Kessler v. State

• Decision Date: 14 October 1976
• Docket Number: No. 3--1275A272,3--1275A272
• Citation: 355 N.E.2d 262,171 Ind.App. 181
• Parties: Marion D. KESSLER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 262

355 N.E.2d 262

171 Ind.App. 181

Marion D. KESSLER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--1275A272.

Court of Appeals of Indiana, Third District.

Oct. 14, 1976.

Carl N. Lundberg, LaGrange, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Marion D. Kessler was charged in a four-count information with the offenses of fleeing a police officer ¹, speeding ², possession of burglary tools ³, and operating a motor vehicle without a valid Indiana driver's license ⁴. Trial by the court resulted in a finding of not guilty of fleeing a police officer, a finding of guilty of speeding, and a finding of guilty of possession of burglary tools. The charge of operating a vehicle without a driver's license was dismissed upon motion of the State. The trial court fined Kessler $25 and costs on the speeding count, and committed him to the Department of Correction for a term of not less than two nor more than fourteen years on the possession of burglary tools count. Thereafter, Kessler's motion to correct errors directed to the conviction for the crime of possession of burglary tools was overruled, and this appeal was perfected.

The evidence most favorable to the State reveals that on January 22, 1975, at approximately 1:50 A.M., LaGrange County Deputy Sheriff James W. Stout was patrolling LaGrange, Indiana, in a market patrol car when he observed what later proved to be Kessler's automobile parked with its headlights on in an alley behind the town's business district. Deputy Stout was northbound in the alley; Kessler's automobile was facing south. When Deputy Stout was approximately one and one-half blocks away Kessler noticed the patrol car, backed from the alley and proceeded east on Michigan Street. Deputy Stout followed for approximately three blocks, and then engaged the red lights and siren because it appeared that Kessler was attempting to avoid the patrol car. Instead of stopping, Kessler proceeded to State Road 9 and attempted to elude Deputy Stout. After a chase during which speeds reached 110-miles per hour, Kessler stopped his car in the traveled portion of the highway. Kessler and a passenger, Daniel Phillipson, obeyed Deputy Stout's command to alight from the automobile and lie on the ground. During a subsequent visual inspection of the interior of Kessler's automobile, Deputy Stout observed a butcher knife on the floor of the driver's side, and two pry bars, a screwdriver and a small sledge hammer on the back seat.

On appeal, Kessler contends that evidence offered by the State to prove he had previously been convicted of a felony was erroneously admitted and, even if properly admitted, was insufficient to prove a conviction. He also contends that certain portions of Daniel Phillipson's testimony were erroneously admitted in evidence, and that the totality of the evidence failed to prove he possessed the tools with the intent to commit burglary.

The statute under which Kessler was convicted, IC 1971, 35--13--8--1 (Burns Code Ed.), reads as follows:

'Burglary--Possession of tools by convict.--If any person previously convicted of a felony be found having in his possession any burglar tools or implements with intent to commit the crime of burglary, such person shall be deemed guilty of a felony, and on conviction thereof shall be imprisoned not less than two (2) years nor more than fourteen (14) years, and the possession of such tools or implements shall be prima facie evidence of the intent to commit burglary.'

To prove Kessler had previously been convicted of a felony, the State called Whitley County Probation Officer Susan Bagan as a witness. Ms. Bagan testified that she had conducted a presentence investigation of Kessler in connection with a criminal case tried by the Whitley Circuit Court and that he was the same person who stood charged in this case. During her testimony, the State offered in evidence the docket sheet of the Whitley Circuit Court case, 'State of Indiana vs. Marion D. Kessler, Cause No. S--73--16', which was admitted over appellant's objection. Such docket sheet reads, inter alia, as follows:

'5--14--73 * Comes now State of Indiana by Prosecuting Attorney. Comes now defendant in person in custody of the Sheriff of Whitley County together with his court appointed attorney, Richard W. Gates. Defendant advised of his constitutional rights and now enters plea of guilty to Count No. 2, being the charge of theft. Pre-sentence investigation ordered.

'5--18--73 * Comes now Whitley County Probation Officer and files pre-sentence investigation report.

