Kindred v. State, 685S224

Citation540 N.E.2d 1161
Case DateJune 28, 1989
CourtSupreme Court of Indiana

Page 1161

540 N.E.2d 1161
James H. KINDRED, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 685S224.
Supreme Court of Indiana.
June 28, 1989.

Page 1166

Michael E. Hunt, Public Defender, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Following a jury trial, the defendant-appellant, James H. Kindred, was convicted of class C forgery and class D theft. He was sentenced to consecutive terms of 4 years for theft and, upon the finding that he was a habitual offender, 38 years for forgery.

In February 1984, the defendant was employed to perform legal research in the Martinsville office of attorney Joseph Barker. The defendant stole blank checks from Barker's office. The defendant made one of the checks payable to "Hooser Para Legal Firm/Gary D. Hooser" and forged Barker's signature upon the check.

In this direct appeal, the defendant's 47 issues have been regrouped as follows:

1. venue of Morgan County;

2. motion to transfer and consolidate;

3. motion to disqualify trial judge;

4. marital privilege;

5. alleged defects in the informations;

6. motion for change of judge;

7. motion for discharge;

8. discovery request;

9. pro se defendant's taking of depositions;

10. handwriting exemplars;

11. motion to strike the jury panel;

12. motion for continuance;

13. motion to exclude testimony;

14. motion for mistrial;

15. trial judge's remarks to defendant;

16. evidence sufficiency for theft conviction;

17. habitual offender determination;

18. defendant's withdrawal from trial proceedings;

19. presence of State's witness during conference on instructions;

20. State's motion in limine; and

21. motion for return of money.

1. Proper Venue

On February 17, 1984, the defendant was charged by information in Morgan County with forgery and attempted theft. The defendant filed a motion to dismiss the forgery count for lack of proper venue based on his allegation that the forged document was made in Monroe County. The trial court denied the motion along with a subsequent motion to reconsider and a motion to transfer venue predicated on the same grounds. The defendant cites these adverse rulings as reversible error and couches his arguments in terms of whether venue is properly challenged by a pre-trial motion to dismiss and whether the State failed to adequately rebut the lack-of-venue allegations.

The defendant's arguments concerning the disposition of his motion to dismiss appear to be based on the contention that if the forged instrument was "made" in Monroe County, it presented a jurisdictional impediment to his conviction in Morgan County and was thus a proper subject of a motion to dismiss under Ind.Code Sec. 35-34-1-4(a)(10). This argument confuses the concepts of "venue" and "jurisdiction," which are separate and distinct. Anderson v. State (1983), Ind.App., 452 N.E.2d 173 (decided under former Ind.Code Sec. 35-1.1-2-1). Under our venue statute, Ind.Code Sec. 35-32-2-1, criminal actions shall be tried in the county where the offense was committed. However, if it appears at any time before the verdict or finding that the prosecution was brought in an improper county, the court shall order that the case be transferred to the county of proper venue. Ind.Code Sec. 35-32-2-5. Thus, it would have been proper for the defendant to have moved to transfer but not to dismiss in this case. The defendant did ultimately move to transfer venue but did so only after the conclusion of the State's case in chief. Thus, the question becomes one of sufficiency of the evidence to support the conclusion that proper venue was in Morgan County.

This case was tried in Putnam County following the grant of the defendant's motion

Page 1167

for a change of venue from Morgan County, where the forgery and theft charges were filed. The defendant contends that Morgan County was not the proper venue because the "making" of the forged instrument occurred in Monroe County.

Except as otherwise provided by law, criminal actions are to be tried in the county where the offense was committed. Ind.Code Sec. 35-32-2-1. If an offense is committed in Indiana and it cannot readily be determined in which county the offense was committed, trial may be in any county in which an act was committed in furtherance of the offense. Ind.Code Sec. 35-32-2-1(d). The State has the burden of proving venue, which may be proven by circumstantial evidence alone. Hatton v. State (1982), Ind., 439 N.E.2d 565, 568.

