Shank v. State

Decision Date21 November 1972
Docket NumberNo. 3--772A30,3--772A30
Citation289 N.E.2d 315,154 Ind.App. 147,33 Ind.Dec. 527
PartiesAlan Wayne SHANK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Thomas L. Ryan, Deputy Public Defender, Ft. Wayne, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., for plaintiff-appellee.

HOFFMAN, Chief Judge.

Three issues are presented in this appeal. The first issue is whether the conviction is sustained by sufficient evidence of probative value. The second issue is whether certain evidence was improperly admitted. The third issue is whether the trial court erred in refusing to credit the sentence of the defendant with the time he served while awaiting trial.

The defendant was charged by affidavit with the crime of theft. Trial was to the court without the intervention of a jury. The defendant was found guilty of the crime of theft, judgment was entered, and the defendant was committed to the 'Indiana Department of Corrections for a period of not less than one (1) year, nor more than ten (10) years.' The timely motion to correct errors filed by defendant was overruled and this appeal followed.

The facts pertinent to this appeal may be briefly summarized from the record before us as follows:

Charles Downey, an automobile salesman and dealer, testified that on the morning of October 8, 1971, an automobile was missing from his car lot in Fort Wayne, Indiana. The car was reported stolen at approximately 1:30 P.M. on that day. The missing car was a black 1964 Supersport Chevelle Malibu Convertible with a red interior, bucket seats and white top, although Downey also testified that he was 'not absolutely positive about the color of the top.' Downey testified that 'approximately three weeks after I (Downey) reported the automobile stolen', he observed the car in 'Burkhart's bullpen.'

Ralph Mace testified that he was employed by Downey as a car salesman and lot manager on October 7th and 8th of 1971. Mace further testified that when he went to lunch on October 8, 1971, he saw 'the vehicle * * * up against the curb' on Berry Street. Mace also testified that he saw defendant in or standing near the car.

Danny Jackson, a police officer of the City of Fort Wayne, Indiana, testified that on October 28, 1971, he discovered a 1964 Chevelle parked 'off the Scholtz Road.' Officer Jackson identified the defendant as having been found lying in the back seat of the car asleep.

Gary Grant, also a police officer of the City of Fort Wayne, Indiana, testified that he was the partner of Officer Jackson on the night of October 28, 1971. He testified that on that night he and Jackson found a vehicle parked on the Scholtz Road. He described the vehicle as a 1964 black Chevelle convertible, a Supersport model with a white top and red interior.

The defendant, Alan Wayne Shank, testified that on October 7, 1971, the same day he test drove the stolen car, he bought a 1965 black Chevelle Supersport and that this was the car in which he was found asleep by the police. During the direct examination of the defendant a Uniform Traffic Ticket and Complaint which Shank had received on October 26, 1971, was introduced into evidence. The ticket described the car as a '65 Chev.'

Betty Lanning, a witness called by the defendant, testified that on the night of October 7, 1971, she drove the defendant to a garage or a used car lot where the defendant said he had made arrangements to buy a car.

Sharon Lewis, another witness called by the defendant, testified that the defendant had taken her downtown on the day of October 8, 1971, in a black Chevrolet Malibu Supersport, and that the defendant had told her it was a 1965 model.

On appeal, the first issue raised is whether the conviction is sustained by sufficient evidence. In this regard, appellant first contends that the vehicle in which he was arrested was not sufficiently identified as the stolen vehicle.

In reviewing the sufficiency of the evidence to support this conviction, this court may not weigh the evidence nor determine the credibility of the witnesses. We may only look to the evidence and reasonable inferences flowing therefrom which support the finding of the trial court. The conviction must be affirmed if there is evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. McKinley v. State (1972), Ind., 281 N.E.2d 91, 92; Harris v. State (1972), Ind., 281 N.E.2d 85, 86. A conviction may be supported wholly by circumstantial evidence if it is of such probative value that a reasonable inference of guilty may be drawn therefrom. Gunn v. State (1972), Ind., 281 N.E.2d 484, 485; Vaughn v. State (1971), Ind., 266 N.E.2d 219, 220.

