Maynard v. State

Decision Date17 June 1987
Docket NumberNo. 55A01-8604-CR-101,55A01-8604-CR-101
PartiesMichael MAYNARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. First District
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender, Richard Ranucci, Sp. Asst. Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of

Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Michael Maynard appeals his conviction for six (6) counts of theft. Remanded with instructions to correct the judgment as to Count Seven and affirmed in all other respects.

FACTS

In October of 1984, William Duvall, Harry Stock, and Michael Maynard rented a home on Flanagan Lane in Martinsville, Indiana. The three built a garage on the premises. On October 31, 1984, the trio stole a 1980 red Chevrolet truck from a restaurant parking lot. Stock and Maynard followed as Duvall drove the truck to Flanagan Lane where the three men dismantled the truck in the garage. On November 5, 1984, Duvall and Anthony Maynard stole a black and gray truck with attached camper from the Market Square Arena parking lot. Duvall drove the truck to Flanagan Lane where he removed numerous items of personal property. Duvall, Stock, and Maynard then dismantled the truck. Again, on November 18, 1984, Duvall and Stock stole a 1980 blue Chevrolet truck from the State Office Building parking lot. Duvall drove the truck home where he, Stock, and Maynard disassembled it. On November 26, 1984, Duvall, Stock, and Maynard stole a 1979 brown and tan Chevrolet truck from Lafayette Square mall. Duvall drove the truck, followed by Stock and Maynard, to Flanagan Lane where the three altered the appearance of the truck in order to sell the vehicle. On November 27, 1984, Duvall and Stock stole a 1984 GMC truck from the parking lot of Wishard Memorial hospital. Duvall, Stock, and Maynard disassembled the vehicle. They sold the engine after removing its identification numbers.

In October of 1984, Indiana State Police Officer Rick Lang stopped James Johanningsmeir for speeding. Lang asked Johanningsmeir if he knew anything about a "chop shop" operation located near Flanagan Lane. However, Johanningsmeir was unfamiliar with the operation. Lang told Johanningsmeir that if he obtained information regarding the operation and passed it along to the police he might receive consideration on the ticket. Later, Johanningsmeir met Jay Holman in a tavern who asked Johanningsmeir if he wanted to purchase a GMC engine for $250. Holman invited Johanningsmeir to Flanagan Lane to look at the engine. Johanningsmeir telephoned Officer Lang, related his conversation with Holman, and agreed to assist the police in their investigation.

Accompanied by Holman, Johanningsmeir went to Flanagan Lane. Johanningsmeir informed Duvall that he wanted to purchase an engine. Duvall quoted him a price on the engine and Johanningsmeir told Duvall he would get back in touch with him. Thereafter, Johanningsmeir telephoned Officer Lang and related this conversation.

Later, Johanningsmeir returned to Flanagan Lane. He and Duvall went to the garage where Johanningsmeir observed an engine on a hoist and a 1984 cream colored GMC truck with an odometer that showed approximately 3,000 miles. The two men then went to a nearby shed on the property where Johanningsmeir saw several new truck seats and windshields. Johanningsmeir told Duvall he would reach a decision regarding the engine within several days and, thereafter, reported to Officer Lang.

Several days later, Johanningsmeir, accompanied by an undercover police officer, returned to Flanagan Lane and purchased the engine. Johanningsmeir then delivered the engine to the police. Upon examination, the police determined the engine's identification numbers had been destroyed. Consequently, a search warrant was obtained for Flanagan Lane.

On November 30, 1984, Officer Joseph Wainscott conducted surveillance of the Flanagan Lane compound. Officer Wainscott observed Maynard and two other men dismantling a brown and tan Chevrolet truck. When the trio observed police cars approaching they attempted to flee but On December 10, 1984, the State filed an information against Maynard charging one (1) count of removing a vehicle identification number, five (5) counts of theft and one (1) count of conspiracy to commit theft. On April 9, 1985, the trial court granted the State's motion for joinder of defendants Michael Maynard, Anthony Maynard, and Harry Stock. On July 15, 1985, following a jury trial, the jury returned a verdict of not guilty of knowingly altering or removing a vehicle identification number and guilty of theft on the remaining six counts. Prior to dismissal of the jury, Maynard requested the trial court to set aside the verdict on count seven, which was denied. On September 23, 1985, Maynard was sentenced to six (6) terms of three (3) years imprisonment to be served consecutively. Thereafter, Maynard perfected this appeal.

were later arrested. During the search that followed, the police seized property specified in the warrant as well as numerous vehicle parts not listed in the warrant. The police observed several dismantled and reconstructed vehicles including a brown and tan Chevrolet truck with no interior parts and altered vehicle identification numbers. In addition, the police observed a truck with attached camper with an altered vehicle identification number, repainted and containing a 1974 passenger car engine. The confiscated property was transported to a body shop in an attempt to determine ownership of the vehicles and parts.

ISSUES

1. Whether the trial court erred in refusing to correct or reverse an erroneous verdict on count seven prior to discharge of the jury, thereby necessitating reversal.

2. Whether the trial court erred in denying Maynard's motion to suppress which was based upon the assertion that an illegal search and seizure occurred.

