Sangsland v. State

• Decision Date: 04 August 1999
• Docket Number: No. 92A04-9803-CR-174.,92A04-9803-CR-174.
• Citation: 715 N.E.2d 875
• Parties: Michael A. SANGSLAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

715 N.E.2d 875

Michael A. SANGSLAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 92A04-9803-CR-174.

Court of Appeals of Indiana.

August 4, 1999.

Transfer Denied October 15, 1999.

Susan K. Carpenter, Public Defender of Indiana, Lorraine L. Rodts, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Janet Brown Mallett, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

DARDEN, Judge

STATEMENT OF THE CASE

Michael Sangsland appeals his convictions by jury of burglary, a class B felony, and theft, a class D felony.

We affirm.

ISSUES

I. Whether sufficient evidence exists to sustain Sangsland's convictions.

II. Whether the trial court abused its discretion by permitting the State's undisclosed rebuttal witness to testify.

III. Whether reversal of Sangsland's convictions is required as a result of a Brady violation by the State.

FACTS

On February 11, 1997, at approximately 5:00 p.m., Mr. Coffelt returned to his rural home located at 3759 East Hartman Road in Whitley County and discovered that his collection of guns and rifles, ammunition, and other items had been stolen. He then called the police and reported the burglary. When Deputy Charles Vogely arrived at the Coffelt residence, Mr. Coffelt indicated that he was last in the residence on February 9, 1997. The police subsequently received an anonymous tip that Sangsland had been selling guns. Upon further investigation, the police discovered that the guns being sold by Sangsland were Coffelt's guns. When police apprehended Sangsland, he still had some of Coffelt's guns in his possession.

The State subsequently charged Sangsland by information with burglary and theft, alleging that the crimes occurred on or about February 9. Sangsland filed a notice of alibi defense. In its answer to the notice of alibi, the State alleged that charged offenses occurred between February 9 and 11.

A trial by jury commenced on February 3, 1998. A.L., a juvenile, testified that he and Sangsland had stolen the guns and ammunition from the Coffelt residence. Although A.L. could not remember the exact date of the burglary, he indicated that it took place sometime in February prior to Valentine's Day. Jarrod Adams, an acquaintance of Sangsland, testified that Sangsland approached him about selling the guns on February 13 or 14. Adams further testified that Sangsland told him that he and A.L. had taken the guns from a farmhouse. A.L.'s girlfriend testified that Sangsland admitted that he and A.L. had stolen guns from a house "on 13 Curves."¹

Joseph Harter and Ryan Robbins each testified that they had purchased a gun from Sangsland which was identified at trial as belonging to Coffelt. Finally, the State introduced into evidence a letter written by Sangsland to A.L.'s girlfriend, wherein Sangsland complained that A.L. had "nar[k]ed" and requested that the girlfriend convince A.L. not to testify against him. (R. 365). Sangsland also requested that the girlfriend tell A.L. to tell the authorities that someone named Josh had committed the burglary, and that he had "nar[k]ed" on Sangsland because he was scared of Josh.

The defense proceeded along two theories. First, Sangsland's counsel attempted to show the alleged burglary occurred on or before February 5, 1997, prior to the period alleged in the State's answer to the notice of alibi. In support of this theory, Sangsland presented testimony from Candy Adair and Sangsland's mother, who each testified that they had learned through conversations with the Coffelts on February 5, 1997, that Mr. Coffelt's guns had been taken in a burglary.

Second, Sangsland advanced an alibi defense. Sangsland introduced the testimony of his parents in an attempt to show that he was incapable of committing the crimes alleged because he was on home detention in his parents' mobile home from January 13 through February 12, 1997. Sangsland's mother testified that during this time period, Sangsland was never outside the home without her knowledge, that she knew where he was "24 hours a day," and that he only went outside briefly to smoke cigarettes. (R. 533, 551). She indicated that Sangsland could not have exited the home without her knowledge because he did not have a key to the deadbolt lock on one door, and that the other door had a bar securing it which could not be moved without making noise. (R. 531). She also stated that Sangsland could not exit the home through any windows because plastic had been placed over them. Sangsland's father also testified that during the months of January and February 1997, Sangsland was at home during the hours when he was not at work.

The jury found Sangsland guilty of burglary and theft.

