Snodgrass v. State, No. 2-278A47

• Docket Nº: No. 2-278A47
• Citation: 395 N.E.2d 816, 182 Ind.App. 473
• Case Date: October 22, 1979
• Court: Court of Appeals of Indiana

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395 N.E.2d 816 182 Ind.App. 473 Orson Keith SNODGRASS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 2-278A47. Court of Appeals of Indiana, Second District. Oct. 22, 1979.

[182 Ind.App. 474]

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Grant W. Hawkins, Samper, Hawkins & Atz, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Justice.

CASE SUMMARY

Defendant Orson Keith Snodgrass (Snodgrass) was convicted of feloniously obtaining or exerting unauthorized control of a motor vehicle in violation of the theft statute, Ind. Code § 35-17-5-3(1)(a). ¹ On appeal he challenges both the trial court's overruling of his motion to dismiss on grounds of double jeopardy or collateral estoppel, and the sufficiency of the evidence.

We affirm.

FACTS

The facts and evidence most favorable to the judgment are:

At approximately 4:30 a. m. on January 1, 1977, a green Pontiac was stolen from its owner, Leland Payne (Payne) in Marion County after he started the car and left it to "warm up" while he dressed. Approximately four hours later, a vehicle of the same description ran a stop [182 Ind.App. 475] sign in Johnson County, sideswipping a car driven by Greg Sickmeier (Sickmeier). The Pontiac did not stop after the collision.

The accident was witnessed by Dennis Duke (Duke), who was following Sickmeier in another car. Duke attempted to follow the striking vehicle and found it abandoned about one-quarter of a mile from the scene of the accident. It showed evidence of a sideswipe accident. Around the corner from the car he saw the defendant walking down the street and recognized him as the driver of the striking vehicle.

Having been called by Sickmeier, a police officer arrived at the scene. He, Sickmeier, and Duke inspected the abandoned car and found no keys in the ignition. They then set out to look for its driver and found the defendant walking in a yard. Duke identified him as the driver, having already given a detailed description to the officer.

The officer approached Snodgrass and immediately noticed a strong odor of an intoxicant on his breath. After giving defendant a sobriety test, he placed him under arrest. While doing so, he took a set of keys from the defendant's pocket. One of the keys fit the ignition of the green Pontiac. A check on the car's registration revealed the Pontiac was owned by Payne.

Defendant was subsequently tried in Johnson County ² on the charge of reckless driving, ³ and was acquitted. On July 29,

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1977, he was tried on the present charge in Marion County. Prior to trial, he moved to have the charge dismissed, contending that the second trial constituted double jeopardy or collateral estoppel. ⁴ The motion was made orally after the State waived the requirement that it be written.

[182 Ind.App. 476] ISSUES

On appeal, Snodgrass presents two issues:

ISSUE ONE: Did the court err in overruling defendant's motion to dismiss?

ISSUE TWO: Was the evidence sufficient to support the conviction?

PARTIES' CONTENTIONS

As to ISSUE ONE, Snodgrass contends that the State is barred from bringing the second prosecution because the two charges should have been joined. Further, he argues that dismissal was mandated because an issue common to both cases his identity was decided in his favor at the first trial.

The State counters that joinder of the offenses was discretionary, and that resolution of the identity issue in defendant's favor was not necessarily the basis of his prior acquittal. In any event, the State argues, defendant failed to prove the basis of that determination.

As to ISSUE TWO, Snodgrass asserts that the evidence established only an inference of his guilt by showing his possible possession, and that the force of such inference was diminished by the time and distance separating his apprehension from the taking of the car. To this the State replies the evidence was sufficient to justify the court's findings.

ISSUE I.

CONCLUSION The motion to dismiss was properly overruled because the statute relied on by defendant does not require the joinder of these two offenses, and because the assertion of collateral estoppel was neither substantiated nor properly raised.

Apparently defendant recognizes that compulsory joinder of separate and distinct offenses arising from the same "transaction" has never risen to the level of constitutional significance. He relies solely upon Indiana statutes for his claim that prosecution for this offense is barred because it was not joined in the earlier prosecution for leaving the scene of an accident.

[182 Ind.App. 477] Ind. Code § 35-3.1-1-9(a)(2) does provide that offenses "can be joined" when they "(a)re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan," but this permissive language can hardly be construed as being mandatory.

Moreover, Ind. Code § 35-3.1-1-10(c) states that when two or more offenses Could have been joined, the court shall grant dismissal "if the prosecution is barred by reason of the former prosecution." Thus, the failure to join related offenses is not Ipso facto grounds for dismissal.

As Snodgrass correctly asserts, collateral estoppel Is grounds for dismissal, for it can bar a second prosecution. Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. Accord, Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187; Harris v. Washington (1971), 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (Per curiam ); Simpson v. Florida (1971), 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549. See also Sanabria v. United States (1978), 437 U.S. 54, 98...