Iseton v. State

• Decision Date: 27 December 1984
• Docket Number: No. 2-883A295,2-883A295
• Parties: Todd ISETON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 643

472 N.E.2d 643

Todd ISETON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-883A295.

Court of Appeals of Indiana,

Second District.

Dec. 27, 1984.

Bruce M. Frey, Marion, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Defendant Todd Iseton appeals his conviction in a jury trial of two counts of theft, class D felonies under Ind.Code Sec. 35-43-4-2(a) (1982). ¹ He raises the following issues on appeal:

1) Whether the evidence presented at trial was sufficient to support the conviction,

2) whether it was error to admit into evidence the deposition of the victim, Miss Geneva Haines, and

3) whether it was error to overrule Iseton's objection to trial before a six-person jury.

Facts

In July of 1980, Miss Geneva Haines lived alone in a house owned by her niece and close companion, Velma Thresher. Because Miss Haines, then in her mid-seventies, was a financially conservative person, Mrs. Thresher was shocked when Miss Haines asked her for money. Miss Haines's bank checked its records, at Mrs. Thresher's request, and then contacted the Grant County Sheriff's department.

Upon investigation, Lieutenant Brown concluded sums of money had been taken from Miss Haines for repairs to her home that were not made. Because the person who purportedly made the repairs would call to arrange cash payments for the unmade repairs, Brown installed an electronic recording device on Miss Haines's telephone.

Using information from the recordings to time his observations, Brown watched Miss Haines pay a man, later identified as Iseton's son, in marked bills on July 2, 1980. On July 21, Iseton was arrested in Miss Haines's home; at the time of the arrest, Iseton was carrying $1,800.00 in marked bills from the July 2 payment and $280.00 Miss Haines had given him that day.

On July 28, 1980, Iseton was charged by information with two counts of theft involving the July 2 and July 21 payments. The case was tried October 21, 1982; Iseton voluntarily waived his right to be present at trial. Iseton's motions to suppress the deposition of Miss Haines were overruled, and the case was tried to a six-person jury over Iseton's objection that a twelve-person jury was constitutionally required.

I. Sufficiency of the Evidence

Iseton argues the evidence was insufficient to support his convictions. As to Counts I and II, he argues that after he voluntarily absented himself from the trial, the State failed to identify him (Iseton) as the person who committed the crimes. He also argues that the State failed to establish proper venue. As to Count II Iseton argues the State failed to prove any criminal conduct by him.

In reviewing the sufficiency of the evidence, we neither weigh the evidence nor judge the credibility of witnesses. If there is substantial evidence of probative value to support the conclusion of guilt beyond a reasonable doubt, the verdict will not be set aside. Coburn v. State, 461 N.E.2d 1154 (Ind.App.1984); Gatewood v. State, 430 N.E.2d 781 (Ind.1982).

A. Identity of the Perpetrator

A defendant can expressly waive his right to be present at trial, Gilbert v. State, 395 N.E.2d 429 (Ind.App.1979), and the trial may continue in his absence. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).

Even when a defendant is present at trial, witnesses need not point to the defendant to establish the requisite identification. State v. Schroeppel, 240 Ind. 185, 162 N.E.2d 683 (1959) (witness referred to both "Schroeppel" and "defendant" and said that the defendant was present in the courtroom); O'Brien v. State, 422 N.E.2d 1266 (Ind.App.1981) (testimony showed defendant had identified himself by name to arresting officer); Preston v. State, 259 Ind. 353, 287 N.E.2d 347 (1972) (three witnesses referred to "defendant" as the person who committed the crime). Identification by name, for example, is sufficient. Broecker v. State, 168 Ind.App. 231, 342 N.E.2d 886, 890 (1976). See also Martin v. State, 457 N.E.2d 1085 (Ind.1984) (sufficient identification, in defendant's absence, in witnesses' references to defendant's name and to the "person who had been sitting at the defendant's table during voir dire" of the jury); Bullock v. State, 451 N.E.2d 646 (Ind.1983) (identification primarily by photographs, in defendant's absence).

While no witness pointed to Iseton and expressly identified him as the transgressor, known by Miss Haines as Mr. Dorman, there was sufficient evidence presented at trial from which the fact finder could determine Iseton's identity beyond a reasonable doubt.

