Street v. State

• Decision Date: 18 March 1991
• Docket Number: No. 35A02-8907-CR-321,35A02-8907-CR-321
• Citation: 567 N.E.2d 1180
• Parties: Joseph STREET, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff. 1
• Court: Indiana Appellate Court

Page 1180

567 N.E.2d 1180

Joseph STREET, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.

No. 35A02-8907-CR-321. ¹

Court of Appeals of Indiana Fifth District.

March 18, 1991.

Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Office of Public Defender, Indianapolis, for appellant/defendant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee/plaintiff.

BARTEAU, Judge.

Joseph Street appeals a jury verdict of guilty to one count of receiving stolen property ² and one count of dealing in marijuana to a recipient under eighteen years of age. ³ The minor, Rusty Wright, was the prosecution's principal witness. The question presented is whether an unfair trial resulted from allowing Wright to testify that he had received marijuana from Street on one occasion before the act with which Street was charged. We hold that admission Where, as here, the verdict depends largely upon a jury's appraisal of witness credibility, the inquiry whether error was harmful entails a degree of weighing the evidence and judging credibility to determine whether the error influenced the verdict. Miller v. State (1982), Ind., 436 N.E.2d 1113. Accordingly, we supply an expanded review of the facts.

of the testimony was harmful error and reverse on both counts.

FACTS

Rusty Wright and Frank Denton burglarized a residence, taking, among other things, three televisions and two videocassette recorders. Two days later, two of the TVs and one of the VCRs were recovered by Deputy Farthing from the home of the defendant, Joseph Street. Farthing testified that he had focused his investigation of the burglary on Wright, who at that time was "listed as a runaway," Denton, and a third person named Matt Elzey; that Wright said he had taken some of the burgled items to Street's house; and that when questioned, Street acknowledged possession of the goods and readily produced them, explaining that Wright had told Street that he had been ejected by his father from the family home and needed a place to store some of his belongings temporarily. Farthing testified that he had pointed out to Street the owner's name engraved in one of the televisions, and Street had indicated that he had seen the engraving before Farthing mentioned it, thinking it "kind of funny." Finally, Deputy Farthing testified that Wright led him to a cache, hidden in an industrial area, of five small plastic bags of marijuana, which Farthing sent to the police laboratory for analysis.

Wright, sixteen at the time of the burglary, admitted his complicity in it. He testified that he had been staying at the trailer home of Denton and Elzey, where the stolen goods were secreted. He continued that Street had come to the trailer, looked at and expressed interest in the goods, and was informed by Wright and Denton that it was the proceeds of a burglary. Next, Wright testified that he, Denton and Street took two TVs and one VCR to Street's home, where he and Street went to the detached garage. There, Street opened the trunk of a car and allowed Wright to select two, one-ounce bags of marijuana from a grocery sack.

Wright and Denton then returned to the trailer, where they divided the marijuana into eight, quarter-ounce bags. Wright ended up with five of the bags, which he later revealed to Farthing.

Wright's story varied somewhat on cross-examination. He and Denton had gone to Street's, where they informed Street that they had some stolen goods at their trailer, and that the three then drove to the trailer. Street examined the merchandise and said he wanted it, but had no money. Wright suggested a swap of goods for marijuana, to which Street agreed. The three returned to Street's and completed the trade. No other adults were present.

After Wright's testimony, the prosecution called Denton, who also admitted his complicity in the burglary. He testified that at the trailer there was no discussion concerning disposing of the stolen goods, but that he had heard Wright say something about taking the items to Street. Denton agreed that the three of them took the goods to Street's, but stated that Street and Wright never left the house, and that he witnessed no transfer of marijuana. However, Denton testified that after leaving Street's, Wright gave him a bag of marijuana.

On cross-examination, Denton testified that Street had not been told that the goods were stolen, because he and Wright did not want to reveal their participation in the burglary. Also, there was no talk of trading the items for marijuana. Moreover, Wright and Elzey had been selling marijuana during the previous two weeks, and on at least three occasions those two had gone out in Elzey's car and returned with marijuana. Finally, Denton testified that there were other adults at Street's, and that he believed Wright had told Street Next, the State called the police chemist, who testified that the five plastic bags contained marijuana totalling just under one ounce--25.1 grams. The State then rested.

something about Wright's having left home.