'5--21--73 * Comes now State of Indiana by Prosecuting Attorney. Comes now defendant in person and by counsel. Defendant having heretofore pled guilty to the offense of theft and the Court having read and considered the pre-sentence investigation report, IT IS NOW ORDERED that for said offense of theft that the defendant be and hereby is committed to the care and custody of the Department of Corrections of the State of Indiana for not less than one (1) year nor more than ten (10) years and that he be fined $1.00 plus the costs of this action and disfranchised for a period of two (2) years. IT IS FURTHER ORDERED that the defendant be given credit on said sentence in the amount of 22 days which defendant spent in jail prior to sentencing. Sheriff of Whitley County ordered to carry out execution of this order.'

Kessler contends that the docket sheet should not have been admitted into evidence because the identity of the keeper thereof was not established, stressing that, in any event, Susan Bagan was not the proper keeper. Additionally, he contends that even if the docket sheet were properly admitted, it failed to prove a prior conviction for two reasons. First, the docket sheet makes no reference to a judgment. Second, the docket sheet does not affirmatively show venue, and therefore does not establish the jurisdiction of the Whitley Circuit Court.

Kessler's contention that the docket sheet was inadmissible because not authenticated by its keeper must fail. Ind.Rules of Procedure, Trial Rule 77(B) reads, in pertinent part:

'Civil docket. The clerk of the circuit court and the clerk serving a judge whose regular courtroom is located outside the courthouse or its environs shall keep a book known as 'civil docket' of such form that the file number of each case or proceeding shall be noted on the folio of the docket whereon the first entry of the action is made. All papers filed with or transmitted to the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, judgments, enforcement proceedings, executions and returns thereon shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number and the date of filing. Such entries shall be brief but shall show the nature of each paper filed or writ issued and the bare substance of each order or judgment of the court and of the returns showing execution of process. * * *.'

Accordingly, the Clerk of the Whitley Circuit Court is the keeper of that court's 'civil docket', and a copy thereof, when certified as true and complete pursuant to IC 1971, 34--1--17--7 (Burns Code Ed.), is admissible in evidence. ⁵

An examination of the record before us reveals that the copy of the Whitley Circuit Court docket sheet was certified in accordance with IC 1971, 34--1-- 17--7, supra, and was properly admitted in evidence.

Kessler also attempts to argue that the copy of the docket sheet should not have been admitted because a certified copy of the complete record of the prior proceeding would have been the best evidence. However, he failed to object on that ground at trial, and has therefore waived that particular aspect of the admissibility argument. Garner v. State (1975), Ind.App., 325 N.E.2d 511. Notwithstanding such deficiency, it is not necessary to place the complete record or transcript into evidence to show a prior conviction.

Kessler's contention that the docket sheet did not refer to a judgment is without merit. The portion of the docket sheet reproduced above shows that Kessler pled guilty on May 14, 1973, to theft, with judgment entered on such plea on May 21, 1973.

Kessler's argument that the docket sheet failed to prove the Whitley Circuit Court had jurisdiction of the case is also without merit. The word 'jurisdiction', when used in connection with place of trial or venue, means jurisdiction of the particular case, not jurisdiction of the subject-matter. Brown v. State (1941), 219 Ind. 251, 37 N.E.2d 73. Jurisdiction of the particular case was conferred on the Whitley Circuit Court by the filing of the informaion. Treadwell v. State (1972), 152 Ind.App. 289, 283 N.E.2d 397 (transfer denied). The Whitley Circuit Court proceeded to judgment, and it therefore must be conclusively presumed to have decided it had jurisdiction to proceed. Haden v. Dowd, Warden (1939), 216 Ind. 281, 23 N.E.2d 676. The LaGrange Circuit Court has no jurisdiction to determine whether the Whitley Circuit Court acted erroneously. Haden v. Dowd, Warden, supra. Consequently, the fact that the Whitley Circuit Court's docket sheet did not affirmatively show venue was not a proper ground upon which to object to its admissibility in the LaGrange Circuit Court, and the objection on that ground was properly overruled.

The docket sheet was properly admitted in evidence, and the contents thereof sufficient to prove Kessler had been convicted of a felony.

The next issue to be considered is whether certain portions of Daniel Phillipson's testimony were erroneously admitted in evidence. During the State's case-in-chief Phillipson was allowed to testify, over objection, that on the evening of January 21, 1975, Kessler invited him to go 'riding around', and that during the ride...