The deposition of Miss Haines included the following testimony:

"Q. Did they arrest Todd Iseton?

A. Yes, 'cause I told who he was. I identified him.

....

Q. And that was the same man that you had been giving money to for all this time?

A. Yes. They'd been looking for him for a good while."

Record at 388-89. Lieutenant Brown, the officer who arrested the man present at the July 21 incident, referred to the person arrested as "the defendant"; Brown noted that when that person was arrested, "[h]e had identification on him to state that he was Todd Iseton." Record at 342. Another officer testified that shortly after the arrest Miss Haines identified the defendant, Todd Iseton, as the "Mr. Dorman," who had been there on previous occasions. Record at 353.

The evidence on the record is sufficient to support Iseton's identification beyond a reasonable doubt.

B. Sufficiency of Evidence Regarding July 2nd Theft

Iseton claims the State failed to prove he was involved with the July 2nd theft. He admits he was in possession of $1,800 in marked bills that were part of that theft but argues their possession alone was insufficient to support his conviction of Count II under the information. ² The evidence shows his son received the July 2nd payment from Geneva Haines.

Under Ind.Code Sec. 35-41-2-4 (1982), a person who knowingly or intentionally induces or causes another person to commit an offense commits that same offense. This section effectively codifies the common law doctrine that a person who causes a crime to be committed by an agent is responsible for the acts done by the agent. See Ind.Code Ann. Sec. 35-41-2-4 commentary by C. Thompson (West 1978).

The record shows that before the July 2nd payment Miss Haines received a telephone call from Iseton arranging that payment. After the July 2nd payment Miss Haines received a phone call from "those [whom the police] were investigating" (the "Mr. Dorman" Miss Haines later identified as Iseton) indicating that the amount picked up was not enough and that another payment would be necessary. The additional payment was set for July 21; Iseton was arrested in Miss Haines's house when he arrived to take payment on that date. Record at 342.

The evidence presented at trial was sufficient to support a finding Iseton at least caused his son to take the payment of money prearranged in Iseton's earlier phone conversation with Miss Haines. Accordingly, Iseton is criminally responsible for the theft of July 2nd.

C. Grant County Venue

Iseton argues the State failed to introduce evidence that the crimes charged were committed in Grant County, where the trial was held. We disagree. The following exchange occurred at Miss Haines's deposition.

"Q. You don't recall the address. Where did you live from Marion, can you describe where your home was in relationship to the city of Marion?

A. Seven (7) miles east of Marion on State Road $ 18.

Q. Okay, thank you. And why did you leave your Marion, Grant County address?

A. My health.

Q. And do you know, recall when approximately you left that Grant County address?

A. Two (2) or three (3) months ago.

Q. And where did you go from your Grant County home?

A. First I went to my niece's in Muncie and then I came here. I been here two (2) or three (3) months."

Record at 368.

Considered along with other testimony regarding the events of July, 1980, including the investigation, surveillance and arrest by Grant County Sheriff personnel, the testimony shown above was sufficient for a reasonable fact finder to conclude, by a preponderance of the evidence, that the crimes were committed in Grant County.

II. Admission of the Deposition

Iseton argues the court erred in denying his motion to suppress the deposition of Geneva Haines. He claims the State failed to establish the witness was unavailable and he was therefore denied the right to confront the witnesses against him. ³

The purposes of the confrontation requirement are to insure reliability by means of the oath, to expose the witness to the probe of cross-examination, and to permit the trier of fact to weigh the demeanor of the witness. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). While the right of confrontation is not absolute, the difficulty lies in determining when considerations of public policy and the necessities of the case justify dispensing with confrontation at trial. United States v. Wolff, 658 F.2d 455 (7th Cir.1981) (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895)).

The two-step approach used in determining when previously recorded testimony may be used in a trial in lieu of in-court testimony was described by the Seventh Circuit Court of Appeals in its opinion in United States v. Wolff. See also Gallagher v. State, 466 N.E.2d 1382 (Ind.App.1984). The first part of the test requires the prosecution to "either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant." 658 F.2d at 460 (quoting Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980)). The court must then determine that the statement to be used bears sufficient "indicia of reliability," usually by establishing the defendant had an opportunity to...