Prentice v. State

• Decision Date: 18 February 1985
• Docket Number: No. 1183S410,1183S410
• Citation: 474 N.E.2d 496
• Parties: Theodis PRENTICE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 496

474 N.E.2d 496

Theodis PRENTICE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1183S410.

Supreme Court of Indiana.

Feb. 18, 1985.

Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for appellant (defendant below); Timothy M. Swan, Merrillville, of counsel.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

HUNTER, Justice.

The defendant, Theodis Prentice, was convicted by a jury of theft, a Class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1984 Supp.), and of being a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1984 Supp.). He was sentenced to the Indiana Department of Correction for a term of thirty-three years. In this direct appeal defendant raises the following five issues:

1. Whether the trial court erred by failing to grant defendant's motion for judgment on the evidence;

2. Whether there was sufficient evidence to support the verdicts of the jury;

3. Whether the trial court erred by refusing to give defendant's orally tendered instruction;

4. Whether the trial court erred by allowing the introduction of certain evidence over defendant's objection; and

5. Whether the sentence of thirty-three years constitutes cruel and unusual punishment.

A brief summary of the facts from the record most favorable to the state shows that in January, 1983, Christine Wright witnessed a man drive off with her 1973 Catalina Pontiac. Wright did not know defendant nor did she give anyone permission to use her car in January, 1983.

On January 25, 1983, Albert Horton, an auxiliary police officer with the Gary Police Department, observed a stationary vehicle with three occupants in an alley. Policeman Horton approached the vehicle to investigate in accordance with police procedures. When Officer Horton directed the police car spotlight on the vehicle, the vehicle proceeded to move one-half block. The officer then activated his red dome light and the vehicle continued to move. After the police car siren was turned on, the vehicle came to a halt. Officer Horton asked the driver to present his driver's license and vehicle registration. Since the driver did not have either of the requested documents, the officer ran a V.I.N. check and a license plate check. The vehicle, a 1973 Catalina Pontiac, was registered to Wright. The driver, Theodis Prentice, and two passengers, Roy White and Laverne Young, were arrested.

I. and II.

Due to their similarity, we are consolidating defendant's arguments on the first two issues.

Defendant first contends that there was insufficient evidence to support the conviction for theft. Defendant argues that the evidence merely established the presence of defendant and two passengers on January 25, 1983, in the car owned by Wright and does not prove beyond a reasonable doubt that defendant was the person who actually took the car in January, 1983.

The elements of the crime of theft are defined in Ind.Code Sec. 35-43-4-2 (Burns 1984 Supp.) as: "A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony."

In a review for sufficient evidence the function of this Court is to look only to the evidence most favorable to the state and all reasonable inferences to be drawn therefrom. This Court does not weigh conflicting evidence nor judge the credibility of witnesses. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. McNary v. State, (1984) Ind., 460 N.E.2d 145; Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260.

It is well settled that unexplained possession of recently stolen property is a fact from which a jury may infer guilt. Short v. State, (1982) Ind., 443 N.E.2d 298; Muse v. State, (1981) Ind., 419 N.E.2d 1302. Evidence that defendant was driving a car prior to an accident is a sufficient basis from which the jury may properly infer the necessary unauthorized control of the car. Presley v. State, (1973) 155 Ind.App. 419, 293 N.E.2d 52.

However, it is also true, as defendant contends, that where a considerable length of time has elapsed from the time of the theft to the date of arrest, it is necessary to show that defendant had exclusive possession of the stolen property during that interim period to permit an inference of guilt for the crime of theft. Muse v. State, 419 N.E.2d at 1304.

Defendant argues that since the specific date in January on which the theft occurred was not established, there is a possibility of a twenty-four day lapse between the theft date and the date of his arrest. He contends that this is such a considerable length of time between the theft and his arrest that his possession of the car on January 25, 1983, was not sufficient evidence to support his conviction of theft.

However, in Muse, 419 N.E.2d at 1304, an approximate eighteen-day lapse between the theft of the van and defendant's possession was deemed by this Court to be sufficient evidence of probative value to support the jury verdict. It is clear that "[c]loseness of time is only one fact to be weighed with all others in drawing an inference of 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 test:

"In determining whether possession is 'recent,' we consider not only the length of time between the theft and the possession but also the circumstances of the case (such as defendant's familiarity or proximity to the property at the time of the theft) and the character of the goods (such as whether they are readily salable and easily portable or difficult to dispose of and cumbersome)."

In this case, defendant's unexplained possession of the stolen car within a short period after the theft, in combination with his inability to show vehicle registration or owner permission for the car he was driving, was sufficient additional evidence to establish possession of recently stolen property.

Defendant further argues that the state must also prove that he was the individual who actually took possession of Wright's car since at the time of arrest there was a male passenger in the car. In support of this argument he cites Bond v. State, (1971) 257 Ind. 95, 272 N.E.2d 460. In that case this Court found the evidence was insufficient to support any determination as to which of three women committed the act of taking and carrying a dress from a store. We stated: "[T]he triers of the fact have no right to pick one out of the group and hold such person guilty without some specific evidence pointing to the guilt of that particular individual." Bond v. State, 257 Ind. at 99, 272 N.E.2d at 463.

In this case, there is other evidence pointing to defendant's guilt. Additional evidence which indicates the individual guilt of defendant is the testimony of Laverne Young, defendant's sister, and the testimony of Officer Horton. Young was a passenger in the Pontiac on the arrest date of January 25, 1983. The night of January 25, 1983, Young told the Gary police that she saw defendant in the same car with a woman driver a week prior to his arrest. On May 19, 1983, Young testified at the deposition that she saw defendant in the same car with a woman driver two to three days prior to the arrest date. However, Young's in-court testimony at the June 27, 1983, trial of defendant was inconsistent as to whether it was the same car.

Defendant maintains that while testimony of a lone witness for the state does not in itself render the evidence insufficient to establish guilt beyond a reasonable doubt, there may not be substantial evidence of probative value from which the jury could infer the existence of each material element beyond a reasonable doubt when the testimony is weak. Bryant v. State, (1978) 268 Ind. 498, 376 N.E.2d 1123. We reversed a criminal conviction based upon insufficient evidence when eyewitness testimony was characterized as "vacillating, contradictory, and uncertain." Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658. The insufficiency determination was based on equivocal eyewitness testimony which was the only evidence. Here, Young's testimony was additional evidence of defendant's guilt but was not the only evidence of that guilt.

The state also showed that defendant did not have any registration for Wright's car or any sales receipt or other indication that he was the legal owner of that car. Furthermore, there was evidence of attempted flight. Officer Horton testified that defendant drove the car one-half block when the police car spotlight was turned on the car. Defendant argues that the facts do not substantiate an attempt to flee in accordance with Ind.Code Sec. 35-44-3-3 (Burns 1984 Supp.). The facts may not satisfy the requisite elements of resisting law enforcement but neither was defendant so charged. However, the facts do show that defendant may have attempted flight when approached by the police. A jury may infer guilt based upon attempted flight since such conduct often shows consciousness of guilt. Thomas v. State, (1970) 254 Ind. 561, 261 N.E.2d 224; Lee v. State, (1981) Ind.App., 419 N.E.2d 825.

The record here indicates defendant was driving the stolen car within a few days of theft and did not have registration for the car nor owner permission to drive that car. There was also evidence of defendant's attempted flight from the police. From all the circumstances discussed, the trial court did not err by failing to grant defendant's motion for judgment on the evidence and we find that there was sufficient evidence of probative value to support the jury's verdict.

III.

Defendant contends the trial court erred by failing to grant his request for an instruction that "mere presence at the scene of the...