Keller v. State, 59A01–1206–CR–271.

• Decision Date: 04 April 2013
• Docket Number: No. 59A01–1206–CR–271.,59A01–1206–CR–271.
• Citation: 987 N.E.2d 1099
• Parties: Sterlen Shane KELLER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

987 N.E.2d 1099

Sterlen Shane KELLER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 59A01–1206–CR–271.

Court of Appeals of Indiana.

April 4, 2013.

Steven E. Ripstra, Ripstra Law Office, Jasper, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Sterlen Keller appeals his convictions and sentence for Class D felony auto theft, Class B felony burglary, nine counts of Class D felony theft, and Class A misdemeanor failure to report a dead body. We affirm in part, reverse in part, and remand.

Issues

Keller raises six issues, which we reorder and restate as:

I. whether the trial court properly allowed the State to amend the charging information;

II. whether he was denied his right to a speedy trial;

III. whether his statements to police were properly admitted into evidence;

IV. whether the jury was properly instructed;

V. whether there is sufficient evidence to support his convictions;

VI. whether his theft convictions violate the single larceny rule or the continuing crime doctrine; and

VII. whether he was properly sentenced.

Facts

Seventy-nine-year-old Robert Collier lived alone on his farm in Orange County. In the spring of 2010, twenty-two-year-old Keller approached Collier about selling his old farm equipment for scrap. Collier initially declined Keller's offer.

In October 2010, Keller's step-father, Joseph Howell, became suspicious when Keller began driving a GMC truck. Howell contacted someone from the Washington County Sheriff's Department, and it was eventually discovered that the truck was registered to Collier. On October 9, 2011, the Orange County Sheriff's Department conducted a welfare check on Collier and discovered Collier's body near some outbuildings on Collier's property. Based on the “[m]assive decomposition with mummification,” it was clear that Collier's body had been there for some time. Ex. 230.

From August 25, 2010, through October 4, 2010, Keller sold items to Partins Salvage (“Partins”) on fourteen occasions. Among these transactions, police discovered that Keller had sold an Oldsmobile on August 30, 2010, a farm truck on September 15, 2010, and a tractor on September 21, 2010. These vehicles were later identified as Collier's. A ring identified as Collier's was found in the ashtray of the Oldsmobile. In Keller's garage, police found another ring, which was identified as Collier's, a Social Security check made out to Collier, a box of Collier's blank personal checks, uncashed Edward Jones checks made out to Collier, and pieces of Collier's mail. A rifle, later identified as Collier's, was found in Keller's residence.

On September 28, 2010, three of Collier's Edward Jones checks were cashed. Stubs associated with these checks were found in Keller's garage. On October 7, 2010, one of Collier's personal checks was used to make a past due payment on Keller's fiancee's account at Jackson County REMC for a house Keller owned. On October 8, 2010, two of Collier's personal checks totaling $1,150.00 and made out to Keller were cashed.

On October 9, 2010, and October 11, 2010, police questioned Keller about Collier. Keller indicated that, although Collier initially declined Keller's offer to buy junk from him, Collier later contacted Keller, and Collier agreed to allow Keller to sell farm equipment and other items for scrap. According to Keller, he initially paid Collier outright for the items, and they later agreed to a 60/40 split of the proceeds. Although Keller initially denied any wrongdoing, he eventually admitted that he had found Collier dead on the property around August 23, 2010, and after the discovery he took Collier's GMC truck and mail from Collier's mailbox on two occasions.

On October 12, 2010, the State charged Keller with murder, Class D felony auto theft, and Class A misdemeanor failure to report a dead body. On December 12, 2011, Keller moved to suppress his statements to police. After a hearing, the trial court denied the motion to suppress.

A jury trial was scheduled for February 21, 2012, and, on February 9, 2012, the State moved to amend the charging information to include, in addition to the three original charges, one count of Class B felony burglary and nine counts of Class D felony theft. The amended information contained the following allegations, Count 1, murder; Count 2, Class D felony auto theft of the GMC truck; Count 3, Class B felony burglary; Count 4, Class D felony theft of the Social Security check; Count 5, Class D felony theft of the Edward Jones checks; Count 6, Class D felony theft of the personal checks; Count 7, Class D felony theft of the ring found in Keller's garage; Count 8, Class D felony theft of the ring found in the ashtray of the Oldsmobile; Count 9, Class D felony theft of the rifle; Count 10, Class D felony theft of the tractor; Count 11, Class D felony theft of the Oldsmobile; Count 12, Class D felony theft of the farm truck; and Count 13, Class A misdemeanor failure to report a dead body.

