Thomas v. State

• Decision Date: 23 July 1981
• Docket Number: No. 2-1279A397,2-1279A397
• Citation: 423 N.E.2d 682
• Parties: Frank Randall THOMAS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 682

423 N.E.2d 682

Frank Randall THOMAS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-1279A397.

Court of Appeals of Indiana, Fourth District.

July 23, 1981.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Frank Randall Thomas was convicted of automobile theft, after a jury trial, and sentenced to two years in prison. Specifically, Thomas was charged with knowingly exerting unauthorized control over a 1966 Pontiac station wagon belonging to Buford Pearson. Thomas appeals his conviction raising the following issues for review:

1) Whether the evidence was sufficient to sustain the jury's verdict?

2) Whether the trial court erred in refusing Thomas's request to read into evidence the deposition of a subpoenaed witness who failed to appear?

3) Whether questions propounded by the prosecution on cross-examination of Thomas improperly suggested Thomas had engaged in prior criminal activity?

4) Whether the trial court erred in refusing Thomas's tendered final instruction concerning mere possession of stolen property?

We affirm.

FACTS

The evidence most favorable to the State supporting this charge reveals the following. At approximately 3:30 A.M. on May 25, 1978, Katrina and Steven Cooper were sitting in their car, waiting for a bus, outside the Greyhound station in Lafayette, Indiana. Katrina saw three men, all meeting the same general description, walk past the Coopers and proceed south on Fourth Street. As he walked, one of the men repeatedly attempted to open the doors of several cars, while the other two men walked alongside. The man was finally successful in opening a door on the passenger side of a red station wagon with a white top parked in a lot approximately a block and a half from where the Coopers were parked. Katrina was unfamiliar with the downtown area and testified the station wagon was in a parking lot approximately one and a half blocks south of the bus station. She observed the man open and close the hood, enter the car and, after a short lapse of time, drive the vehicle off the lot in an erratic manner. She analogized the vehicle's movements to the jerky motions caused by a driver operating a manual transmission for the first time. Katrina only saw this one man enter the car.

Katrina directed Steven's attention to the man as he was attempting to open the doors on various cars in what Steven described as "a parking lot a bit to the south of us and across the street." Steven also witnessed the man's difficulty in starting the station wagon and its erratic exit from the lot, first in a northerly direction for a short distance and then to the east on a street or alley until it was out of view.

Steven called the police, told the officer he believed he had just witnessed a car theft, and described the vehicle's direction. The police informed Steven they already had received a similar report and, according to the officer on the phone, the police had given chase and a wreck had ensued before and during Steven's call.

Steven had spoken with Officer Johnson, the shift commander. Johnson testified that the parking lot referred to by the Coopers was the lot across from the Fowler Hotel on the northeast corner of Fourth and Ferry. Officer Smith testified that moments before Steven's report, he had received an anonymous call from a woman concerning an incident at Fourth and Ferry Streets involving a red station wagon. The testimony did not reveal any further details of this report.

In response to this anonymous call, Officer Reeves and Officer Emberton were dispatched by radio to the vicinity of the parking lot. Upon approaching the area, which was only a few blocks from the police station, Officer Reeves immediately saw a white-over red Pontiac on Fifth Street between Main and Ferry, approximately one block from the Fowler parking lot, and gave chase at speeds up to 90 miles per hour. The station wagon finally crashed into two parked cars approximately one Buford Naomi Pearson, the alleged owner of the stolen vehicle, testified she resided on Ferry Street in the Fowler Apartments and owned a four door 1966 red Pontiac station wagon with a white top. Pearson had parked her automobile in the Fowler parking lot on the corner of Fourth and Ferry and had last seen it there on the evening of May 24th, 1978. She testified she had not authorized anyone to use her automobile. At approximately 4 A.M. of May 25th she received a phone call from the Lafayette police and, a few minutes later, signed a stolen car report brought over by Officer Metzger. Pearson next saw her car two days later in a wrecked condition.

block from defendant Thomas's residence. The dispatch did not include a license plate number but described the vehicle as a red station wagon taken from the vicinity of the Fowler parking lot. Reeves approached the car and found Thomas lying on the front seat with his feet under the steering wheel. Reeves handcuffed Thomas as Officer Emberton arrived and Thomas was transported to the police station at approximately 4 A.M. Officer Reeves testified that by the time he returned to the station, Officer Metzger had obtained the license plate "on the stolen car and it matched the one that (he) had taken the subject out of ...."

