Survance v. State

• Decision Date: 06 July 1984
• Docket Number: No. 784S264,784S264
• Citation: 465 N.E.2d 1076
• Parties: Glen D. SURVANCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1076

465 N.E.2d 1076

Glen D. SURVANCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 784S264.

Supreme Court of Indiana.

July 6, 1984.

Wilson L. Tow, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This cause is before us upon the petition of the State of Indiana to transfer it from the Court of Appeals, Second District, that court having reversed the conviction of Defendant (Appellant) in the Criminal Court of Marion County by a decision and opinion published at 454 N.E.2d 430.

The aforesaid decision contravenes ruling precedents of this Court holding that courts of appeal may not reverse the judgment of conviction of a trial court upon the evidence if, from the evidence favorable to the State and all reasonable inferences to be drawn therefrom, the existence of each element of the crime may be found, beyond a reasonable doubt. Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260; Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. Transfer is, therefore, granted, and the decision and opinion of the Court of Appeals is now ordered vacated.

Defendant was convicted, in a trial by jury, of conspiracy to commit arson, Ind.Code Sec. 35-41-5-2 (Burns 1979). This case presents eight (8) issues for review:

1. Was the evidence sufficient to sustain the verdict?

2. Must the verdict be vacated by reason of the incapacity of the presiding judge to serve?

3. Did the trial court err in not providing the jury, at its request during deliberations 4. Did the trial court err in refusing to instruct the jury upon the degree of persuasive force of circumstantial evidence required to support a conviction?

with a copy of a specified portion of a witness' testimony?

5. Was the testimony of Defendant's co-conspirator inherently unreliable and, hence, of no probative value?

6. Did the court err in permitting a witness to testify notwithstanding a possible violation of a witness separation order?

7. Was Defendant's trial conducted so hurriedly as to have denied him due process of law?

8. Did the trial court commit fundamental error in sentencing the Defendant to a term of imprisonment for ten years and suspending seven years thereof?

ISSUE I

The evidence favorable to the verdict revealed that in October or November, 1978, Defendant was the owner of a mobile homes sales and service business and Earl W. Nave was in his employ. He summoned Nave by telephone to come and see him in his office, which Nave did. At that meeting, Defendant told Nave that he had a home in Shelbyville which he wanted "destroyed." He gave no reason for such desire, but Nave agreed to "do it" for $500. Thereupon, Defendant drew a map for Nave's use in finding the home, gave him a key to it and told him that it would be better to go during the day, as no one would then be at home. Within a week or two following that conversation, Nave drove to the house in one of Defendant's business vehicles, set fire to the home and then returned to Indianapolis and notified Defendant that "I was finished with what I had started."

The mobile home that was destroyed had been purchased by Ronald Gilles and his wife from the Defendant's corporation, on March 3, 1978, under an installment contract, which provided, among other obligations of the purchasers, that they would keep the home insured "against such risks and in such amount as the Seller may from time to time require and with such insurers as Seller may from time to time approve" with losses payable to the Seller, for application to any unpaid balance under the contract.

Defendant's corporation assigned its interest in the installment contract to Advance Mortgage Company, with recourse, in keeping with their customary business practices, and a policy of insurance was issued by Defendant, as agent for Foremost Insurance Company, to cover the actual cash value of the home.

The home was delivered to the Gilleses' rented site in Shelby County a few days subsequent to the sale, and the Gilleses moved into it. From the beginning, however, serious defects appeared in it, including roof leaks and an electrical short circuit that would occasionally cause one to be shocked severely upon touching the metal exterior of the home. Numerous complaints by the Gilleses to Defendant's office produced no satisfactory results. Whereupon they determined that they would not make the monthly payments for which they were obligated under the contract until the home was satisfactorily repaired. By July 19, Advance was threatening to repossess the home and the Gilleses were demanding that the contract be rescinded and their down payment of $1500 be refunded to them.

In all, Mr. Gilles telephoned the Defendant's office 12 to 15 times and discussed his complaints with Defendant personally on 10 or 12 such occasions. Defendant continuously advised Gilles that the problems would be taken care of, but they were not. In July, Gilles received a letter and a telegram from Charles Roy, on behalf of Advance Mortgage Co., each demanding that he vacate the home by July 27, and by August 9, respectively.

