Johnson v. State, No. 2-980A306

Docket NºNo. 2-980A306
Citation419 N.E.2d 232
Case DateApril 20, 1981
CourtCourt of Appeals of Indiana

Page 232

419 N.E.2d 232
Josephine JOHNSON, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 2-980A306.
Court of Appeals of Indiana, Second District.
April 20, 1981.

Page 234

Harriette Bailey Conn, Public Defender, Kurt A. Young, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant Josephine Johnson (Johnson) appeals from a jury conviction of two counts of theft, challenging the admission of impeachment testimony as to her reputation for truthfulness, the trial court's use of a presentence report which referred to her juvenile record, 1 the trial court's furnishing her with a copy of the presentence report which neither articulated the method used to arrive at the recommended sentence nor recommended a sentence, and the sufficiency of the evidence. 2

We affirm.

FACTS

The facts most favorable to the State disclose that at approximately 4:25 P.M. on September 13, 1979, while Julie Pinkerton (Pinkerton) was on duty, Johnson entered Pershing's Garden & Pet Store in Marion. Pinkerton asked if she could help Johnson and Johnson replied that she was "just looking." Johnson walked to the store's back counter. Two minutes later she advanced to the room in which animals were displayed. While Johnson looked at the animals, Pinkerton entered the store's back room to clean rocks from a fish tank. Upon returning to the front of the store, she noticed that Johnson had left. She also discovered that her billfold was missing from her purse, which she kept in an office at the rear of the store. She was certain that the billfold had been in her purse at 3:30.

Pinkerton was also certain that Johnson was the only person in the store that afternoon other than Pinkerton herself. Pinkerton was the only employee on duty. Excluding the three or four minutes during which she cleaned rocks in the back room, Pinkerton did not leave the front of the store and did not see anyone enter through either the front or rear door. Furthermore, both doors were equipped with bells which rang automatically when a customer came into the store. Thus, even while Pinkerton was in the back room, the bells would have alerted her if anyone had entered. Pinkerton heard neither bell that afternoon.

Pinkerton identified Johnson as the person who had come into Pershing's during the afternoon in question. Pinkerton testified

Page 235

that Johnson had worn white shorts and a black T-shirt and had carried a black collapsible umbrella and black purse.

On the same day, at approximately 4:40 P.M., Johnson entered Berry's Accents, Unlimited in Marion. Two other customers were in the store. Rhea Miller (Miller), the only employee on duty, emerged from behind the back counter and asked if she could help Johnson. Johnson responded that she was "just looking." At about 4:45 the other two customers left the store. Johnson immediately proceeded to the back counter and began to examine the shower curtains displayed there. She asked Miller for two black or yellow shower curtains of a particular style. Miller went to the stockroom, which was closed off from the main part of the store, and returned one minute later with two yellow shower curtains. Johnson announced that she would prefer the black curtains. Miller agreed to order them and requested Johnson's name, address, phone number, and a down payment. Johnson paused before responding that her name was "Sherri Johnson," her address "318 West 9th," and her phone number "662-9106." Miller recorded the information on a note pad which was introduced into evidence. After indicating that she would return the following day with a down payment, Johnson departed.

Immediately after Johnson left, Miller closed the store for the day, taking her purse from behind the back counter at which Johnson had examined the shower curtains. Several minutes later, she discovered that her billfold was missing from her purse. She was positive that the billfold had been in her purse at 4:30 when the two customers entered. At that point, Miller had been stationed behind the back counter. She testified that she did not leave her position until Johnson entered and that neither customer had approached the counter at any time. She indicated that the store's door is equipped with an electronic bell which rings in the stockroom when a customer enters. The bell did not ring while Miller was in the stockroom. Furthermore, Miller saw no one enter the store after Johnson.

After discovering the disappearance of her billfold, Miller called the telephone number which Johnson had given. Miller was informed that the number was not in service. She then advised the police department of her loss.

At trial, Miller identified Johnson as the customer who had called herself "Sherri Johnson." Miller testified that Johnson had worn light-colored shorts and a dark T-shirt and had carried a partially opened collapsible umbrella and small dark purse.

Johnson testified in her own behalf, denying any wrongdoing. Richard Persinger (Persinger) and Carol Matchett (Matchett) offered rebuttal testimony.

Persinger, principal of Marion High School, testified that he knew Johnson when she was a student four or five years earlier. He said that he was personally aware of her reputation for truth in the school system at that time. When deputy prosecuting attorney Warren Haas (Haas) asked Persinger what that reputation was, Persinger replied that "(w)e had some difficulty with Josephine in several instances. In one case, I can recall where she had been found in possession of money taken from a locker room desk." At that point, John Fihe (Fihe), Johnson's attorney, asked that Persinger's answer be stricken because it referred to specific conduct. In addition, he objected to the reputation testimony as relating to events too remote in time to be relevant. The trial court ruled as follows: "The answer perpounded (sic) by the witness will be striken (sic) and the Jury is instructed to disregard the answer. The objection, however, is overruled, and the witness will answer the question as put to the witness originally." Thereafter, Persinger indicated that Johnson's reputation in the school system for truth was bad.

