Linger v. State
| Decision Date | 01 June 1987 |
| Docket Number | No. 16A04-8605-CR-00130,16A04-8605-CR-00130 |
| Citation | 508 N.E.2d 56 |
| Parties | Ronald LINGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
Ronald Linger was convicted of four counts of theft, Class D felonies, and sentenced to the maximum four years on each count, to be served concurrently. Linger appeals his convictions on the grounds that: (1) an accomplice witness' testimony was inherently incredible; (2) the trial court failed to give a jury instruction on accomplice testimony; (3) the trial court improperly admitted a toolbox without proper identification; (4) the trial court improperly played an audio tape for the jury in open court after deliberations had begun; and (5) the trial court erred in considering mitigating and aggravating circumstances in sentencing.
We affirm Linger's convictions. We remand to the trial court to vacate the sentences previously entered and to state its reasons for enhancing the basic term of 2 years imprisonment on four counts of theft and to articulate the balance of mitigating and aggravating circumstances or, alternately, to resentence the defendant to the presumptive sentence on each of the four theft convictions.
Ronald Linger was convicted by jury of four counts of theft, Class D felonies. Two of these counts involved the theft of 386 pounds and 926 pounds of tin anodes from Bohn Aluminum and Brass Corporation, Linger's employer, in August and September, 1981. Linger was also convicted of the theft of neighbor John Hitchel's toolbox on November 19, 1982 and neighbor George Simmond's dog, Frank, a mixed beagle-dachshund, on December 3, 1982. The trial court sentenced Linger to the presumptive two years and enhanced the presumptive term by an additional two years, totaling 4 years on each of the 4 counts, to be served concurrently. The court identified two statutory mitigating factors (defendant led a law-abiding life for a substantial period of time prior to commission of the crimes and incarceration would cause undue hardship to his dependents). The court then increased the basic term of 2 years to 4 years due to two statutory aggravating factors (Linger's prior felony convictions, and the fact that a suspended sentence would depreciate the seriousness of the offenses) and two nonstatutory aggravating circumstances (theft from employer where Linger was in a position of trust, and the fact that Linger denied his guilt and showed no remorse).
Linger appeals his conviction and sentence, raising five issues, which we have restated, for review:
I. Whether there was sufficient evidence to support the verdict because the testimony of an accomplice-witness was inherently incredible.
II. Whether the trial court erred in refusing to give the jury defendant's tendered instruction that accomplice testimony should be cautiously received and carefully scrutinized.
III. Whether State's Exhibit 3, the allegedly stolen toolbox, was improperly admitted into evidence because it was not properly identified.
IV. Whether the trial court erred by playing an audio tape for the jury after it retired for deliberations because the tape was subject to improper use and unduly prejudiced the defendant.
V. Whether the trial court erred in assessing aggravated sentences for each four counts of theft because it did not properly articulate the weighing process for each sentence.
Linger maintains there was insufficient evidence to convict because the testimony of tin theft accomplice Michael Wright, obtained through a plea agreement with the State, was inherently incredible and unworthy of belief. 1 Linger claims Wright "unloaded" the majority of the blame for the crimes upon him by testifying the theft of the tin anodes was entirely Linger's idea and Wright's involvement was minimal; and that Wright turned over 85% of the profits of the anode thefts to Linger. Linger points out that Wright was employed as maintenance electrician at Bohn, and had access to all of the companies facilities; Wright by his own admission took most of the risk by carrying the anodes in his truck and later selling them, by himself, to scrap yards in Columbus and Louisville; Linger was broke after the thefts but Wright was driving a new van; bolt-cutters like the ones used in the anode thefts were found in Wright's garage; tin anodes taken in a third Bohn theft were found in Wright's woodpile. Linger argues that Wright was caught with the tin anodes, arrested, and charged with the thefts, then decided it was in his best interests to cooperate with police to arrest and convict Linger, and that Wright had nothing else to trade for a lesser sentence. Linger also notes that Wright's testimony was necessary to show the theft of the dog and the toolbox to establish Linger knew the property he conveyed to others was stolen.
