Morgan v. State, No. 2-1180A383

Docket NºNo. 2-1180A383
Citation427 N.E.2d 1131
Case DateNovember 17, 1981
CourtCourt of Appeals of Indiana

Page 1131

427 N.E.2d 1131
Thomas J. MORGAN, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 2-1180A383.
Court of Appeals of Indiana, Second District.
Nov. 17, 1981.

Page 1132

Leroy K. New, Carmel, for appellant.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Appellant Thomas J. Morgan appeals from his convictions for theft (I.C. 35-43-4-2) (Burns Code Ed., Repl.1979) and carrying a handgun without a license (I.C. 35-23-4.1-3) (Burns Code Ed., Repl.1979).

On May 18, 1979 Officer Wurz of the Indianapolis Police Department parked his car behind a van which Morgan had just parked. Wurz exited his car and approached the van. Meanwhile, Morgan exited the van and told Wurz he was carrying a gun and motioned to his back trousers pocket. Wurz removed and confiscated the gun. Morgan was arrested on June 6, 1979 and charged with theft of the gun and carrying a handgun without a license.

The gun seized from Morgan had been stolen from Lester Rogers on April 29, 1979. Morgan did not have a license to carry a handgun.

Morgan raises three issues on appeal:

1) Whether the trial court erred in overruling Morgan's motion to suppress evidence;

Page 1133

2) Whether the evidence was sufficient to support the theft conviction; and

3) Whether the evidence was sufficient to support the conviction for carrying a handgun without a license.

I. Improper Admission of Evidence

Morgan argues the trial court erred in overruling his motion to suppress (motion) and allowing the gun to be admitted in evidence because the gun was found as a result of an illegal search and seizure. We find Morgan has failed to preserve any error as to this issue. When the gun was admitted into evidence, Morgan objected only on the basis the identifying marks on the gun were illegible. When a specific objection to the admissibility of evidence is made at trial any other possible objections are waived. Gee v. State, (1979) Ind., 389 N.E.2d 303. Morgan's failure to object at trial on the grounds that the evidence was the product of an illegal search and seizure therefore waives that issue on appeal. 1

Furthermore, assuming, arguendo, trial court error in admitting the gun into evidence, the error was harmless. Morgan volunteered the information he had a gun at a time when he had not been the subject of any police conduct. Morgan had parked the van and left it on his own accord. Officer Wurz was only approaching Morgan, without any conversation or gesture, when Morgan volunteered the information he was carrying a gun. The admission would not have been suppressible because it was not the product of the assumed unlawful search or seizure. Morgan's admission, coupled with the evidence Morgan did not have a license to carry a handgun, sustains his conviction for that offense. Therefore, since admission of the gun into evidence was not a prerequisite to his conviction, Wilson v. State, (1975) 164 Ind.App. 665, 330 N.E.2d 356 and was merely cumulative of his admission, any error is harmless. Clifton v. State, (1978) Ind.App., 375 N.E.2d 1126; Candler v. State, (1977) 266 Ind. 440, 363 N.E.2d 1233.

II. Sufficiency of the Evidence Theft

Morgan argues the evidence presented at trial was insufficient to sustain his theft conviction. In reviewing evidence for sufficiency, this court examines only the evidence most favorable to the verdict and the reasonable inferences which flow from that evidence. If the verdict is supported by substantial evidence of probative value, we will affirm. Griffin v. State, (1978) Ind.App., 372 N.E.2d 497.

The evidence inculpating Morgan was his possession of the gun approximately two and one-half weeks after it was stolen. While unexplained exclusive possession of recently stolen property is sufficient to support a theft conviction, Muse v. State, (1981) Ind., 419 N.E.2d 1302, we find unexplained exclusive possession of a handgun two and one-half weeks after the theft is not sufficient to support a conviction. In determining whether possession is "recent," we consider not only the length of time between the theft and the possession but also the...

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14 practice notes
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...of guilt of the crime of theft. Muse, supra. However as the Court of Appeals correctly stated in Morgan v. State, (1981) Ind.App., 427 N.E.2d 1131, "In determining whether possession is 'recent,' we consider not only the length of time between the theft and the possession but also the circu......
  • Tyson v. Trigg, No. IP 94-591 C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 6, 1994
    ...to be preserved on appeal is well-established in Indiana law. E.g., Wright v. State, 593 N.E.2d 1192, 1194 (Ind.1992); Morgan v. State, 427 N.E.2d 1131 (Ind.1981); Carter v. State, 634 N.E.2d 830 (Ind.App. 1994); Berry v. State, 574 N.E.2d 960 (Ind. App.1991). Although defendants typically ......
  • Prentice v. State, No. 1183S410
    • United States
    • Indiana Supreme Court of Indiana
    • February 18, 1985
    ...guilt from circumstantial evidence." Ward v. State, (1973) 260 Ind. 217, 220; 294 N.E.2d 796, 798. In Morgan v. State, (1981) Ind.App., 427 N.E.2d 1131, 1133, the court enunciated the following recency "In determining whether possession is 'recent,' we consider not only the length of time b......
  • Allen v. State, No. 59A01-0004-CR-123.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 7, 2001
    ...as whether they are readily salable and easily portable or difficult to dispose of and cumbersome)." Morgan v. State (1981) Ind. App., 427 N.E.2d 1131, 1133. Where the length of time between the crime and the possession is short, that fact itself makes the possession recent. Id. at 1133-34.......
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14 cases
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...of guilt of the crime of theft. Muse, supra. However as the Court of Appeals correctly stated in Morgan v. State, (1981) Ind.App., 427 N.E.2d 1131, "In determining whether possession is 'recent,' we consider not only the length of time between the theft and the possession but also the circu......
  • Tyson v. Trigg, No. IP 94-591 C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 6, 1994
    ...to be preserved on appeal is well-established in Indiana law. E.g., Wright v. State, 593 N.E.2d 1192, 1194 (Ind.1992); Morgan v. State, 427 N.E.2d 1131 (Ind.1981); Carter v. State, 634 N.E.2d 830 (Ind.App. 1994); Berry v. State, 574 N.E.2d 960 (Ind. App.1991). Although defendants typically ......
  • Prentice v. State, No. 1183S410
    • United States
    • Indiana Supreme Court of Indiana
    • February 18, 1985
    ...guilt from circumstantial evidence." Ward v. State, (1973) 260 Ind. 217, 220; 294 N.E.2d 796, 798. In Morgan v. State, (1981) Ind.App., 427 N.E.2d 1131, 1133, the court enunciated the following recency "In determining whether possession is 'recent,' we consider not only the length of time b......
  • Allen v. State, No. 59A01-0004-CR-123.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 7, 2001
    ...as whether they are readily salable and easily portable or difficult to dispose of and cumbersome)." Morgan v. State (1981) Ind. App., 427 N.E.2d 1131, 1133. Where the length of time between the crime and the possession is short, that fact itself makes the possession recent. Id. at 1133-34.......
  • Request a trial to view additional results

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