Matchett, Johnson's physical education teacher at Marion High School, also testified that she knew Johnson's reputation for truth in the school system four or five years prior to trial. When asked what that reputation was, Matchett responded, "(u)h, Johnson did steal some money." Again,

Page 236

Fihe requested that the answer be stricken and objected to the reputation testimony. And again, the trial court ordered the answer stricken, admonished the jury to disregard it, and overruled the objection. Matchett indicated that Johnson's reputation in the school community for truth was bad.

After Johnson's conviction, the trial court ordered the preparation of a written presentence report. The submitted report, a copy of which appears in the record, referred to Johnson's juvenile record, discussed factors upon which the recommended sentence was based, and recommended that Johnson receive the maximum sentence. Johnson was furnished with a copy of the report in advance of the sentencing hearing, at which she was represented by Fihe.

Johnson was sentenced to two years on each count, to be served concurrently.

ISSUES

Johnson raises four issues:

1. Did the trial court err by admitting impeachment testimony as to Johnson's reputation for truthfulness in the Marion school system four or five years before trial?

2. Did the trial court err by considering a presentence report which made reference to Johnson's juvenile record?

3. Did the trial court err by providing Johnson with a copy of the presentence report which neither disclosed the method used to arrive at the recommended sentence nor recommended a sentence?

4. Was the evidence sufficient to support Johnson's conviction of theft?

DECISION
ISSUE ONE

PARTIES' CONTENTIONS Johnson claims that the trial court should not have allowed Persinger and Matchett to testify about Johnson's reputation for truth after she took the stand in her own defense. She argues...

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7 practice notes
  • Nation v. State, No. 2-281A36
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 Octubre 1981
    ...verdict, the conviction will not be set aside. Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349; Johnson v. State, (1981) Ind.App., 419 N.E.2d 232. Nation's finely honed argument distinguishing between "becoming" as opposed to "remaining" a prostitute is contrary to the entire thrust of......
  • Skaggs v. State, No. 4-781A45
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Julio 1982
    ...and told no such statement had been made. An admonishment to the jury presumptively cures error. Johnson v. State, (1981) Ind.App., 419 N.E.2d 232. To overcome this presumption Skaggs must show the admonishment was insufficient to dispel prejudice. Skaggs has not done this. His argument is ......
  • Parson v. State, No. 2-380A68
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 Marzo 1982
    ...verdict, the conviction will not be set aside. Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349; Johnson v. State, (1981) Ind.App., 419 N.E.2d 232. The parties correctly acknowledge that proof of constructive possession is sufficient to establish an accused's possession of contraband. W......
  • Dynes v. Dynes, No. 90A02-9310-CV-537
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Julio 1994
    ...Indiana cases holding that evidence of a witness's reputation in the workplace is inadmissible. And in Johnson v. State (1981), Ind.App., 419 N.E.2d 232, we allowed impeachment of a defendant through evidence of her general reputation for truth within the school she attended. Id. at 236-38.......
  • Request a trial to view additional results
7 cases
  • Nation v. State, No. 2-281A36
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 Octubre 1981
    ...verdict, the conviction will not be set aside. Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349; Johnson v. State, (1981) Ind.App., 419 N.E.2d 232. Nation's finely honed argument distinguishing between "becoming" as opposed to "remaining" a prostitute is contrary to the entire thrust of......
  • Skaggs v. State, No. 4-781A45
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Julio 1982
    ...and told no such statement had been made. An admonishment to the jury presumptively cures error. Johnson v. State, (1981) Ind.App., 419 N.E.2d 232. To overcome this presumption Skaggs must show the admonishment was insufficient to dispel prejudice. Skaggs has not done this. His argument is ......
  • Parson v. State, No. 2-380A68
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 Marzo 1982
    ...verdict, the conviction will not be set aside. Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349; Johnson v. State, (1981) Ind.App., 419 N.E.2d 232. The parties correctly acknowledge that proof of constructive possession is sufficient to establish an accused's possession of contraband. W......
  • Dynes v. Dynes, No. 90A02-9310-CV-537
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Julio 1994
    ...Indiana cases holding that evidence of a witness's reputation in the workplace is inadmissible. And in Johnson v. State (1981), Ind.App., 419 N.E.2d 232, we allowed impeachment of a defendant through evidence of her general reputation for truth within the school she attended. Id. at 236-38.......
  • Request a trial to view additional results

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