3. Whether the trial court erred in admitting into evidence testimony of a co-conspirator when the existence of a conspiracy allegedly had not been established.

4. Whether the trial court erred by granting the State's motion for joinder of the defendants.

5. Whether the trial court erred by denying Maynard's motion in limine which sought to exclude the admission of evidence regarding uncharged criminal activity.

6. Whether the trial court erred in denying Maynard's motion for mistrial which was based on the assertion that a State's witness improperly referred to an inculpatory statement of a co-defendant.

7. Whether the evidence was sufficient to sustain Maynard's convictions for theft under counts 3, 4, and 5.

8. Whether the trial court erred in admitting into evidence State's exhibits 14, 15, and 17, photographs of vehicle parts, over Maynard's objections as to relevancy and foundation.

9. Whether the trial court erred in refusing to declare a mistrial based on the allegation that a State's witness attempted to refer to a statement made by Maynard.

10. Whether the trial court erred by failing to instruct the jury of the elements of the offenses charged against Maynard.

11. Whether the trial court erred by ordering that the defendants share time for voir dire examination and opening argument and share peremptory challenges.

DISCUSSION AND DECISION
Issue One

Count Seven of the information filed against Maynard charged him with conspiracy to commit theft. However, during final instructions the trial court mistakenly stated that Count Seven invited conviction or acquittal for theft. During jury deliberations, Maynard objected to this instruction. The judge returned the jury to the courtroom and admonished them regarding the misinstruction on Count Seven. Despite this admonishment the jury returned a verdict on Count Seven finding Maynard guilty of theft. Thereafter, Maynard notified the trial judge of the incorrect verdict and filed a motion to set aside the verdict on Count Seven. Following a hearing, the trial court denied Maynard's motion.

It is a denial of due process of law to convict an accused of a charge not made. Hazlett v. State (1951), 229 Ind. 577, 583, 99 N.E.2d 743, 745. Where instructions are given or a verdict is rendered on a particular offense which is not the same as the offense charged reversal usually is warranted. See Sanford v. State (1971), 255 Ind. 542, 265 N.E.2d 701. The rationale of this rule may be simply summarized as providing that:

"(a) an affidavit must charge in direct and unmistakable terms the offense with which the defendant is accused; (b) if there is a reasonable doubt as to what offense(s) are set forth in the affidavit, that doubt should be resolved in favor of the defendant; and (c) where the defendant is convicted of an offense not within the charge, the conviction may not stand for the reason the defendant is entitled to limit his defense to those matters with which he stands accused."

Belcher v. State (1974), 162 Ind.App. 411, 413, 319 N.E.2d 658, 660. When a trial court receives a defective verdict form from a jury, the trial court should send the jury back for more deliberations to correct the defect. Manns v. State (1984), Ind.App., 459 N.E.2d 435, 436. Specifically, it is the duty of the trial judge to see that the verdict is in proper form and covers all the issues before discharging the jury. Id. "If the verdict is defective in substance it is a duty of the trial judge to have it amended by the jury before it is allowed to separate." Id.

In the present case, the verdict on Count Seven was defective in convicting Maynard of a crime for which he was not charged. Count Seven specifically charged Maynard with conspiracy to commit theft but the jury rendered a verdict of guilty of theft. Often, the remedy in this type of situation has been to reverse the conviction and remand the cause for a new trial. This action is required whenever it...

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13 cases
  • Williams v. State, 49A02-9806-CR-550.
    • United States
    • Court of Appeals of Indiana
    • June 29, 1999
    ...support for an inference of guilt of theft of that property. Kidd v. State, 530 N.E.2d 287, 288 (Ind.1988); Maynard v. State, 508 N.E.2d 1346, 1357 (Ind.Ct.App.1987). However, to permit an inference of guilt of the crime of theft there must be a showing that the defendant's possession was e......
  • Mack v. State, 39A01–1401–CR–6.
    • United States
    • Court of Appeals of Indiana
    • December 18, 2014
    ...Unlike here, the incriminating nature of the additionally seized evidence in Hewell was not readily apparent. See Maynard v. State, 508 N.E.2d 1346, 1353–54 (Ind.Ct.App.1987) (distinguishing Hewell on the grounds that the evidence seized “which was not listed in [the] warrant ... was not re......
  • Cain v. State, 79A02-9012-CR-00758
    • United States
    • Court of Appeals of Indiana
    • July 2, 1992
    ...and conspiracy. He concedes that a conviction is sustainable solely upon the evidence of a confessed accomplice. Maynard v. State (1987) 1st Dist.Ind.App. 508 N.E.2d 1346, 1354, trans. denied. However, he argues that the testimony of Shepard was incredible, and that, aside from his testimon......
  • Daniel v. State, 49S00-8812-CR-982
    • United States
    • Supreme Court of Indiana
    • December 10, 1991
    ...the evidence most favorable to the trial court's decision together with any uncontradicted adverse evidence, citing Maynard v. State (1987), Ind.App., 508 N.E.2d 1346. Appellant, however, asserts it clearly is the majority position that such an advisement renders choice illusory and consent......
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