Short v. State

Decision Date27 December 1982
Docket NumberNo. 381S86,381S86
Citation443 N.E.2d 298
PartiesJohn B. SHORT, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William C. Erbecker, Jack R. Sutherland, Erbecker & Sutherland, Indianapolis, Terry Noffsinger, Noffsinger & Deig, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with Theft. Shortly thereafter the information was amended to add another count of Theft and an allegation of Habitual Offender. He was tried before a jury and found guilty of the first two counts and was also found to be an habitual offender. He was sentenced to four years imprisonment on each Theft count, the terms to be served concurrently. The court's entry on sentencing regarding the habitual offender charge reads:

"The Jury having found the defendant guilty of Count III, Habitual Criminal, the Court sentences the defendant to the Indiana Department of Correction for a period of thirty years to run consecutively with sentences in Counts I and II."

The foregoing entry reflects a misunderstanding of the operation of Indiana's habitual offender statute, I.C. 35-50-2-8 [Burns 1979 Repl.].

The habitual offender statute provides that in the event of such a finding as to a defendant, "The Court shall sentence [the defendant] to an additional thirty year term of imprisonment imposed [for the underlying felony]." I.C. 35-50-2-8(e). We have held the statute thus provides for an enhancement of the sentence for the underlying felony of which the defendant must be convicted in order to invoke the operation of the statute. Funk v. State, (1981) Ind., 427 N.E.2d 1081; Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114. The statute does not set forth an offense in and of itself. See, Yager v. State, (1982) Ind., 437 N.E.2d 454; Johnson v. State, (1982) Ind., 432 N.E.2d 1358; Williams v. State, (1982) Ind., 431 N.E.2d 793; Hall, supra. If the habitual offender statute is read to define a separate offense, its application would constitute a violation of the double jeopardy clause of the United States Constitution.

Appellant is not "guilty" of being an habitual offender; rather, he is found to have the status of habitual offender. See, Taylor v. State, (1981) Ind., 420 N.E.2d 1231. A sentence upon a finding of habitual criminality is not imposed as "consecutive" to the sentence imposed for the underlying felony conviction. Rather, the underlying felony sentence (here since there are two underlying felony sentences the judge must choose one to be enhanced) is enhanced by thirty (30) years.

The facts are: On January 28 or 29, 1980, two trucks leased to Nelson Wholesale Kitchens and Building Materials, Inc. (hereinafter "Nelson") located in Hopkinsville, Kentucky, were found to be missing from the business premises. On about February 6, 1980, employees of Area Supply Company (hereinafter "Area Supply"), a wholesale distributor of plumbing and electrical supplies in Hopkinsville, discovered a large number of items missing from their inventory, including sinks, bathtubs, commodes, and electrical and plumbing supplies. The two businesses are located within close proximity of one another. Tire tracks were found leading to a fence in back of the Area Supply warehouse from which the items were missing. Boards were leaning against the fence that would have enabled someone to cross the fence.

Soon thereafter police officers in Evansville began to conduct surveillance of the activities of appellant, owner of an incorporated construction firm in Evansville. He was observed driving one of the stolen trucks in the Evansville area between a large storage building he was renting in Posey County, an Evansville motel, and a construction site in Evansville on which his corporation was building an apartment building. Eventually the construction site was searched while the stolen truck was parked on the premises. Some of the items missing from Area Supply were found in the semi-completed apartment units. Appellant was arrested later that day. The next day the storage building in Posey County was searched. More of the stolen items were found.

Appellant claims the trial court erred in giving several instructions, the effect of each being to inform the jury of the penalties associated with the various offenses with which he was charged and the lesser included offense of each of the charges. He also claims instructions he tendered and which were refused should have been given instead, as those instructions omitted the information as to penalties.

