Kalady v. State

Decision Date10 May 1984
Docket NumberNo. 182S30,182S30
PartiesJoseph M. KALADY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender of Ind., David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Joseph M. Kalady was convicted of Theft, Ind.Code Sec. 35-43-4-2 (Burns Repl.1979) and Sec. 35-43-4-4 (Burns Repl.1979), at the conclusion of a jury trial in Elkhart Superior Court on October 30, 1980. Kalady also was found to be a habitual offender. The trial court sentenced him to thirty-four (34) years imprisonment. He now appeals.

After combining several related issues, the defendant raises the following fifteen errors on appeal:

1) whether there was sufficient evidence to convict the defendant of theft;

2) whether the trial court erred by allowing the State to amend the information;

3) whether the State committed error in the examination of a witness;

4) whether the State erred in asking certain questions during the voir dire;

5) whether the trial court erred in failing to admonish the prosecutor during the opening argument;

6) whether the trial court erred in overruling the defendant's objections to allegedly prejudicial statements during the final argument;

7) whether the trial court erred in allowing a prosecution witness to give an opinion;

8) whether the trial court erred in allowing a witness to testify about irrelevant, immaterial, and prejudicial matters;

9) whether the trial court erred in allowing a witness to answer a question that called for an irrelevant and immaterial answer;

10) whether the defendant's former counsel deprived him of effective assistance of counsel;

11) whether the trial court erred in sentencing the defendant for contempt of court;

12) whether the trial court erred in refusing to rule on motions;

13) whether the trial court erred by requiring the defendant to furnish a handwriting exemplar;

14) whether the trial court erred in denying the defendant's pro se motion for discovery; and,

15) whether the trial court erred in refusing to give defendant's tendered instruction 9, and in giving final instructions 13 and 7.

Joseph Kalady was the Secretary/Treasurer of Recreation Marketing Services, Inc. (RMS), a mail order truck cover operation. Frank Gerage served as President of RMS. On March 1, 1978, a checking account was opened at the First Pacific Bank of Chicago in Chicago, Illinois, in the name of RMS. A personal check from Joseph Kalady in the amount of $100.00, drawn on the St. Joseph Valley Bank in Elkhart, Indiana, was deposited into the RMS account. On March 6, 1978, the defendant deposited a check for $2,500.00, drawn on the First Pacific Bank of Chicago from the RMS account, into his personal checking account. The next day, March 7, defendant Kalady wrote a check against his personal checking account in the amount of $2,000.00, payable to cash. Six days later on March 13, 1978, the check for $2,500.00 was returned to the St. Joseph Valley Bank and charged against Kalady's account for non-sufficient funds. The St. Joseph Valley Bank contacted the defendant on several occasions to rectify the overdraft but Kalady never responded. The bank filed a civil action against the defendant to recoup its loss and was awarded a judgment but it was never paid.

I

The defendant first argues that there is insufficient evidence to convict him of theft. Defendant urges this Court to find that the State's evidence does not show that he had the requisite intent to deprive the St. Joseph Valley Bank of its money. Defendant Kalady also alleges that the State failed to prove venue by a preponderance of the evidence and the verdict should be reversed.

The defendant was charged with theft pursuant to Ind.Code Sec. 35-43-4-2 and, more particularly, Ind.Code Sec. 35-43-4-4(e), which sections read as follows:

35-43-4-2. Theft.--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.

35-43-4-4. ... Insufficient fund checks ...

* * *

* * *

(e) Except as provided in section 5(b) [35-43-4-5(b) ] of this chapter, a person who has insufficient funds in or no account with a drawee credit institution and who makes, draws, or utters a check, draft, or order for payment on the credit institution may be inferred:

(1) To have known that the credit institution would refuse payment upon presentment in the usual course of business; and

(2) To have intended to deprive the owner of any property acquired by making, drawing, or uttering the check, draft, or order for payment of a [any] part of the value of that property.

