Miller v. State, No. 24A01-8602-CR-29

Docket NºNo. 24A01-8602-CR-29
Citation496 N.E.2d 592
Case DateAugust 19, 1986
CourtCourt of Appeals of Indiana

Page 592

496 N.E.2d 592
Kipley MILLER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 24A01-8602-CR-29.
Court of Appeals of Indiana,
First District.
Aug. 19, 1986.

Jack R. Shields, Shields & Jones, Batesville, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Presiding Judge.

Appellant-defendant Kipley Miller (Miller) appeals his conviction after a bench trial for the offense of receiving payment while indebted, a class D felony.

We reverse.

A summary of the facts shows that Miller contracted with Estil Spurlock in 1977 to build the Spurlocks a house. During construction, Miller accepted three installment payments totalling $28,900 from the Spurlocks but did not inform them that he had not yet paid for all the materials used in building their home. Miller subsequently declared bankruptcy, leaving the Spurlocks' house unfinished. Zeigler Building Materials, a supplier to the Spurlock construction, perfected a mechanic's lien on the Spurlocks' property. Miller was subsequently charged and convicted pursuant to IND.CODE 32-8-3-15 on June 10, 1985, and brings this appeal with three issues, the first of which determines this case: whether the evidence on the mens rea element is sufficient to support the conviction.

Miller argues that I.C. 32-8-3-15 requires a specific mens rea element which is

Page 593

absent from the statute and charging information. He alleges the State failed to offer evidence on this element and points out the statute has been amended to specifically require criminal intent since his conviction. See I.C. 32-8-3-15 (as amended by Acts 1978 and 1983).

In 1977, as relevant here, I.C. 32-8-3-15 read:

Receiving payment while indebted--Failure to give notice of indebtedness--Penalty.--Any person, firm or corporation who, as contractor or subcontractor or otherwise, shall have performed labor, supplied services or furnished material or machinery in the construction, reconstruction, erection, repair or remodeling of any building, structure or any other work of any description whatsoever, and who shall accept payment for the labor, services, material or machinery so furnished and supplied, and who, at the time of receiving such payment, is indebted to another for labor, including the cost of renting or leasing construction and other equipment and tools, whether or not an operator is also provided by the lessor, services, material or machinery used or employed in the construction, reconstruction, erection, repair or remodeling of such building or structure, and who at the time of receiving such payment shall fail or refuse to notify, in writing, the person, firm or corporation from whom such payment was received, of the existence of such outstanding indebtedness, and if the person, firm or corporation from whom such payment was received, shall suffer loss thereby, such person, firm or corporation, or the responsible officer thereof so accepting such payment shall be guilty of a felony and, upon conviction therefor, shall be fined in any sum not exceeding one thousand dollars [$1,000], or imprisoned in the Indiana state prison for not less than one year nor more than five years, or both such fine and imprisonment, in the discretion of the court.

It is fundamental in criminal law that an offense must contain both mens rea (guilty mind) and actus reus (voluntary conduct) elements. Rogers v. State, (1978) 267 Ind. 654, 373 N.E.2d 125; Sills v. State, (1984) Ind., 463 N.E.2d 228, 241 (See Givan, C.J., concurring in result). Further, criminal offenses are traditionally classified as either malum in se, i.e. inherently evil as adjudged by society, or malum prohibitum, i.e. wrong only because prohibited by legislation. Gregory v. State, (1973) 259 Ind. 652, 291 N.E.2d 67, 68.

In Indiana, proof of a mens rea element is rarely excused, and the narrow exceptions tend to involve certain malum prohibitum regulatory offenses. E.g.: Groff v. State, (1908) 171 Ind. 547, 85 N.E. 769 (adulterated food offense); Sewell v. State, (1983) Ind.App., 452 N.E.2d 1018 (traffic offense). However, like malum in se crimes, malum prohibitum offenses usually require proof of a mens rea. 8 I.L.E. Criminal Law Sec. 10 (1971). See e.g.: Noble v. State, (1967) 248 Ind. 101, 223 N.E.2d 755; Johnson v. State, (1968) 251 Ind. 17, 238 N.E.2d 651, 653. But see: Gregory, 291 N.E.2d at 68.

Many Indiana cases have construed mens rea elements into criminal statutes which omit language of culpability. See e.g.: Noble, supra (false attestation as notary); Newton v. State, (1983) Ind.App., 456 N.E.2d 736 (child molesting); Gregory, supra (robbery); Satterfield v. State, (1984) Ind.App., 468 N.E.2d 571 (possession of bombs) quoting Malich v. State, (1929) 201 Ind. 587, 169 N.E. 531 (prohibition). We choose to follow these cases and construe knowledge and intent as statutory elements of the felony of which Miller was convicted. In support, we also note that when a criminal statute omits words of culpability, the legislative intent determines whether a mens rea element should be construed. Gregory, supra; LaFave Criminal Law Sec. 90, p. 219. Here, I.C. 32-8-3-15 is a criminal statute which derived from the common law offense of fraud. 14 I.L.E. Fraud Sec. 3 (1959). Our courts favor the requirement of a mens rea in offenses from common law derivations. See: Gregory, 291 N.E.2d at 68; Newton,

Page 594

456 N.E.2d at 739-740. See also: 22 C.J.S. Criminal Law Sec. 30, p. 104.

It is well established that we will not reweigh evidence and will affirm a conviction when probative evidence supports a reasonable inference of guilt beyond a reasonable doubt on each element of an offense. Newton, 346 N.E.2d at 742.

However, we have read the record and agree with Miller that no evidence of criminal intent was adduced. This element is often inferred from a defendant's conduct and the surrounding circumstances. E.g.: Shields v. State, (1983) Ind.App., 456 N.E.2d 1033, 1039. However, we are unwilling to affirm a felony conviction on an offense which has its roots in fraud, 14 I.L.E. Fraud Sec. 3, when no intent to defraud has been proven beyond a reasonable doubt. In fact, no evidence supports this element in the present case and we are asked to infer it from Miller's conduct and the circumstances. This case is different from Gregory, supra, or Newton,...

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1 practice notes
  • Miller v. State, No. 24S01-8612-CR-1052
    • United States
    • Indiana Supreme Court of Indiana
    • December 30, 1986
    ...the information was defective in that it failed to include the essential element of intent to defraud. Miller v. State (1986), Ind.App., 496 N.E.2d 592 (Ratliff dissenting). We find the Court of Appeals incorrect in both of its holdings and, accordingly, vacate the Court of Appeals' opinion......
1 cases
  • Miller v. State, No. 24S01-8612-CR-1052
    • United States
    • Indiana Supreme Court of Indiana
    • December 30, 1986
    ...the information was defective in that it failed to include the essential element of intent to defraud. Miller v. State (1986), Ind.App., 496 N.E.2d 592 (Ratliff dissenting). We find the Court of Appeals incorrect in both of its holdings and, accordingly, vacate the Court of Appeals' opinion......

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