Scalf v. State, No. 2-1179A355

Docket NºNo. 2-1179A355
Citation424 N.E.2d 1084
Case DateAugust 26, 1981
CourtCourt of Appeals of Indiana

Page 1084

424 N.E.2d 1084
Wanda SCALF, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee.
No. 2-1179A355.
Court of Appeals of Indiana, Second District.
Aug. 26, 1981.

Page 1085

Ronald K. Smith, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Following trial by jury, Wanda Scalf was found guilty of forgery. 1 The evidence most favorable to the judgment discloses that Scalf passed bank draft No. 676393 which had been stolen from Ryder Truck Lines, Inc. in Muncie, Indiana and which bore an unauthorized signature made by an accomplice and which was tendered by Scalf at a supermarket or food store. Scalf was photographed at the time along with the draft drawn in the amount of $257 payable to Wanda Buchanan, a name by which Scalf was also known.

She appeals the conviction asserting the following as error:

I. Overruling of her Motions for Discharge 2 on grounds that the evidence was insufficient;

II. Denial of her Motion in Limine and her Motion, in the alternative, for a continuance;

III. Admission of certain exhibits; and

IV. Improper closing argument by the prosecuting attorney.

Page 1086

I.

Scalf's argument concerning her Motions for Discharge amount to an argument that the evidence is insufficient. The testimony of record, the demonstrative and photographic evidence, and defendant's own statement clearly establish that Check # 676393 was stolen from Ryder Truck Lines, Inc., was thereafter signed by an unauthorized accomplice made payable in the sum of $257 to Wanda Buchanan, a name by which Scalf was also known and was passed by Scalf at a food store known as Ross's Pac-a-Value. The attempt by Scalf to deter us by asserting that the evidence did not prove venue is unavailing. She presents this issue for the first time on appeal presumably under the auspices of Ind.Rules of Procedure, Trial Rule 50(A)(5) which has been held to provide that:

"(T)he sufficiency of the evidence to support a conviction may be raised for the first time on appeal in criminal cases." McGowan v. State (1977) 267 Ind. 16, 366 N.E.2d 1164.

We note that the McGowan case speaks with reference to the conviction. A conviction in this sense is not dependent upon the formal judgment which includes the collateral imposition of sentence as well as the determination of guilt. We are aided in this conclusion by State ex rel. Stiles v. Hendricks Circuit Court (1972) 258 Ind. 318, 281 N.E.2d 89, which observes that the pronouncement of sentence necessarily follows "after conviction." It is clear in this context that a conviction is quite simply the determination that the defendant is guilty of the crime charged or a lesser offense. See People v. Spears (1967) 83 Ill.App.2d 18, 226 N.E.2d 67; Bubar v. Dizdar (1953) 240 Minn. 26, 60 N.W.2d 77; State v. Carlyle (1978) 19 Wash.App. 450, 576 P.2d 408. The term therefore relates only to the elements of the particular crime involved and not to venue, which is a collateral matter.

To be sure, if properly preserved by inclusion in the Motion to Correct Error, the failure of the State to prove venue must result in reversal of the conviction. Strickland v. State (1909) 171 Ind. 642, 87 N.E. 12; Woodall v. State (1st Dist. 1974) 162 Ind.App. 39, 317 N.E.2d 900. But as our Supreme Court held in Sizemore v. State (1979) Ind., 395 N.E.2d 783, venue does not go to the guilt or innocence of the accused. We must therefore conclude that venue is not a fact bearing upon guilt or innocence upon which the evidence must be sufficient "to support a conviction" within the purview of T.R. 50(A) (5).

It is noted that our Supreme Court held in a criminal appeal, Reynolds v. State (1970) 254 Ind. 478, 260 N.E.2d 793, that a civil procedure statute requiring venue to be challenged by "answer or demurrer" was applicable and that an allegation of improper venue made for the first time in the motion for new trial was not timely. The Reynolds case was followed by the First District of this Court in Spoonmore v. State (1st Dist. 1980) Ind.App., 411 N.E.2d 146. These cases would presumably require at present that if venue is not challenged by a T.R. 41 Motion for Involuntary Dismissal or a T.R. 50 Motion for Judgment on the Evidence the issue is waived.