In determining sufficiency of the evidence, this Court will not weigh the evidence. Rather, the evidence will be found sufficient if, viewing the evidence most favorable to the State and reasonable inferences drawn therefrom, there was substantial evidence of probative value as to every element of the crime charged. Gibbens v. State, (1982) Ind., 434 N.E.2d 82; Webb v. State, (1977) 266 Ind. 554, 364 N.E.2d 1016.

There was sufficient evidence presented to the jury from which it could find or infer that the defendant intended to deprive the St. Joseph Valley Bank of its property. Without reciting the facts again as presented above, the jury could have inferred that the defendant knew that sufficient funds were not available when he wrote a check for $2,000.00 made payable to cash and drawn on the First Pacific Bank of Chicago, and then presented the check for payment to the St. Joseph Valley Bank in Elkhart. Furthermore, the evidence shows that the St. Joseph Valley Bank informed the defendant on many occasions that there was an overdraft and made demand for its payment. The defendant never responded to the bank's request. The trier of fact, therefore could reasonably have inferred that the defendant knowingly or intentionally exerted unauthorized control over the property of the St. Joseph Valley Bank with intent to deprive the bank of its use or value.

Defendant also argues that there was no evidence to prove that the theft occurred in Elkhart County, Indiana. Proper venue must be proved by the State by a preponderance of the evidence. Sizemore v. State, (1979) 272 Ind. 26, 395 N.E.2d 783. Proof that the crime occurred in the county identified in the charging instrument ordinarily serves this purpose. Morris v. State, (1980) Ind., 409 N.E.2d 608. The defendant and the State entered into a stipulation which was admitted into evidence which stated, among other things, that the defendant Joseph M. Kalady was the maker and signer of the check payable to cash for $2,000.00, at the St. Joseph Valley Bank in Elkhart, Indiana, and cashed the check on March 7, 1978. Elkhart, Indiana is located in Elkhart County. This was sufficient with the other evidence to prove venue by the State.

II

Defendant raises several issues concerning Count II, the habitual offender charge. One of those issues regarded the amendment of that Information by the State. Count II of the original information was filed on July 20, 1979. This Count charged that the defendant had previously been convicted of five felonies. On September 11, 1980, a jury found the defendant guilty of theft. On September 19, 1980, the State filed the Motion to Amend Count II of the Information in order to correct the dates of two prior felony convictions. The State, on December 11, 1980, filed a second amended Count II of the Information. On January 20, 1981, both the State and the defendant requested dismissal of the amended Count II as it existed prior to December 2, 1980. The trial court granted this request but also approved, over the objection of the defendant, the State's second amended Count II which was filed on December 11, 1980.

Defendant claims the trial court erred by permitting the State to file a second amended Count II of the Information. The State points out that Ind.Code Sec. 35-3.1-1-5(c) (now repealed; see Ind.Code 35-34-1-1 et seq.) provides that an information may be amended at any time before, during or after trial if it does not prejudice the substantial rights of a defendant. Here the State properly filed the second Amended Count II. Furthermore, because the trial court had a problem determining the sentence to be given the defendant on the substantive charge (whether the theft conviction should be a class D felony or class A misdemeanor), the trial court took sentencing under advisement for approximately thirty days. During that time many members of the jury stated that they had read accounts of the proceedings in the newspapers and felt they could not be impartial in sitting on the habitual offender phase of the trial. They were accordingly discharged and a new jury was picked to hear the habitual offender proceeding. The record therefore shows the defendant was given adequate time to prepare a defense to the second amendment of Count II and that he was fully aware of both the changes in the amended count and of the charges he faced in the trial of this issue. The amendment, therefore, did not create any prejudice to the substantial rights of the defendant and we therefore see no error in the trial court permitting it.

Defendant further claims the trial court erred in sentencing him and considering the same aggravating factors in sentencing him on both the theft count and habitual criminal count. He argues that the use of prior convictions to enhance the sentence for the substantive crime constitutes reprosecution for the same offense after a finding that he is an habitual offender for those same convictions. This issue has already been decided adversely to the defendant by this Court in Griffin v. State, (1981) Ind., 415 N.E.2d 60. Habitual offender...

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