Malone v. State, 82A01-8906-CR-199

• Decision Date: 18 December 1989
• Docket Number: No. 82A01-8906-CR-199,82A01-8906-CR-199
• Citation: 547 N.E.2d 1101
• Parties: Michael G. MALONE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1101

547 N.E.2d 1101

Michael G. MALONE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 82A01-8906-CR-199.

Court of Appeals of Indiana,

First District.

Dec. 18, 1989.

Transfer Denied March 23, 1990.

John D. Clouse, John P. Brinson, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Michael G. Malone appeals his conviction of three counts of theft. The State alleged that Malone, as executive director of the Evansville Community Action Program (CAPE), exerted unauthorized control over labor and services belonging to CAPE, on three separate occasions, with the intent to deprive CAPE of the value or use of the labor and services.

We affirm.

Malone challenges the adequacy and specificity of the indictments and the sufficiency of the evidence to sustain the jury's verdicts.

I.

Malone contends the trial court erred in denying his motion to dismiss the indictments because the facts alleged do not constitute a crime and the indictments, which do not specify in what way Malone's conduct was unauthorized, do not state the offense with sufficient clarity.

We will not speculate as to the basis of Malone's first allegation of error. Malone simply has not given us enough either by way of argument or authority to discern his contentions. Accordingly, to the extent Malone is making two distinct arguments concerning the adequacy of the indictments, we deem his first contention, that the facts alleged do not constitute a crime, waived. Ind. Rules of Procedure, Appellate Rule 8.3(A)(7); Goad v. State (1987), Ind., 516 N.E.2d 26, 28.

Malone's second contention, that the indictments are fatally defective because they do not specify the definition of "unauthorized" relied upon by the State, is also without merit. The notice requirement of Art. 1, Sec. 13 of the Indiana Constitution provides a defendant with the opportunity to know the accusations against him so that he may anticipate the proof and prepare a defense in advance of trial. Head v. State (1982), Ind., 443 N.E.2d 44, 51. However, the formal and substantive requirements of a valid indictment are defined in IND. CODE 35-34-1-2 which was enacted to effectuate the constitutional guarantee. Id. An indictment must contain all of the essential elements of the crime charged, see, id; Brown v. State (1980), Ind.App., 403 N.E.2d 901, 906, trans. denied, but other details may be omitted and a motion to quash properly denied unless the indictment is so uncertain and indefinite that the nature of the charge cannot be ascertained. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686, 690. Accord, Head, supra (reversal not warranted unless defendant otherwise misled as to nature of charge against him) and Simmons v. State (1987), Ind., 504 N.E.2d 575, 580.

The indictments at issue here did not omit an essential element; they alleged in the language of the statute that Malone's control over particular labor and services was unauthorized. Generally, an indictment in language paralleling the words of the statute is sufficient. See, Davis v. State (1985), Ind.App., 476 N.E.2d 127, trans. denied; Ralston v. State (1980), Ind.App., 412 N.E.2d 239, trans. denied. There is no need for further description of methods employed in committing the crime, Davis, supra; Moody v. State (1983), Ind., 448 N.E.2d 660, and the fact that the indictments also recited the alleged means by which Malone came to exert unauthorized control over labor and services belonging to CAPE is mere surplusage. See, Jones v. State (1984), Ind.App., 467 N.E.2d 1236, 1242.

The indictments involved here contained enough to apprise Malone of the allegations he must be prepared to meet and put him in a position to plead double jeopardy to any subsequent charge of the same offense. Nothing more is required. Cf., Simmons, 504 N.E.2d at 580.

II.

Malone also argues that the evidence is insufficient to establish that CAPE is a person within the meaning of the statute and that his use of labor and services belonging to CAPE was unauthorized.

Malone's contention with respect to CAPE's status is simply that the State failed to demonstrate that CAPE was a corporation, as the State alleged. The appellant in Liford v. State (1975), 164 Ind.App. 349, 328 N.E.2d 443, trans. denied raised a similar contention. In that case, this court, citing Smith v. State (1867), 28 Ind. 321 in which the existence of the company as a corporation was proved orally as a fact solely by its given name, reiterated that the State need not prove the existence of the victim as a de jure corporation; it need only show a de facto corporation.

The record in the present case establishes, in addition to the witness's perception that the program may be incorporated, that CAPE is run by a board of directors with officers. The program receives local, state, and federal funding and operates programs for the poor and various minorities including Job Fill, Head Start, Senior Aids, Foster Grandparents, Project Safe, weatherization and bus programs. This evidence supports the reasonable inference that CAPE was in fact functioning as a corporation, regardless of the corporation's legitimacy. As in Liford, supra, it is sufficient to establish that CAPE was a person within the meaning of the theft statute, I.C. 35-43-4-2.

Malone's second sufficiency claim concerns the proof offered on the element of authorization. The State alleged by count I that on or about June 6 and 7, 1985, Malone knowingly exerted unauthorized control over property of CAPE, to-wit: labor and services involved in the installation of a roof vent and attic fan at his personal residence, with intent to deprive CAPE of the use and benefit of the employees' labor. The State's evidence showed that Malone, as executive director of CAPE, directed a work crew assigned to a project at 716 Sweetser to his home to install a roof vent and attic fan. CAPE paid the employees for eight hours of work on those two days. Malone directed the general foreman of the crew to bill the labor to whatever project they were working on at the time.

In count II, the State alleged that Malone, on or about August 16, 1985, knowingly exerted unauthorized control over CAPE's labor and services involved in moving washing machines to Malone's personal residence, again with the statutory intent to deprive. The evidence offered by the State showed that Malone directed a maintenance employee assigned to the garage and another individual who was not an employee of CAPE to remove unwanted washing machines from his home and move in another unit. Both individuals were issued checks from CAPE, contract forms showing the hourly rate to be paid were completed by Malone, and the employee showed on his timecard that he had worked eight hours that Friday. Later, the timecard was altered to show those hours were worked on a Saturday. The employee did not make the alteration. In addition, the evidence demonstrated that the checks came directly from Malone rather than through customary channels within the office.

Finally, with respect to the third count, the State alleged Malone employed the labor and services of CAPE...