Landers v. State

• Decision Date: 25 June 1984
• Docket Number: No. 782S269,782S269
• Parties: Frederick LANDERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 912

464 N.E.2d 912

Frederick LANDERS, Appellant, v. STATE of Indiana, Appellee.

No. 782S269.

Supreme Court of Indiana.

June 25, 1984.

Hugh G. Baker, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, Frederick Landers, was charged by information on August 10, 1981 with robbery, Ind.Code Sec. 35-42-5-1, a class C felony, and resisting law enforcement, Ind.Code Sec. 35-44-3-3(3), a class A misdemeanor. On September 29, 1981, the State was permitted to file an amended information, adding the allegation that the defendant was an habitual offender, Ind.Code Sec. 35-50-2-8. Trial commenced on January 25, 1982. After presentation of the evidence on the substantive charges, defendant pleaded guilty to the charge of resisting law enforcement and the trial judge accepted that plea. The jury found the defendant guilty of robbery, and after hearing evidence of his prior convictions in the second phase of the trial adjudged him to be an habitual offender. He was sentenced to a term of eight years imprisonment for the robbery and this sentence was enhanced by thirty years because of the habitual offender finding. He received a sentence of two hundred days for resisting law enforcement.

In this direct appeal, defendant raises several issues for our review:

(1) Whether there is sufficient evidence to support his conviction of robbery.

(2) Whether the trial court erroneously refused his tendered instruction on the lesser included offense of criminal conversion.

(3) Whether the trial court erred by refusing to appoint two psychiatrists to determine defendant's competency to stand trial.

(4) Whether the trial court committed error by admitting a tape recording into evidence for which the State had not established a proper foundation.

(5) Whether the trial court should have granted defendant's motion for a continuance.

(6) Whether an arrest report was erroneously admitted into evidence under the business records exception to the hearsay rule.

Wanda Wallace testified that she was a cashier at a Bonded Oil gas station in Marion County and was working alone on Sunday, August 9, 1981. At 12:30 p.m., defendant entered the station and asked for a package of cigarettes. Wallace got the cigarettes and requested the fifty-nine cent purchase price after pressing a button which opened the cash register drawer. Defendant leaned over the counter and said, "Don't say anything just give me all your money." Wallace testified she was stunned and did not move. Defendant then pushed her hands away from the cash register drawer and shoved her against the cigarette case. He grabbed the bills and some change from the drawer, then lifted the drawer and checked underneath it. Wallace further testified that when a customer drove up to the station, defendant ordered her to get on the floor and then walked out of the station.

Warren Shelley, an off-duty security officer, testified that as he entered the gas station building he encountered the defendant who had a "hand full of bills." Defendant said hello to Shelley and continued out of the building. Upon being informed by Wallace that defendant had just robbed the station, Shelley ran outside and saw defendant running down the street. Shelley flagged down a marked patrol car driven by Officer Patrick Tompkins who then pursued the defendant. Defendant was also observed running from the scene by Carl Bartenbach, who was looking out a window facing the gas station.

Officer Tompkins testified that defendant entered a car and a high speed chase ensued. He pursued the defendant until defendant's car left the road, slid down an embankment and came to rest after hitting a utility pole. Defendant jumped out of the car and ran away from Officer Tompkins until he was stopped by Officer Schuyler Atkins. Wallace, Shelley and Bartenbach identified the defendant at the scene.

Defendant testified in his defense that he entered the Bonded Station and asked for a package of cigarettes. As Wallace turned to get them, defendant noticed that the cash register drawer was open slightly. He leaned over the counter, opened it fully, and took the money inside. He claimed he said nothing to Wallace at this time and did not push her hands away or shove her. When he saw a customer drive into the station, he told Wallace to get on the floor so that she would not be hurt if someone shot at him. His account of the chase and his capture did not differ significantly from that of the police officers except that he testified that he ran from the car after it stopped only because of his that the automobile might explode.

I.

Defendant first contends that there was insufficient evidence to support the verdict of the jury finding him guilty of robbery. Indiana Code Sec. 35-42-5-1 provides in pertinent part:

"A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) By using or threatening the use of force on any person; or

(2) By putting any person in fear; commits robbery, a class C felony."

Defendant claims that there was no evidence adduced that the unlawful taking here was accomplished by the use of force, the threat of force or by putting the victim in fear. Our standard of review on a claim of insufficient evidence requires that we neither weigh the evidence nor resolve questions of credibility, but look only to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. If from that viewpoint there was evidence of probative value from which a reasonable trier of fact could conclude that a defendant was guilty beyond a reasonable doubt, we will affirm the conviction. Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890; Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657.

The victim of this offense, Wanda Wallace, testified that she was alone in the gas station on a Sunday afternoon when defendant ordered her: "Don't say anything just give me all your money." Wallace was five feet two inches tall while defendant was over six feet tall. She stated that defendant "pushed" her hands away from the cash register drawer and "shoved" her several steps back against a cigarette case. She further testified that she was scared, was not sure whether the defendant was going to hurt her and shook during, as well as after, the robbery. She obeyed the defendant's command to "get down on the floor." We find that a reasonable jury could have believed Wallace's assertions of fear and concluded that the evidence was sufficient to support a guilty verdict on the charge of robbery.

II.

After the presentation of evidence on the substantive charges, defendant tendered two final instructions on lesser included offenses of robbery. The trial judge gave defendant's instruction on theft but refused his tendered instruction on criminal conversion. Defendant claims that this was error. Theft is defined by Ind.Code Sec. 35-43-4-2, which states in part:

"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."

Criminal conversion is defined by Ind.Code Sec. 35-43-4-3, which states:

"A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a class A misdemeanor."

Both theft and conversion are lesser included offenses of the crime of robbery. Rogers v. State, (1979) 272 Ind. 65, 396 N.E.2d 348. The test for determining whether it was error not to give a tendered instruction on a lesser offense, however, is not only whether that offense is necessarily included within the greater offense as charged, but also whether there was evidence presented at trial to which the included offense instruction was applicable. Rogers, supra; Rowley v. State, (1979) 271 Ind. 584, 394 N.E.2d 928; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770.

While defendant argues that the jury could have found the absence of an intent to deprive which distinguishes theft from conversion, he acknowledges that such a finding could have resulted only if the jurors were confused. He points to no evidence to show the absence of an intent to deprive the other person of the use or value of the property. Since there was no evidence to support the giving of an instruction on criminal conversion, the trial court committed no error by refusing defendant's tendered instruction.

III.

On the morning of trial, defendant filed a "Notice of Insanity" in which he cited Ind.Code Sec. 35-5-3.1-1 in claiming that he did not have "comprehension sufficient to understand the nature of the criminal action against him and the proceedings thereon to make his defense." He requested an examination by two physicians. He now claims that the trial court's refusal to appoint two disinterested psychiatrists to further assess the basis of his suggestion of incompetency was an abuse of discretion.

Indiana Code Sec. 35-5-3.1-1(a) [Acts 1974, P.L. 148, Sec. 1, p. 630; 1978, P.L. 145, Sec. 5, p. 1322 (repealed 1982); for provision effective September 1, 1982 see Ind.Code Sec. 35-36-3-1] provided:

"If at any time before the final submission of any criminal case to the court or jury trying the same, the court, either from its own knowledge or upon the suggestion of any person, has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. The court shall appoint two competent disinterested psychiatrists, who shall examine the defendant for the purpose of forming an opinion as to whether the defendant has that ability and shall testify concerning...