Accordingly, because the venue issue was not preserved by timely challenge or by Scalf's Motion to Correct Errors, it is waived. 3

II.

Defendant's Motion in Limine and alternative Motion for Continuance was premised largely upon belated...

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4 practice notes
  • Duffitt v. State, No. 48A02-8701-CR-36
    • United States
    • Indiana Court of Appeals of Indiana
    • February 17, 1988
    ...in his motion to correct errors, and thus it is waived. Burgess v. State (1984), Ind., 461 N.E.2d 1094; Scalf v. State (1981), Ind.App., 424 N.E.2d 1084. Additionally, the State may prove venue by circumstantial evidence. Boze v. State (1987), Ind., 514 N.E.2d 275. Here, there was evidence ......
  • Burgess v. State, No. 982S333
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1984
    ...decision is still applicable to the venue provisions in effect at the time of this case. See, e.g., Scalf v. State, (1981) Ind.App., 424 N.E.2d 1084; Spoonmore v. State, (1980) Ind.App., 411 N.E.2d 146. Accordingly, because defendant failed to raise the venue issue by appropriate motion at ......
  • State v. Boze, No. 3-1284A354
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 1985
    ...conviction is a "determination that the defendant was guilty of the crime charged or a lesser offense." Scalf v. State (1981), Ind.App., 424 N.E.2d 1084, 1086. A guilty plea is recognized as a conviction. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, cited in Combs ......
  • George v. State, No. 57525
    • United States
    • United States State Supreme Court of Mississippi
    • March 9, 1988
    ...nor could it be. See State v. Pulphus, 465 A.2d 153 (R.I.1983); Dunford v. State, 614 P.2d 1115 (Okla.Cr.1980); Scalf v. State, 424 N.E.2d 1084 (Ind.App.1981). See also Rule 901(a), Miss.R.Ev., eff. January 1, 1986; McCormick, Evidence Sec. 214 p. 672 (1984). The briefs talk at length of ph......
4 cases
  • Duffitt v. State, No. 48A02-8701-CR-36
    • United States
    • Indiana Court of Appeals of Indiana
    • February 17, 1988
    ...in his motion to correct errors, and thus it is waived. Burgess v. State (1984), Ind., 461 N.E.2d 1094; Scalf v. State (1981), Ind.App., 424 N.E.2d 1084. Additionally, the State may prove venue by circumstantial evidence. Boze v. State (1987), Ind., 514 N.E.2d 275. Here, there was evidence ......
  • Burgess v. State, No. 982S333
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1984
    ...decision is still applicable to the venue provisions in effect at the time of this case. See, e.g., Scalf v. State, (1981) Ind.App., 424 N.E.2d 1084; Spoonmore v. State, (1980) Ind.App., 411 N.E.2d 146. Accordingly, because defendant failed to raise the venue issue by appropriate motion at ......
  • State v. Boze, No. 3-1284A354
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 1985
    ...conviction is a "determination that the defendant was guilty of the crime charged or a lesser offense." Scalf v. State (1981), Ind.App., 424 N.E.2d 1084, 1086. A guilty plea is recognized as a conviction. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, cited in Combs ......
  • George v. State, No. 57525
    • United States
    • United States State Supreme Court of Mississippi
    • March 9, 1988
    ...nor could it be. See State v. Pulphus, 465 A.2d 153 (R.I.1983); Dunford v. State, 614 P.2d 1115 (Okla.Cr.1980); Scalf v. State, 424 N.E.2d 1084 (Ind.App.1981). See also Rule 901(a), Miss.R.Ev., eff. January 1, 1986; McCormick, Evidence Sec. 214 p. 672 (1984). The briefs talk at length of ph......

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