, the court specifically found that there was no evidence in the case that the appellant was so intoxicated that he did not know what he was doing. We find nothing in the record nor has the appellant shown us anything from the record to indicate the trial court used appellant's prior record to prove any of the elements of the crime charged. It was certainly proper for the trial judge to take into consideration the appellant's prior record in determining his credibility as a witness. Where, as here, the appellant takes the witness stand in his own behalf this Court has stated that his credibility like that of any other witness is a proper subject of interrogation. If that interrogation indicates unreliability of the witness, the trier of fact is entitled to take that into consideration. Wells v. State (1959), 239 Ind. 415, 158 N.E.2d 256. There was ample evidence before the trial court to sustain the conviction in this case.
The trial court is, therefore, affirmed.
I dissent and would reverse this judgment as contrary to law in that, in arriving at its verdict, the trier of fact used appellant's exercise of his constitutional right to remain silent against him in violation of the Indiana Constitution, Art. 1, § 14, which reads as follows:
1
This occurred when the trial court used against appellant the fact that he did not tell the police at the scene of the arrest the story he told in court. The pertinent facts are as follows:
The arresting officer, Deputy Sheriff Leibrandt, was sent to the scene to investigate an automobile parked on a county line road. Upon arrival the officer found the car parked in the road, tools strewn about, and the appellant asleep or passed out behind the wheel. The officer noted the Vehicle Identification Number plate had been removed and was unable to find a vehicle registration. Thereupon the appellant was placed under arrest for prevehicle taking. At trial, on cross-examination, the arresting officer testified in part as follows:
'Q. Did you have a conversation with him?
A. Yes, sir.
Q. Did you advise him of his rights?
A. Yes, sir, we did.
Q. What did he tell you and what did you tell him?
A. You mean when we were speaking to him? At the scene?
Q. Yes.
A. He told us that he did not know who the vehicle belonged to and I believe, to the best of my knowledge, he also stated that he did not know how he had arrived at that location.
Q. That was his story to you?
A. Yes, sir.'
The appellant himself took the witness stand and related substantially the following story:
Appellant went to the College Tavern approximately 9:00 p.m. October 14, 1967, where he began drinking beer and whiskey with three men and a woman. This drinking continued until approximately 2:00 a.m., October 15, at which time he left the tavern with the three men and the woman. They got in a green Pontiac and drove around. Someone hit him on the head and he remembered nothing further until he awoke in the stolen Chevrolet. Appellant did not know the names of the three men or the woman. Three days after his arrest appellant had a severe bump on his head.
Upon cross-examination the following dialogue occurred between the prosecutor and the appellant.
'Q. Why didn't you tell the Sheriff about the robbery, why didn't you report it to the Police that you had been robbed?
A. Cause I was on parole at the time and I was waiting saving it to tell my parole officer.
Q. Why didn't you tell the Sheriff that some men...
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