Martin v. State, No. 3--373A25

Docket NºNo. 3--373A25
Citation157 Ind.App. 380, 300 N.E.2d 128
Case DateAugust 23, 1973
CourtCourt of Appeals of Indiana

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.

Page 129

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

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

[157 Ind.App. 381] 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.

Page 130

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[157 Ind.App. 382] 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...

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12 practice notes
  • Linnemeier v. State, No. 3--474A72
    • United States
    • Indiana Court of Appeals of Indiana
    • July 10, 1975
    ...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 Appellant concedes that the State has established that the boat in question was withi......
  • Carpenter v. State, No. 1--673A124
    • United States
    • Indiana Court of Appeals of Indiana
    • February 14, 1974
    ...leading to only one reasonable conclusion and the trier of fact has reached a contrary result. Martin v. State (1973), Ind.Ct.App.,300 N.E.2d 128; Wojcik v. State (1965), 246 Ind. 257, 204 N.E.2d [159 Ind.App. 379] In the instant case, it was incumbent on the State to prove that appellant (......
  • D.B., In re, No. 71A05-9406-JV-211
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1995
    ...elements of the crime of criminal recklessness remained with the State throughout the entire trial. Martin v. State (1973), Ind.App., 300 N.E.2d 128. The burden of proof on the prosecution never shifted to the defendant in this case, Smith v. State (1969), Ind., 249 N.E.2d 493; and based up......
  • Gebhard v. State, No. 1-685A153
    • United States
    • Indiana Court of Appeals of Indiana
    • October 23, 1985
    ...evidence warrants mere suspicion, it is insufficient. Briscoe v. State (1979), 180 Ind.App. 450, 388 N.E.2d 638; Martin v. State (1973), 157 Ind.App. 380, 300 N.E.2d 128. An opportunity to commit a crime is also insufficient to convict. Briscoe, supra; Martin, Criminal attempt is not charge......
  • Request a trial to view additional results
12 cases
  • Linnemeier v. State, No. 3--474A72
    • United States
    • Indiana Court of Appeals of Indiana
    • July 10, 1975
    ...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 Appellant concedes that the State has established that the boat in question was withi......
  • Carpenter v. State, No. 1--673A124
    • United States
    • Indiana Court of Appeals of Indiana
    • February 14, 1974
    ...leading to only one reasonable conclusion and the trier of fact has reached a contrary result. Martin v. State (1973), Ind.Ct.App.,300 N.E.2d 128; Wojcik v. State (1965), 246 Ind. 257, 204 N.E.2d [159 Ind.App. 379] In the instant case, it was incumbent on the State to prove that appellant (......
  • D.B., In re, No. 71A05-9406-JV-211
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1995
    ...elements of the crime of criminal recklessness remained with the State throughout the entire trial. Martin v. State (1973), Ind.App., 300 N.E.2d 128. The burden of proof on the prosecution never shifted to the defendant in this case, Smith v. State (1969), Ind., 249 N.E.2d 493; and based up......
  • McCants v. State, No. 49S00-9606-CR-453
    • United States
    • Indiana Supreme Court of Indiana
    • November 3, 1997
    ...were acquainted with the rape victim, who was found in a subsequent trial to have been raped by the defendant. 157 Ind.App. at 358, 300 N.E.2d at 128. Haak and Mooberry are clearly distinguishable from the case at bar in that defendant presented no affirmative evidence that the State's witn......
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