Keller objected to the amendment and, on February 17, 2012, after a hearing, the trial court denied the amendment because adding the charges so close to trial was a surprise that prejudiced Keller's preparation of a defense. On February 21, 2012, the State moved for a continuance so that it could file the additional charges, which the State would be barred from pursuing at a later time. At a hearing that same day, Keller objected to the continuance and the prospective amendment. The trial court granted the continuance, allowed the State five days to refile the amended information, and rescheduled the trial for April 17, 2012. At the conclusion of the hearing, Keller filed a motion for early trial pursuant to Indiana Criminal Rule 4(B). On February 24, 2012, the State refiled the amended information. Keller again objected to the amendment and, after a hearing on April 5, 2012, the trial court overruled the objection.

An eight-day jury trial began on April 17, 2012. At the conclusion of the trial, the jury found Keller not guilty of murder and guilty of the remaining charges. On May 22, 2012, a sentencing hearing was held. The trial court found as mitigating Keller's age, the hardship on his family, his acceptance of responsibility, and his low risk of reoffending. The trial court found as aggravating Collier's age, Collier's physical disability, Keller's criminal history and pattern of dishonesty, and the fact that, after Keller discovered Collier's body, he did not report the body and repeatedly returned to commit additional crimes. The trial court sentenced Keller as follows: auto theft, three years; burglary, fifteen years, with eight executed and seven suspended; theft of the Social Security check and the Edward Jones checks, two years each; theft of the personal checks, one and a half years; theft of the two rings and rifle, one and a half years each; theft of the tractor, the Oldsmobile, and the farm truck, three years each; and failure to report a dead body, one year. The trial court ordered the sentence for the theft of the personal checks to run concurrent with the auto theft charge and the sentences for the theft of the rings and the rifle to run concurrent with the burglary charge. The trial court ordered the remaining sentences to be served consecutively for a total sentence of thirty-two years, with twenty-five years executed and seven years suspended. Keller now appeals.

Analysis

I. Amendment

Keller argues that the trial court abused its discretion by permitting the State to amend the charging information. Keller acknowledges that generally a defendant's failure to request a continuance after a trial court allows a pre-trial substantive amendment to the charging information results in waiver. See Wilson v. State, 931 N.E.2d 914, 918 (Ind.Ct.App.2010), trans. denied. Keller claims that he should not be held to have waived his right to appeal this issue because he had filed an early trial motion, because the second amended information was identical to the first, which the trial court had previously rejected, because the trial court charged him for the delay, and because the State filed the amended charges less than two weeks prior to trial.¹

The record does not support these assertions. On February 9, 2012, shortly before the trial was scheduled to begin, the State sought to amend the charging information to include the burglary and theft charges. Keller objected and, on February 17, 2012, the trial court denied the amendment because the late filing was prejudicial to Keller's ability to prepare a defense. On February 21, 2012, the State moved for a continuance so that it could refile the additional charges. Keller objected to the continuance and asserted his right to an early trial. At a hearing that same day, the trial court acknowledged that all of the previous continuances had been requested either by Keller alone or by Keller and the State jointly. The parties also discussed whether the State would be statutorily barred from pursuing the additional charges later. The trial court concluded that the continuance remedied any surprise and allowed Keller time to prepare a defense. The trial court granted the State five days to refile the charges, which it did on February 24, 2012, and rescheduled the trial for April 17, 2012. On March 5, 2012, Keller again objected to the State's filling of the amended information and, on April 5, 2012, the trial court overruled the objection.

Quite simply, not only did Keller fail to request a continuance, he objected to the State's motion for a continuance. See Tr. p. 206. We are not convinced that Keller's March 5, 2012 objection or his early trial motion are sufficient to avoid the waiver of this issue.

Waiver notwithstanding, Keller's argument that the new charges were amendments of substance appears to be based on case law...