Miller v. State, 879S223

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

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, 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 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 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, (1980) Ind., 398 N.E.2d 1260, 1264.

A reasonable inference could be drawn from the aforestated facts that the defendant and Fields were acting in consort, that the property was in their joint possession and control and that they jointly offered to barter it to Farthing.

The inference of guilt of the defendant is also strengthened by his attempted escape when the police sought to apprehend him. Thomas v. State, (1970) 254 Ind. 561, 563, 261 N.E.2d 224, 225.

It is clear that there was presented to the jury substantial probative evidence from which a reasonable man could find not only the requisite possession by the defendant but the other requisite elements of the crime as well, all beyond a reasonable doubt.

Defendant has assigned several issues with respect to the legality of his having been sentenced as an habitual criminal, one of which compels us to order the sentence vacated and to remand the cause for re-trial upon the issue of habitual offender. See State v. McMillan, (1980) Ind., 409 N.E.2d 612, 618.

The information for theft was filed on February 24, 1978. Following several continuances and an amendment to the information, the defendant was arraigned and entered a plea of not guilty on April 18, 1978. The information contained no allegations with respect to prior offenses.

On September 15, 1978, under the same cause number, the State filed what it denominated as "Count No. II Information for Habitual Offender I.C. 35-50-2-8," which alleged prior convictions for burglary in 1956 and 1967.

On March 30, 1979, the trial commenced upon the theft charge and was concluded on April 2, with a verdict of guilty. Immediately thereafter, the defendant was arraigned on the habitual offender count and trial thereon was set for the following morning, April 3, 1979.

While the theft and habitual criminal charges were pending in the Madison County Superior Court, the defendant also stood charged in Howard County with a count of burglary and a count of rape. He had been convicted upon those counts one week prior to the trial in the case before us but had not yet been sentenced.

On April 3, 1979, immediately before proceeding with the habitual offender proceedings, the State was allowed over the defendant's objection to amend the habitual offender count to include the aforementioned convictions for rape and burglary. The defendant contends that it was error for the trial court to permit that amendment to include counts upon which he had not been sentenced, and we agree.

Ind. Code...