Martin v. State, 3--373A25

• Decision Date: 23 August 1973
• Docket Number: No. 3--373A25,3--373A25
• Citation: 157 Ind.App. 380,300 N.E.2d 128
• Parties: Michael L. MARTIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 128

300 N.E.2d 128

157 Ind.App. 380

Michael L. MARTIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--373A25.

Court of Appeals of Indiana, Third District.

Aug. 23, 1973.

Fred R. Jones, Goodrich & Jones, Plymouth, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

Defendant-appellant Michael L. Martin (Martin) was originally charged by affidavit on October 14, 1971, with the crime of theft. On May 19, 1972, an amended affidavit in two counts alleging theft and 'theft of stolen property' was filed and trial by jury was commenced on July 31, 1972. At the close of all of the evidence, defendant Martin moved for a directed verdict. Such motion was overruled by the trial court. Thereafter, on August 1, 1972, a verdict of guilty on both counts was returned.

The court subsequently found that the jury's verdict on the count alleging theft excluded its finding of guilty as to theft of stolen property. Consequently, the verdict on the latter count was stricken from the record.

On August 15, 1972, the trial court overruled Martin's motion for venire facias de novo and also his motion in arrest of judgment. On the same day Martin was sentenced to the custody of the Indiana Department of Correction for a period of from one to ten years, fined $10 and costs, and was also disfranchised and rendered incapable of holding office of public trust for a period of five years.

Following the overruling of Martin's subsequent motion to correct errors on January 9, 1973, this appeal was perfected.

The evidence most favorable to the State indicates that Officer Thomas R. Wilson of the Plymouth Police Department was on routine patrol on the morning of October 13, 1971, and that he was accompanied by Dane Hoffien, a civilian friend.

At approximately 5 A.M., on October 13, 1971, during the course of Wilson's patrol, he noticed a large tan box protruding from the trunk of a car which passed in his vicinity. Further, both Wilson and Hoffien observed that one William Talbott was a passenger in the car although neither were able to identify the driver. Wilson then proceeded to follow the car but eventually lost sight of it. Having previous knowledge that the vehicle in question was owned by Michael Martin, Wilson and Hoffien drove directly to Martin's residence whereupon Wilson observed that the car they had been following was parked in an alley behind the house. With the aid of his spotlight, Wilson could see that the car's trunk lid was open. Shortly thereafter, Wilson observed Martin run to the car and slam the trunk lid. Martin appeared to look in Wilson's direction, then turned, and ran away.

Upon a search of the immediate area, Wilson discovered a bill changer with a smaller coin changer attached. The device was found lying in the grass on the opposite side of the alley from the Martin residence. Wilson recognized the changer as being of the type he had seen in a local laundromat. A later investigation at the Clean Quick Lanundry revealed that such a device was, in fact, missing from the premises. Pry marks were found on the wall where it had once been and the electrical wire servicing the machine appeared to have been cut.

The device which was recovered by the police was later identified by the laundromat owner as being the changer which was maintained on the premises. The owner also estimated its value as being approximately $1,000.

The principal issue presented by this appeal is whether there was sufficient evidence to prove that Martin committed the crime of theft.

Martin contends that there is no evidence to establish that a theft actually occurred and, therefore, cites a failure to prove the 'corpus delicti.' Further, he asserts that there was no evidence of control or possession of the bill changer or that such control was not authorized by the owner. Although Martin concedes that circumstantial evidence can be the basis of a proper conviction, he contends that such evidence presented by the State, in the instant case, was not so clear and convincing that guilt was established beyond a reasonable doubt. By reason of the above, Martin concludes that the verdict of the jury was contrary to law.

We are mindful that only where there is a lack of substantial evidence upon an essential element of the alleged crime, or where the evidence is without conflict and indicates only one reasonable conclusion and the trier of fact has reached a contrary result, will a verdict be disturbed by reason of insufficiency of the evidence. Wojcik v. State (1965), 246 Ind. 257, 260, 204 N.E.2d 866.

Further, in reviewing the sufficiency of the evidence to suppot conviction, the Court of Appeals may not weigh the evidence or determine the credibility of witnesses. We may only look to the evidence and the reasonable inferences flowing therefrom which support the finding of the trial court. Shank v. State (1972), Ind.Ct.App., 289 N.E.2d 315, 33 Ind.Dec. 527. Moreover, the conviction must be affirmed if there is evidence of probative value susceptible to the inference that the defendant was guilty beyond a reasonable doubt. Shank v. State, supra; McKinley v. State (1972), Ind., 281 N.E.2d 91; Harris v. State (1972), Ind., 281 N.E.2d 85.

We are also cognizant of the fact that a criminal conviction may rest entirely upon circumstantial evidence. Gunn v. State (1972), Ind., 281 N.E.2d 484; Vaughn v. State (1971), Ind., 266 N.E.2d 219.

In the case at bar, the evidence adduced at trial is totally circumstantial. Such evidence indicates that Martin approached a car in the alley behind his...