It is true we have disapproved of the jury being informed of the penalties associated with the offense. Jones v. State, (1981) Ind., 425 N.E.2d 128; Inman v. State, (1979) Ind., 393 N.E.2d 767; DeBose v. State, (1979) 270 Ind. 675, 389 N.E.2d 272. Under I.C. 35-50-1-1 [Burns 1979 Repl.] the duty of sentencing has been left solely with the trial judge. However, in the case at bar, all the challenged instructions contained is information that a given offense is a certain class of felony (or misdemeanor in some instances). None of the challenged instructions informed the jury of the number of years of imprisonment associated with the class of offense into which the particular crime falls.

We see no problem with the instructions as to the prohibition against informing the jury as to penalty. We hold there is no violation of such prohibition.

In a related claim appellant argues the trial court erred in giving Final Instruction No. 17, wherein the court instructed the jury it was providing them with no information as to penalties associated with the various potential offenses involved in the case. Appellant asserts this instruction should not have been given because, in fact, information as to penalties was given to the jury. Therefore, appellant concludes conflicting instructions were erroneously given to the jury. We have already shown appellant's basic premise is faulty, thus this argument must fail.

Appellant claims the trial court erred in the manner in which it entered the judgment of conviction on Counts I and II for Theft. However, there is no allegation of error as to this issue in the Motion to Correct Error. An allegation of error on appeal not raised in the Motion to Correct Error is waived. Hooks v. State, (1980) Ind., 409 N.E.2d 618; Lynn v. State, (1978) 268 Ind. 632, 377 N.E.2d 1357.

Appellant claims the trial court erred in admitting into evidence certain items identified as stolen from Nelson and Area Supply. The record shows some of these items were seized between 9:00 a.m. and 9:30 a.m. on Monday, February 3, 1980. Appellant had been under surveillance by police officers as a suspect in the instant offense for several days prior to this seizure. Earlier in the morning of February 3 one of the stolen trucks was observed in the parking lot of an Evansville motel from which it was driven to the construction site by appellant. The officers who had spotted the truck and followed it observed it being unloaded at the site and moved immediately onto the site and arrested all those present. Appellant was not present at this time, however, as he had departed from the scene during the time the officers were parking their own vehicle. They also searched the premises and found some of the items. Appellant at trial and now on appeal objects to the admission of these items. This search took place without benefit of a warrant. Later that day warrants were obtained to search both the construction site and the Posey County warehouse appellant was renting.

Appellant's argument as to this first preliminary search and the admission of the items discovered as a result is simply that the evidence was discovered pursuant to an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution. Hence, the fruits of the search are inadmissible as evidence under the "exclusionary rule" of Mapp v. Ohio, (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 and Callender v. State, (1922) 193 Ind. 91, 138 N.E. 817.

In cases involving a question of the validity of a search, we are required to ask two questions: (1) was the search "unreasonable" within the meaning of the Fourth Amendment, and (2) if so, were the rights thereby violated the rights of the defendant or some other person. Pollard v. State, (1979) Ind., 388 N.E.2d 496. As to the first question, whether a particular warrantless seizure violates the Fourth Amendment depends on the facts and circumstances of each case. Lance v. State, (1981) Ind., 425 N.E.2d 77; Pollard, supra. The State bears the burden of proof for proving an exception to the warrant requirement. Lance, supra; Pollard, supra.

The State has met its burden in this case. Even where a warrantless search of a person's home is involved, such a search is reasonable if the exigencies of the situation mandate an immediate response. Ludlow v. State, (1974) 262 Ind. 266, 314 N.E.2d 750; Maxey v. State, (1969) 251 Ind. 645, 244 N.E.2d 650. One such exigency is that there is reason to believe evidence is being destroyed or is about to be destroyed. See, Schmerber v. California, (1965) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Ludlow, supra.

In the case at bar the record shows the stolen items discovered in the warrantless search were bathtubs packed in boxes and lengths of copper tubing, items commonly used in the construction of residential dwellings. The record also shows the bathtubs were identifiable only by markings on the boxes themselves as items from Area Supply. In the case of the copper tubing, the only identification marks were on tags wrapped around the bundles of tubing. If the officers had waited to get a search warrant for the construction site, there was valid reason to believe the identifying characteristics of the stolen items would be lost and the items themselves, though not...

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