Linnemeier v. State

• Decision Date: 10 July 1975
• Docket Number: No. 3--474A72,3--474A72
• Citation: 165 Ind.App. 31,330 N.E.2d 373
• Parties: David W. LINNEMEIER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 373

330 N.E.2d 373

165 Ind.App. 31

David W. LINNEMEIER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--474A72.

Court of Appeals of Indiana, Third District.

July 10, 1975.

John F. Surbeck, Jr., Chapman & Coslow, Fort Wayne, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant David W. Linnemeier (Linnemeier) was convicted of the crime of theft ¹ following a trial to the court. His motion to correct errors was overruled by the trial court, and this appeal followed.

Appellant first asserts that certain evidence regarding a conversation between himself and two officers of the Allen County Sheriff's Department was erroneously admitted over his objection. Such conversation transpired at Linnemeier's place of business and consisted, in part, of one of the officers informing appellant that appellant had sold him a stolen boat, and inquiring if restitution of the purchase price would be made. Linnemeier stated that he would refund a commission he received for the sale of such boat, but would be unable to refund the entire purchase price, and then telephoned his attorney. After conversing with his attorney, appellant asked the officer to contact him again 'in a couple of days.'

At trial, appellant objected to the introduction in evidence of the substance of this conversation for the reason that he had not been advised of his constitutional rights by the officers prior to such conversation as required by the case of Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The record of this cause discloses that such conversation occurred at a time when appellant was not under investigation for any involvement in any crime by such officers and that such officers were acting only in an individual capacity. Further, the record demonstrates that appellant's freedom was not restricted in any manner during the brief conversation in question. Upon these facts, the warnings required by Miranda were not required, and the substance of such conversation was properly admitted over the objection voiced by appellant. United States ex rel. Sanney v. Montanye (2d Cir., 1974), 500 F.2d 411; Iverson v. State of North Dakota (8th Cir., 1973), 480 F.2d 414, cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335; Hall v. United States (2d Cir., 1969), 421 F.2d 540, cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398; Dillon v. State (1971), 257 Ind. 412, 275 N.E.2d 312.

Appellant next questions the sufficiency of the evidence adduced at trial to support his conviction. It should be pointed out that when questions concerning the sufficiency of evidence are presented on appeal, this court may consider only that evidence which is most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Further, it is not our function to weigh the evidence or determine the credibility of witnesses. McAfee v. State (1973), Ind., 291 N.E.2d 554. It has been held that a conviction may be sustained upon circumstantial evidence alone so long as the evidence is of such probative value that a reasonable inference of guilt beyond a reasonable doubt may be drawn therefrom. Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666. A conviction which rests in whole or in part upon such evidence will not be reversed unless this court can state as a matter of law that reasonable persons, whether they be the jury or, as in the present case the trial court, could not form inferences with regard to each material element of the offense so as to ascertain a defendant's guilt beyond a reasonable doubt. Guyton v. State (1973), Ind.App., 299 N.E.2d 233.

The statements of fact and reasonable inferences therefrom most favorable to the State in the record of this cause disclose that a 1970 model 'Starcraft 21 foot Chieftain boat' and a boat trailer belonging to one Ralph McCreary disappeared on August 14, 1971, from Mr. McCreary's place of employment at Shamokin Dam, Pennsylvania. On August 15, 1971, Mr. Richard Troutman, an Allen County, Indiana, Deputy Sheriff, observed this boat on the premises of 'Summit City Marine.' Troutman was interested in purchasing such a boat, and stopped to examine it.

Thereafter, Troutman returned to 'Summit City Marine' and negotiated the purchase of the boat and trailer with appellant-Linnemeier. Upon being asked how the boat would 'trailer', appellant responded that 'it trailers real well' and that he 'brought it back from Pennsylvania' himself.

Several months after purchasing such boat, Troutman discovered it had been stolen. He again returned to 'Summitt City Marine', and at this time the conversation occurred which was the subject of the first issue discussed herein. During such conversation, appellant stated that the boat had been brought to Indiana from 'the Great Lakes area, Toledo.'

At the time of trial, Linnemeier stated that the boat was delivered to him by a third party.

The elements of the crime of theft which are applicable to the case at bar, and which the State must have proved for Linnemeier's conviction to be sustained, are that he knowingly obtained or exerted unauthorized control over the boat and trailer in question with the intent to deprive the owner of the use thereof. See: Martin v. State (1973), Ind.App., 300 N.E.2d 128; IC 1971, 35--17--5--3, Ind.Ann.Stat., § 10--3030 (Burns Supp.1974).

Appellant concedes that the State has established that the boat in question was within his control. Further, the evidence reveals that such possession by appellant was without the consent of the owner and, therefore, unauthorized.

The central question raised by appellant with regard to the sufficiency of the evidence in this cause is whether the State has shown that he had the requisite knowledge that his possession of the boat was unauthorized. App...