Shortly before August 8 and following receipt of one of the aforesaid notices to vacate, Gilles telephoned Defendant. A heated discussion took place between them, with Defendant insisting that the home was being repossessed for nonpayment of Both the operating contract between Advance and the Defendant's corporation and the assignment to Advance of the Gilleses' contract by Defendant's corporation rendered the corporation liable for defaults of the Gilleses upon the installment contract, and Defendant was aware of this contingent liability. Defendant testified, however, that although he had repossessed some homes under this arrangement, he had never been required to do so or to repay the loan proceeds to the mortgage company.

the installments, none of which had been paid, and Gilles advising that he had all the money due and would pay it when the home was properly repaired. Defendant said that he would come with a representative of the company and take care of it. Gilles did not know whether Defendant was then referring to a representative of the mortgage company or of the manufacturer of the home. In any event, no one came.

Following the burning of the home in the early afternoon of November 6, 1978, the Foremost Insurance Company paid the actual cash value of the home, approximately $14,000, to Advance Mortgage, in accordance with the provisions of the aforementioned insurance policy; and in January of 1979, the damaged home was sold, as salvage, by Foremost to Today Mobile Homes, another of the Defendant's companies.

Defendant acknowledges that there was evidence sufficient to show a conspiracy, participated in by him, to destroy the Gilleses' home, but argues that there was a failure of proof that the conspiracy was to so destroy it by fire, and correctly points out that the proof requisite to a conviction herein includes proof that the parties intended such destruction by the specific means proscribed by the arson statute, i.e., fire or explosives. He contends that the only evidence of a conspiracy was the testimony of Nave and that it revealed only that Defendant had told him he wanted the home "destroyed" and that he had agreed to "do it."

Upon the evidence related, the jury found Defendant guilty of conspiring to commit arson, and the Court of Appeals reversed, holding that the State had failed to meet its burden of proof beyond a reasonable doubt, in that it had failed to present "substantial proof of probative value" from which a reasonable trier of fact could infer, beyond a reasonable doubt, there was an agreement between the Defendant, Survance, and Nave to destroy the home by fire. We disagree with this conclusion. Considering the substantial evidence that Defendant wanted the Gilleses' home destroyed in order that he would benefit from the insurance policy proceeds, and considering the improbability that Nave could effect such destruction by windstorm or some other peril against which losses are generally insurable, reasonable men could conclude, beyond a reasonable doubt, that the minds of Defendant and Nave met upon fire, as the means of destruction to be employed.

A conspiracy entails an intelligent and deliberate agreement between the parties. Woods v. State, (1980) Ind., 413 N.E.2d 572, 576. It is not necessary, however, to present direct evidence of a formal express agreement. Williams v. State, (1980) Ind., 409 N.E.2d 571, 573; Woods, 413 N.E.2d at 576. The agreement as well as the requisite guilty knowledge and intent may be inferred from circumstantial evidence alone, including overt acts of the parties in pursuance of the criminal act. Beal v. State, (1983) Ind., 453 N.E.2d 190, 194; Williams, 409 N.E.2d at 573; Woods, 413 N.E.2d at 576; Patterson v. State, (1979) 270 Ind. 469, 478, 386 N.E.2d 936, 942; Johnson v. State, (1975) 164 Ind.App. 263, 265, 328 N.E.2d 456, 458. Where the sufficiency of such evidence is in question, as the reviewing court, we examine it carefully, "not for the purpose of finding whether or not it is adequate to overcome every reasonable hypothesis of innocence, but with the view of deciding whether an inference may be reasonably drawn therefrom tending to support the finding of the trial court." McAfee v. State, (1973) 259 In United States v. Holt, (1939) 108 F.2d 365, the Seventh Circuit Court of Appeals held:

                Ind. 687, 689, 291 N.E.2d 554, 556;   Johnson, 328 N.E.2d at 458
                

"[O]vert acts of the parties may be considered with other evidence and attending circumstances in determining whether a conspiracy exists, and where the overt acts are of a character which are usually, if not necessarily, done pursuant to a previous scheme and plan, proof of the acts has a tendency to show such pre-existing conspiracy, so that when proven they may be considered...