Shindler v. State

• Decision Date: 14 October 1975
• Docket Number: No. 1--374A45,1--374A45
• Parties: Jack SHINDLER and Helen Hunter, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 638

335 N.E.2d 638

166 Ind.App. 258

Jack SHINDLER and Helen Hunter, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--374A45.

Court of Appeals of Indiana, First District.

Oct. 14, 1975.

Rehearing Denied Nov. 25, 1975.

James A. Neel, Ferd Samper, Jr., Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

His is an appeal by defendants-appellants, Helen Hunter and Jack Shindler, from their conviction for conspiracy to commit the felony ¹ of exerting unauthorized control over the property of another. ²

FACTS:

Viewed most favorably to the State, the pertinent facts reveal that Stanley D. Milhous (Milhous), the alleged victim of the conspiracy, was approximately eighty (80) years old when the sequence of events culminating in this appeal began. Milhous lived alone on the remainder of a family farm, and also owned, by inheritance from a deceased spouse, farmland in North Dakota and a house in Indianapolis. While Milhous was able to care for himself, there was evidence that he had glaucoma in one eye and a cataract in the other, thus making it difficult for him to read under certain conditions.

Milhous first met Hunter in 1970 when she was working in a drugstore. Shoretly thereafter, Milhous met Shindler while purchasing a car from him for Hunter. Milhous testified that sometime thereafter he met with Shindler to execute to him a power of attorney. Unbeknown to Milhous, this power was actually in favor of Hunter, who later had the document notarized with the aid of a third person who Milhous stated he never knew.

In December of 1971, Hunter and Milhous went to Valley City, North Dakota in a 1969 Ford purchased by Hunter with funds borrowed from Milhous. Milhous and Hunter met Milhous' attorney, Roy Ployhar, at Valley City and arranged for the withdrawal of proceeds which had accumulated from the rental of Milhous' North Dakota farmland. A certificate of deposit (CD) held in Milhous' name at the American National Bank of Valley City, North Dakota, which totaled $20,229.28 was cashed by Hunter and Milhous. Although the evidence in the record reveals that Hunter showed her power of attorney to the teller at the time the CD was cashed, she gained physical control over the proceeds with Milhous' consent. The proceeds from the DC were divided into the following amounts:

(1) Cashier's check to Milhous and Hunter for $18,219.28, the amount the defendants were charged in the indictment with conspiring to steal;

(2) $500.00 for a legal fee to Roy Ployhar;

(3) $1,010.00 in traveler's checks purchased by Hunter;

(4) $500.00 in cash to Hunter.

Milhous never told Hunter that she could spend the money that she obtained from the DC for her own use. Rather, he told her to keep a strict accounting of these funds, particularly the cashier's check which he asked her to place in the bank for safekeeping for himself.

Upon leaving Valley City, Milhous and Hunter went to Hunter's son's house in Tacoma, Washington. Early in 1972, Hunter and Milhous returned to Indianapolis and Hunter took Milhous to her daughter's home on the east side of Indianapolis. Next, Shindler took Milhous to the Hoosier Poet Motel in Greenfield, Indiana, and without Milhous's knowledge registered him into the motel under the name of 'Jones'. Milhous stayed in the motel for approximately two weeks and had his food brought to him by Hunter, Shindler, or Shindler's assistant.

Shindler then took Milhous from the Hoosier Poet Motel to Shindler's sister's house in Las Vagas, Nevada, for the ostensible purpose of obtaining a Nevada divorce for Milhous. After keeping Milhous at his sister's residence for approximately one week, Shindler signed Milhous into the Beverly Manor Convalescent Hospital on March 14, 1972, under the name of 'Stanley Brown'. The bills for the services provided by Beverly Manor were sent to defendant Hunter.

While Milhaus was in the convalescent home Shindler filed a change of address card with the Bridgeport Post Office, resulting in Milhous's social security checks being sent to Shindler's address in Indianapolis. This action was never authorized by Milhous, who testified that during his fifteen month stay in Beverly Manor he never received any social security checks.

