Miller v. State, No. 879S223

Docket NºNo. 879S223
Citation417 N.E.2d 339, 275 Ind. 454
Case DateMarch 13, 1981
CourtSupreme Court of Indiana

Page 339

417 N.E.2d 339
275 Ind. 454
Paul E. MILLER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 879S223.
Supreme Court of Indiana.
March 13, 1981.

[275 Ind. 455]

Page 340

Joseph R. Kilmer, Pendleton, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of the theft of property of Danny Turner, Ind. Code § 35-43-4-2 (Burns 1979), and of being an habitual offender, Ind. Code § 35-50-2-8 (Burns 1979). This direct appeal challenges the sufficiency of the evidence to sustain the verdict upon the theft and the legality of his having been sentenced as an habitual offender.

Defendant has assigned as error the court's denial of his motion for judgment at the conclusion of the State's evidence in chief, but, error, if any, with respect to that ruling was waived when he elected to present evidence in his defense. Love v. State, (1980) Ind., 400 N.E.2d 1371, 1374. However, the same issue is presented upon his challenge to the sufficiency to sustain the verdict. The evidence adduced at trial supportive of the verdict disclosed that the premises of Danny Turner had been burglarized between 7:30 a. m. and 7:45 p. m. on February 23, 1978 in Kokomo, Indiana. Officer Williams, of the Anderson, Indiana Police Department, was investigating that crime, and at 8:15 p. m. of that day he was at the Olympia Bar, in Anderson,[275 Ind. 456] where James Farthing, who was known to be a dealer in stolen property, was employed as a bartender. While there, Williams observed Farthing, the defendant and Gale Fields engaging in conversation; and he observed either the defendant or Fields say that he did not want to take "the stuff" back to Kokomo and Farthing to say that he was not interested in buying "the stuff." The three then went to the parking lot.

Williams summoned assistance by radio, and Officers Prizer and Stanley responded. Upon or shortly after their arrival, they saw the defendant, Fields and Farthing standing next to a blue Pontiac Tempest automobile. The three peered into the vehicle, entered it and began to talk.

After some brief period of time, Farthing got out of the vehicle and re-entered the Bar, and the automobile, with Fields and the defendant therein, was maneuvered around the parking lot to a point behind a parked housetrailer. One of the two occupants of the vehicle exited, removed a sewing

Page 341

machine and two stereo-speakers therefrom and re-entered the automobile, abandoning the sewing machine and speakers. The automobile was then driven to the public street. The observers could not discern what the two were saying during the aforesaid activity, but they overheard their voices, which were raised, as if in argument.

When the automobile exited from the parking lot into the street, the defendant got out but walked in the same direction as the car was moving. Prizer and Stanley approached him and identified themselves as policemen. Thereupon the defendant ran but was apprehended by the officers. Fields, while continuing in the automobile was also apprehended by other police officers who had been summoned.

The automobile from which Defendant had just taken leave contained a number of items of stolen property, including a television set and the tape recorder identified at trial as having been taken in the aforementioned Kokomo burglary. The vehicle also contained property which belonged to the defendant, and the license plate displayed upon the automobile had been issued to "Paul E. and/or J. L. Miller."

The statute under which the defendant was charged and convicted [275 Ind. 457] provides that a person commits a theft if he knowingly or intentionally exerts unauthorized control over the property of another person with intent to deprive the other person of any part of its value or use; and it is the defendant's sole contention upon the sufficiency issue that there was no evidence that he exerted any control over the Turner property, but we disagree.

"Upon a review for sufficient evidence this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed." (Citation omitted). "In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." Loyd v. State,...

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74 practice notes
  • Powers v. State, No. 23A01-9212-PC-406
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Marzo 1993
    ...441 N.E.2d 1355; Morgan v. State (1982), Ind., 440 N.E.2d 1087; Graham v. State (1982), Ind., 435 N.E.2d 560; Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339; Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799; Shaw v. State (1965), 247 Ind. 139, 211 N.E.2d 172; Weatherford v. State ......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Diciembre 1982
    ...can not stand when the case was tried and submitted on two theories, one bona fide and the other not." Miller v. State, (1981) Ind., 417 N.E.2d 339, 343, citing Bachellar v. Maryland, (1970) 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570, and Williams v. North Carolina, (1942) 317 U.S. 287, 63......
  • Gargliano v. State, No. 71
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1993
    ...Parte Peterson, 466 So.2d 984, 987 (Ala.1984); State v. Wright, 198 Conn. 273, 502 A.2d 911, 913 n. 2 & 917, n. 5 (1986); Miller v. State, 275 Ind. 454, 417 N.E.2d 339, 342 (1981); People v. Preuss, 436 Mich. 714, 461 N.W.2d 703, 705-07 (1990); Fitzgerald v. State, 722 S.W.2d 817, 821 (Tex.......
  • Lowery v. State, No. 02S00-8606-CR-591
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Diciembre 1989
    ...judgment on the evidence waives his right to challenge that denial. Gajdos v. State (1984), Ind., 462 N.E.2d 1017; Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339; Love v. State (1980), 272 Ind. 672, 400 N.E.2d 1371. See also Dickson v. State (1988), Ind., 520 N.E.2d 101 (if evidence i......
  • Request a trial to view additional results
74 cases
  • Powers v. State, No. 23A01-9212-PC-406
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Marzo 1993
    ...441 N.E.2d 1355; Morgan v. State (1982), Ind., 440 N.E.2d 1087; Graham v. State (1982), Ind., 435 N.E.2d 560; Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339; Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799; Shaw v. State (1965), 247 Ind. 139, 211 N.E.2d 172; Weatherford v. State ......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Diciembre 1982
    ...can not stand when the case was tried and submitted on two theories, one bona fide and the other not." Miller v. State, (1981) Ind., 417 N.E.2d 339, 343, citing Bachellar v. Maryland, (1970) 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570, and Williams v. North Carolina, (1942) 317 U.S. 287, 63......
  • Gargliano v. State, No. 71
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1993
    ...Parte Peterson, 466 So.2d 984, 987 (Ala.1984); State v. Wright, 198 Conn. 273, 502 A.2d 911, 913 n. 2 & 917, n. 5 (1986); Miller v. State, 275 Ind. 454, 417 N.E.2d 339, 342 (1981); People v. Preuss, 436 Mich. 714, 461 N.W.2d 703, 705-07 (1990); Fitzgerald v. State, 722 S.W.2d 817, 821 (Tex.......
  • Lowery v. State, No. 02S00-8606-CR-591
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Diciembre 1989
    ...judgment on the evidence waives his right to challenge that denial. Gajdos v. State (1984), Ind., 462 N.E.2d 1017; Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339; Love v. State (1980), 272 Ind. 672, 400 N.E.2d 1371. See also Dickson v. State (1988), Ind., 520 N.E.2d 101 (if evidence i......
  • Request a trial to view additional results

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