The State asserts Wright's credibility does not rise to the level of being inherently incredible and the evidence was both probative and sufficient to support the jury's verdict.
As an appellate tribunal, we neither reweigh the evidence nor judge the credibility of witnesses when an appellant challenges the sufficiency of the evidence, but consider only the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. Freeze v. State (1986), Ind., 491 N.E.2d 202. We review the evidence for the purpose of determining, as a question of law, whether there is substantial evidence of probative value from which a jury could reasonably infer or find the existence of each material element of the crime in order to reach the conclusion that the accused has been proved guilty beyond a reasonable doubt. Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641. Substantial evidence of probative value is evidence that has the qualities of directness and freedom from uncertainty. Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639.
The rule of law defining proof beyond a reasonable doubt is well settled:
"It requires the trier of facts to be so convinced by the evidence that as a prudent man he would feel safe to act upon such conviction in matters of the highest concern and importance to his own nearest, dearest and most important interests under circumstances where there was no compulsion or coercion to act at all."
Easton v. State (1967), 248 Ind. 338, 344-45, 228 N.E.2d 6, 11. A reasonable doubt Brown v. State (1977), 266 Ind. 82, 360 N.E.2d 830, 836. A reasonable doubt of guilt must be more than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla. Harris v. State (1978), 269 Ind. 672, 382 N.E.2d 913.
Here, the principal evidence which establishes that Linger committed the tin anode thefts is the testimony of accomplice Michael Wright. 2 Uncorroborated testimony of an accomplice will support a conviction. Taylor v. State (1981), Ind., 425 N.E.2d 141; Kilgore v. State (1979), 271 Ind. 257, 391 N.E.2d 820. While the testimony of Wright and Linger was in direct opposition, it was for the jury to weigh the evidence and determine the credibility of the witnesses. Taylor, supra; Bond v. State (1980), 273 Ind. 233, 403 N.E.2d 812. As long as the evidence and the inferences which may be drawn therefrom permit a reasonable trier of fact to find the existence of each element of the crime beyond a reasonable doubt, the conviction will stand. Taylor, supra; Robinson v. State (1977), 266 Ind. 604, 365 N.E.2d 1218. This is not a case where this court is confronted with inherently improbable, coerced, equivocal or wholly uncorroborated testimony of "incredible dubiosity." See, Budd v. State (1986), Ind., 499 N.E.2d 1116; Rodgers v. State (1981), Ind., 422 N.E.2d 1211; cf. Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240 (). We do not find Wright's testimony inherently incredible and conclude the evidence in this case adequately supports the four theft convictions.
Linger claims the trial court erred in refusing to read to the jury his tendered instruction that accomplice testimony should be cautiously received and carefully scrutinized. Linger asks this court to reconsider the rule applied by our Supreme Court in Taylor v. State, supra, which provides the trial court's refusal to give an instruction to the jury that accomplice testimony should be cautiously received and carefully scrutinized was proper because such an instruction would "invade the province of the jury by commenting on the competency of or the weight to be given the testimony of any particular witness who testifies in a case." Taylor, supra, at 143. We decline the defendant's invitation, and find no error in the trial court's refusal to give such an instruction.
Linger contends State's Exhibit 3, a toolbox, was improperly admitted into evidence because it was not positively identified as belonging to and stolen from John Hitchel. The State responds that Exhibit 3 was sufficiently identified to be admissible.
The record reveals that John Hitchel was unable to positively identify State's Exhibit 3 as his stolen toolbox. Mr. Hitchel testified that "its either the same one or one just like." (Record p. 203) Hitchel noted that the tools recovered from the toolbox were of the same types and brands as those he had in his toolbox before it was stolen. (Record, p. 204-5, p. 207-8).
While the toolbox in question was not positively identified as the stolen item, the circumstantial evidence was...
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