In the instant case, the defendant testified that he purchased a 1965 Chevelle that was similar to the stolen car. This testimony was contradicted by the testimonies of Downey and Mace who identified the car recovered by the police as the stolen car. Having reviewed all of the evidence and reasonable inferences flowing therefrom, we hold that there was sufficient probative evidence from which the trier of fact could have found beyond a reasonable doubt that the car in which the defendant was found was the stolen automobile.

The appellant next contends that the mere fact that he was sleeping in the back seat of the car is insufficient to prove the crime of theft.

In the case at bar the State was required to establish that the defendant knowingly obtained or exerted unauthorized control over the automobile with the intent to deprive the owner of the use thereof. See: IC 1971, 35--17--5--3, Ind.Ann.Stat. § 10--3030 (Burns 1972 Cum.Supp.).

The evidence in the record before us is uncontroverted that the defendant was found asleep in the back seat of the car, at 1:30 A.M., on October 28, 1971, with the key in the ignition and the motor running. Furthermore, there is evidence that the defendant drove 'his' car downtown on the day following the day that the car was stolen. There is other evidence that the defendant was seen standing near the stolen vehicle when it was parked near the curb on Berry Street.

IC 1971, 35--17--5--13, Ind.Ann.Stat. § 10--3040 (Burns 1972 Cum.Supp.), provides, in pertinent part, as follows:

'(8) 'Knowingly' means that a person knows, or acts knowingly or with knowledge, of: (a) the nature or attendant circumstances of his conduct, described by the section defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.

'(b) The result of his conduct, described by the section defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.

'(10) 'Obtains or exerts control over property' includes but is not limited to the taking, carrying, driving or leading away, concealment, or the sale, conveyance, encumbrance, transfer of title to or interest in, or possession of property, or the securing or extending a right to retain that to which another is entitled.'

Also, in Williams v. State (1969), 253 Ind. 316, at 321--322, 253 N.E.2d 242, at 246, 19 Ind.Dec. 623, it was stated:

'By contrast the word control means the power or authority to manage, superintend, restrict, regulate, direct, govern, administer or oversee. Black's Law Dictionary, Fourth Edition. It is the power or authority to manage . . . restrict. State v. First State Bank of Jud (1924), 52 N.D. 231, 202 N.W. 391.

'Ordinarily 'control' means . . . power or authority to check or restrain; regulating power; restraining or directing influence . . . so to it may imply, or not imply possession, depending on the circumstances . . .' 18 C.J.S., p. 28. (our emphasis)

'See also the varying definitions of 'Control' in 9A Words and Phrases, p. 4 and following.'

It has also been held that possession of stolen property shortly after a theft may support an inference of guilt. Swift v. State (1970), Ind., 264 N.E.2d 317; Freeman v. State (1967), 249 Ind. 211, 231 N.E.2d 246. Finally, in Tuggle v. State (1969), 253 Ind. 279, 283, 252 N.E.2d 796, 799, it was held that intent to permanently deprive the owner of the use or benefit of property may reasonably be inferred from unauthorized possession and the totality of circumstances surrounding the events in the case.

In the case at bar, the evidence as hereinabove set forth has sufficient probative value from which the trier of fact could reasonably have inferred that the defendant was guilty beyond a reasonable doubt of each element of the offense charged.

The second issue argued by appellant in the instant case is whether certain evidence was improperly admitted by the trial court. Appellant contends that an answer of Ralph Mace, on cross-examination, was 'an evidentiary harpoon and should have been stricken.'

The portion of the record before us to which this contention refers reads as follows:

'Q. All right. And, in fact the license number that you saw on that particular car of 2C195 really is the only identifying characteristic that you remember about the car you saw on the corner of Berry and Calhoun?

'A. Well, I knew the car.

'Q. Well, let me rephrase the question. I would ask the Court to strike that answer as nonresponsive.

'THE COURT: No. No. I'm going to overrule you on that. You asked him about any distinguishing features about the thing or how he knew the car and he said he knew the car. That's about as responsive as you can get, I believe.'

The 'evidential harpoon' was discussed in White v. State (1971), Ind., 272 N.E.2d 312, at 315--316, as follows:

'The volunteering by police officers of inadmissible testimony prejudicial to the defendant has been condemned time and again by both state and federal courts. For example, in ...

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