DECISION

I. Sufficiency of the Evidence

Sangsland argues that there is insufficient evidence to support his convictions because the State failed to prove beyond a reasonable doubt that the burglary occurred between February 9 and 11, 1997, as alleged in the State's answer to his notice of alibi. Specifically, Sangsland argues that while the State's evidence is adequate to support a conclusion that the elements of burglary and theft have been established, there is nevertheless insufficient evidence to permit a rational trier of fact to infer that he committed those crimes between February 9 and 11 as alleged in the State's answer to his notice of alibi.² Sangsland contends that once he "premised his defense upon the existence of an alibi and proof that the alleged crime could not have occurred upon the date charged, proof of the date of the burglary became a fact essential to conviction," which the State was obligated to prove beyond a reasonable doubt. Appellant's Brief, p. 12.

As Sangsland correctly notes, it is fundamental that the State has the burden of proving beyond a reasonable doubt each essential element of the crime charged. Time, however, is not an essential element of the crime of burglary or theft. See Ind.Code § 35-43-2-1; Ind.Code § 35-43-4-2; Hammond v. State, 240 Ind. 313, 164 N.E.2d 640 (1960). The law is well settled that where time is not an element or "of the essence of the offense," the State need not prove the precise date alleged in the indictment or information but may prove that the crime occurred at any time within the statutory period of limitations. Quillen v. State, 271 Ind. 251, 391 N.E.2d 817, 818-19 (1979); Cf. Herman v. State, 247 Ind. 7, 210 N.E.2d 249, 256 (1965)

("where time is not of the essence of the offense, under an allegation of a specific date, the offense may ordinarily be proved as having occurred at any date preceding the filing of the affidavit or indictment which is within the statute of limitations.").

Generally, variance between the date alleged and the State's proof at trial does not mandate acquittal or reversal. A variance between the date alleged in a charging information and the evidence at trial is not fatal unless it misleads the defendant in the preparation of his defense or when it subjects him to the likelihood of another prosecution for the same offense. Downs v. State, 656 N.E.2d 849, 852 (Ind.Ct.App.1995).

Nevertheless, Sangsland suggests that because he filed a notice of alibi, proof of the alleged time period became an essential element of the crimes charged. We disagree. Although our supreme court has stated that the filing of a notice of alibi defense makes the time of the offense critical or "of the essence," it has also made clear that the mere filing of an alibi defense does not impose a greater burden of proof on the State than would be otherwise required absent such a filing. Jennings v. State, 514 N.E.2d 836, 837 (Ind.1987). In Quillen, our supreme court stated that "although time becomes of the essence when the alibi statute has been invoked, it is also well settled that a variance, in order to be fatal, must be of such substantial nature as to mislead the accused in preparing and maintaining his defense or be of such a degree as is likely to place him in second jeopardy for the same offense." 391 N.E.2d at 819 (citing Aikens v. State, 154 Ind.App. 36, 289 N.E.2d 152 (1972)

).

In Stewart v. State, 521 N.E.2d 675 (Ind. 1988), the defendant contended that the State's response to his notice of alibi, in which the prosecution alleged that the offense occurred on July 6, required the State to prove that the incident occurred on that date as an element of the offense. The defendant further contended that the invocation of the alibi statute added an essential element to the crime charged. In rejecting the defendant's contentions, our supreme court stated that "[w]here the State at trial restricts its proof to the time frame within the information or within its answer to the notice of alibi, it has met its obligation under Ind. Code § 35-36-4-2," the Alibi Statute. Id. at 676-77. After concluding that the State had discharged its duty under the statute, the court stated that "[t]he time of commission was not an element of the offense." Id.

In light of the language in Quillen and Stewart, we conclude that the mere fact that a defendant raises an alibi defense does not necessarily make time an essential element of an offense.³ However, where the State's answer to the notice of alibi and evidence points exclusively to a specific date, and the defendant presents a defense based on that date, the jury's consideration of the defendant's guilt should be restricted to that date. See Jennings, 514 N.E.2d at 837

(reversible error to instruct that State's proof need not establish particular date of charged offenses when alibi defense was asserted; instructions circumvented and nullified defendant's opportunity to assert his alibi defense).

Here, the State, in its answer to Sangsland's notice of alibi, asserted that the offenses occurred sometime between February 9 and 11, 1997. The State's evidence at trial was consistent with that answer...