Hunter had a checking account with the Merchants National Bank in Indianapolis, Indiana. Her balance was $42.27 in November of 1971; however, by the end of December, 1971, the balance was $20,278.39. A deposit of $20,000.00 had been made into this account on December 21, 1971, five days after Hunter and Milhous had cashed Milhous's CD in Valley City, North Dakota. Between January 26, 1972, and September 28, 1972, Hunter wrote checks on this account to Shindler for a total amount of $4,410.00, although Shindler had never asked Milhous to pay him an attorney's fee. Between January 7, 1972, and March 30, 1973, Hunter wrote checks on this account to herself for a total amount of $5,234.00. Additional amounts were distributed from this account by Hunter and paid to her family. Hunter also drew two $2,500.00 checks to Shindler on Milhous's checking account in the First National Bank and Trust Company of Plainfield, Indiana. These checks were paid by virtue of Hunter's power of attorney, that Milhous had unknowingly signed over to her on or about October 20, 1971.

ISSUES:

Hunter and Shindler raise six arguments in support of their appeal. The issues, and the order in which they will be considered here, are as follows:

(1) Was there a failure of proof of the crime with which appellants were charged.

(2) Was the order of the court separating witnesses violated when a newspaper reporter was allowed to remain in the courtroom and write articles about the trial which were later read by two witnesses.

(3) Should the newspaper reporter have been required to disclose the name or names of her initial sources.

(4) Was Milhous incompetent to testify by reason of a prior appointment of guardian.

(5) Was it error to admit into evidence a 'mug-shot' photograph of Hunter.

(6) Was the evidence sufficient to support the conviction.

I.

The first argument raised by Hunter and Shindler is that they were charged under the theft statute ('exerting unauthorized control') while the proof, at most, indicates a violation of failing to make a required disposition of property received, codified at IC 1971, 35--17--5--4, Ind.Ann.Stat. § 10--3031 (Burns Supp.1974).

Appellants contend that it was 'absolutely improper' to charge them under the general theft statute and then offer proof of a crime which they characterize as 'embezzlement.' It is asserted that this impropriety is not a mere variance, but a fatal failure of proof which requires reversal and dismissal of the charges.

Appellants rely primarily on Johnson v. State (1973), Ind.App., 304 N.E.2d 555, where § 10--3031 was extensively discussed. In that case, the court stated that

'The Indiana Legislative Advisory Committee Report of the Criminal Code Study Commission, Appendix 1, at 281 (1962) states that § 3031 was added to the Offenses Against Property Act 'to take care of the rare case where a prosecutor doubts that an offense has been committed under § 10--3030 because the funds in question have never been in the possession of the victim.'

'The 'rare case' involving property which has never been in the possession of the victim represents the only apparent new crime sought to be embraced within § 3031. This is not to say, however, that § 3031 does not embrace crimes theretofore existent as defined by prior statutory enactments. We view § 3031 as primarily a replacement for various forms of embezzlement but containing as well a provision for punishment of 'rare cases' such as delineated by the Study Commission example.' (Original emphasis.)

The court went on to hold that debtorcreditor situations were not within the ambit of § 10--3031.

Initially, we believe the above interpretation demonstrates that the alleged acts of Hunter and Shindler do not fall within the concept of the 'new' crime created by § 10--3031. Clearly, we are not here concerned with a situation where Milhous never had possession of the money. The money ultimately received by Hunter was in Milhous' personal bank account, and was therefore in Milhous' sole constructive possession prior to the withdrawal in 1971. It remains, however, to determine whether the alleged acts and proof indicate that the proper charge was one of embezzlement.

11 I.L.E. Embezzlement § 1, p. 516 succinctly sets forth the elements of the crime and the point of distinction between it and the crime of larceny (theft):

'Embezzlement is the fraudulent and felonious appropriation of another's property by a person to whom it has been intrusted, or into whose hands it has lawfully come. Embezzlement differs from larceny in that it is the wrongful appropriation or conversion of property where the original taking was lawful, or with the consent of the owner, while in larceny the taking involves a trespass and the felonious intent must exist at the time of such taking.'

This definition, however, must be viewed in light of two recent Indiana Supreme Court cases. In Green v. State (1972), 258 Ind. 481, 282 N.E.2d 548, the defendant obtained an employer's payroll check and cashed it after changing the original amount stated thereon. The defendant contended that it was improper to convict her of exerting unauthorized control over another's money (§ 10--3030(1)(a)) when, at most, she was guilty of theft by deception (§ 10--3030(1)(b)).

The court responded to the defendant's arguments by stating, inter alia, that

'The first part of the statute in question does not limit the means or method by which unauthorized control may be obtained. We can conceive of many situations in which some element of deception may be involved, such as picking pockets or distracting attention at the...