A review of the relevant evidence in this case reveals that on or about February 16, 1984, while the defendant was employed as a paralegal in the law office of Joseph Barker in Morgan County, the defendant forged Barker's signature on an instrument stolen from Barker's private office. The instrument containing the forged signature was discovered in the defendant's work area and Barker confronted the defendant, who stated that he was just using the check to practice. We find the evidence sufficient to support the conclusion that the defendant forged the check in Morgan County and committed acts in furtherance of the offense in Morgan County. We therefore find no error.

2. Motion to Transfer and Consolidate

The defendant moved to transfer this case to Monroe County and to have the charges consolidated with other charges already pending there. The motion was purportedly filed pursuant to Ind.Code Sec. 35-32-2-5(a) and (c) and Ind.Code Sec. 35-32-2-4(c)(2). He now challenges the trial court's denial of that motion.

We note first that Ind.Code Sec. 35-32-2-5(a) deals with transfer when an action is filed in an improper county, and, as discussed previously, venue was proper in Morgan County. Subsection (c) involves transfer of cases when the court is without jurisdiction, and the defendant fails to support any contention that the court was without jurisdiction here.

Indiana Code Sec. 35-32-2-4(c) provides that "[i]n a prosecution for an attempt to commit a crime, the offender may be tried in any county in which: ... (2) The underlying crime was to have been completed." The wording clearly indicates that it was merely designed to afford an alternative forum in which to try the case and does not bestow upon the defendant any statutory right to be tried in a particular county.

The thrust of the defendant's argument seems to be that fairness dictated that the instant offenses should have been consolidated with the offenses charged in Monroe County because they all stemmed from the same continuing series of acts. Citing Chief Justice Bobbitt's separate opinion in Boyle v. State (1960), 241 Ind. 565, 170 N.E.2d 802, the defendant suggests that the series of offenses for which he was charged was but a single continuing crime, and that the State was precluded from separating the offenses and trying him for the same offense in one venue after failing to convict him in another venue. He asserts that he was unduly prejudiced in this case because the State, in essence, was allowed to have "two bites at the apple." Despite whatever appeal this argument has at first glance, we are convinced that the trial court's failure to transfer and consolidate the charges did not constitute error.

First, the charges pending in Monroe County were one count of perjury involving the defendant's procurement of a fraudulent driver's license and two counts of forgery (uttering) for passing forged checks at a Bloomington bank. Although the instant charges appear related in the sense that they were part of a comprehensive criminal scheme, the offenses here were based on distinct criminal acts occurring in Morgan County and punishable separately from the offenses charged in Monroe County.

Page 1168

Moreover, the consolidation of actions is governed by Trial Rule 42(A):

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

In Figg & Muller Engineers, Inc. v. Petruska (1985), Ind.App., 477 N.E.2d 968, our Court of Appeals held that this rule does not authorize transfer of actions from one court's jurisdiction to that of another for consolidation. We see no basis to disturb that holding as it comports with the plain language of the statute; thus, the defendant's argument on this issue must fail.

3. Motion to Disqualify Trial Judge

On February 20, 1984, the presiding judge in Morgan County disqualified himself from the case as a matter of judicial discretion and ordered the parties to select a special judge by striking the names of two of three judges submitted by the then-presiding judge. The State struck the name of Judge Byron Wells of Shelby County, and the defendant struck the name of Judge William Vaughn III of Putnam County, leaving Judge James Dixon as the appointed special judge. Thereafter, the defendant sought and the court granted his motion for change of venue from Morgan County. Pursuant to Criminal Rule 12 and Trial Rule 76, the parties alternately struck contiguous counties, leaving Putnam County, where Circuit Court Judge William Vaughn III presided over the case. The defendant objected to Judge Vaughn presiding over the case because the defendant had previously stricken Judge Vaughn from the panel of judges from which the special judge was appointed. The defendant moved to disqualify Judge Vaughn and now cites as reversible error Judge Vaughn's denial of that motion. The defendant's argument has no merit.

The defendant relies on Trial Rule 79(11), which provides in part:

Any regular judge of a circuit, superior, criminal, probate or juvenile court and any member of the bar in this state shall be eligible for appointment in any of such courts as a special judge in any case pending in...

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