DECISION

Sufficiency of the Evidence

The pertinent portion of the information charging Thomas with theft ¹ alleged as follows:

"That on or about the 25th day of May, 1978, in Tippecanoe County, State of Indiana, Frank Randall Thomas did knowingly exert unauthorized control over property of Buford Pearson, to wit: a 1966 Pontiac station wagon by taking it without the consent of Buford Pearson or any authorized agent of Buford Pearson with intent to deprive Buford Pearson of the value and use thereof."

Thomas contends the State failed to prove Pearson owned the vehicle in which he was found. We disagree and find the evidence and reasonable inferences support the jury's determination.

We acknowledge every criminal conviction must be supported by evidence upon each material element of the crime charged, Dew v. State, (1978) 268 Ind. 17, 373 N.E.2d 138 and it is well settled that the name of the owner or possessor of property alleged to have been stolen is a material allegation which must be proven beyond a reasonable doubt. Buckley v. State, (1970) 254 Ind. 621, 261 N.E.2d 854; Smith v. State, (1975) 167 Ind.App. 428, 339 N.E.2d 118. However, a conviction may be sustained upon circumstantial evidence alone, Willard v. State, (1980) Ind., 400 N.E.2d 151; Harris v. State, (1981) Ind.App., 416 N.E.2d 902, and when we review such a conviction we need not examine the evidence to determine whether it is sufficient to overcome every reasonable hypothesis of innocence. Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662. Rather, we need only determine whether reasonable inferences supporting the jury's verdict may be drawn from the evidence. Id.

In the instant case we find such an inference supports the jury's conclusion that Thomas was apprehended in the 1966 red Pontiac station wagon belonging to Pearson. Pearson testified she owned such an automobile on the date in question and had last seen it on the eve of the theft alleged herein, parked in a rented space in a parking lot located across the street from her residence on Fourth and Ferry. The Coopers testified they saw a vehicle, similar to the one described by Pearson as belonging to her, being driven out of a parking lot in the same vicinity at approximately 3:40 A.M. of the morning after Pearson last saw her vehicle where she had left it. The driver of the car had attempted entry of several other vehicles on the same street, finally entered the passenger side of the vehicle in question, engaged in extended suspicious activity before starting the vehicle, and drove the car off the lot in an erratic manner. Approximately 20 minutes after this activity was witnessed by the Coopers, Pearson signed a stolen car report. Since she had not authorized anyone to use her auto, we believe this evidence supports a reasonable inference that Pearson's 1966 red Pontiac station wagon with a white top was stolen on May 25, 1978 at approximately 3:40 A.M.

The evidence also sustains a finding that Thomas was apprehended in a stolen vehicle. In responding to a report of the possible theft of a red station wagon, the police spotted a vehicle meeting that description. When the police approached the car in question, the driver took flight in the automobile at speeds up to approximately 70 m. p. h. to 90 m. p. h. although the police were pursuing with the red lights flashing and the siren sounding. Immediately after the suspect vehicle finally crashed, Thomas was found with his legs underneath the steering wheel and lying across the front seat. Although the engine was running, there was no key in the ignition. Small scratches were found around the ignition, and a small pen knife was found on the front seat which an officer used to insert in the ignition and turn off the engine. Officer Reeves testified Officer Metzger informed him he had obtained the license plate number on the stolen car and it "matched the one" in which Thomas was found. This latter evidence on the matching plates was hearsay but it was not objected to at trial, and may therefore be considered by both the finder of fact and this reviewing court as probative evidence on the essential elements of the offense. Turentine v. State, (1979) Ind.App., 384 N.E.2d 1119. From this evidence we believe a jury could reasonably conclude the vehicle in which Thomas was found was stolen.

Additional evidence also supports a finding that Pearson's stolen auto and the stolen auto in which Thomas was found were the same...