Street called three friends, all of whom testified that they were visiting Street at his home when Wright appeared. All three testified that Wright said he wanted to store some belongings at Street's, and two testified that Wright mentioned having been told by his parents to leave their house. Janet Miller, who lives with Street, repeated the same exculpatory story.

At that point, Street took the stand. He reiterated the story, and denied Farthing's testimony about prior notice of the owner's name engraved in one of the TVs, testifying that he never saw the name until Farthing pointed it out.

Here, we pause to note that if the issue before us were solely an allegation of insufficient evidence, we would affirm. This case illustrates the wisdom of our well-settled procedure in sufficiency appeals of considering only the evidence favorable to the verdict and the inferences reasonably drawn therefrom, of refusing to reweigh the evidence or judge the credibility of witnesses, and affirming if there is substantial evidence of probative value. See, e.g., McClaskey v. State (1989), Ind., 540 N.E.2d 41.

The challenged evidence entered during direct examination of Wright. The prosecutor wanted to question him about prior transactions with Street for marijuana. Street objected on the grounds that the testimony was impermissible character evidence. The trial judge sustained, but the prosecutor persisted. After argument, the trial judge reversed himself and overruled the objection. Wright was allowed to testify that a week and a half before the charged crime, he had traded a stereo, his personal property, to Street for one ounce of marijuana. When Street later testified, he admitted receipt of Wright's stereo, but claimed that the exchange was a purchase for $70.00.

In addition to the initial objection, Street preserved the issue for appeal with a continuing objection and a motion for mistrial. In arguing for admissibility, the prosecutor gave two reasons: first, that the testimony would reveal a common scheme or plan, "a practice on the part of the defendant to deal with this particular witness in exchanging marijuana for personal property"; and second, that later testimony would show recovery of more than two ounces of marijuana, and because Wright had testified to receiving only two ounces for the stolen goods, the State needed the evidence of the first transaction to explain the source of the marijuana in excess of two ounces. The trial court decided to admit the testimony, based on the similarity of twice trading property for marijuana, the proximity in time, and the need to explain the excess weight, without stressing any one factor. At that point, the chemist had not yet testified that less than one ounce had been recovered.

DISCUSSION

This case focuses on the admissibility in a criminal trial of evidence that a defendant committed a crime with which he has not been charged. ⁴ Evidence of such an "extrinsic offense" ⁵ is "generally inadmissible if 'its sole relevance is to show that the defendant's general character is bad and that he therefore has a tendency to commit crimes.' " Penley v. State (1987), Ind., 506 N.E.2d 806, 808 (quoting Schnee v. State (1970), 254 Ind. 661, 662, 262 N.E.2d 186, 187). Restated, the rule is "evidence which can prove or tend to prove that an accused engaged in criminal activity similar to the charged crime is generally inadmissible to prove an accused's propensity to commit crime or an accused's guilt of the charged crime." Malone v. State (1982), Ind., 441 N.E.2d 1339, 1345.

The general rule addresses concern that a jury will convict solely on an inference of bad character flowing from evidence of the defendant's extrinsic offense, which would violate our jurisprudential tenet against punishing defendants for what they are, rather than for what they did. Penley, supra at 808. Two additional reasons support a bar against admission of extrinsic offense evidence: (1) to relieve a defendant of the need to respond to unexpected accusations, and (2) to decrease the chances that a jury will become confused by collateral issues or have its attention diverted from the charged crimes. Gibbs v. State (1989), Ind., 538 N.E.2d 937, 939.

However, extrinsic offense evidence is not per se inadmissible. Penley explains that "evidence of uncharged misconduct may often be admissible because it promotes a legitimate inference about some issue in the cause, notwithstanding its incidental revelation about the defendant's character." Id. at 808. A treatise on Indiana law identifies nine exceptions to the general rule, allowing evidence of extrinsic offenses to promote an inference about the defendant's intent, motive, malice, knowledge, sanity, capacity, identity, common scheme or plan, or depraved sexual instinct. 12 R. Miller, Indiana Evidence, Secs....