Tom v. State, 2-1072A67

• Decision Date: 27 June 1973
• Docket Number: No. 2-1072A67,2-1072A67
• Citation: 297 N.E.2d 479
• Parties: Carl TOM, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 479

297 N.E.2d 479

Carl TOM, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2-1072A67.

Court of Appeals of Indiana, Second District.

June 27, 1973.

Rehearing Denied July 23, 1973. Opinion Superseded 302 N.E.2d 494.

Palmer K. Ward, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Anthony J. Metz, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

SULLIVAN, Judge.

Carl Tom was tried and convicted of theft, i.e., vehicle taking, by the court below without intervention of a jury.

Appellant Tom attacks his conviction solely upon an assertion that the evidence is insufficient. The record discloses the following evidence most favorable to the State:

A black 1964 Ford Thunderbird was reported stolen in the first week of July, 1970 by the owner, James M. Harvey. The automobile was not found at that time. However, in January, 1971 while in the course of another investigation, Indianapolis Police Detective Donald Wright apprehended Charles Hickman who when arrested was operating a 1964 gold Ford Thunderbird. ¹ Detective Wright noticed that the Thunderbird had a serial number plate on the door post belonging to a 1964 Ford. ² Upon further investigation, Detective Wright discovered a title in the Thunderbird bearing the same 1964 Ford Indentification Number as the Serial number plate attached to the door post. This title on its face showed the owner to be Carl Tom.

Tom admitted that he had at one time owned a 1964 Ford but that he had sold it for junk to a nameless person whom he had 'seen around', and that he had driven the 1964 Thunderbird in question but only after Hickman had obtained it and had it on his premises. He also testified that he did not change the serial number on the Thunderbird.

Hickman testified that he had bought the 1964 Ford Thunderbird, then white in color, from one Raymond Reed who delivered to Hickman the title bearing Tom's name and that the sale took place approximately three or four months prior to Hickman's arrest. ³ That auto was subsequently determined to be Harvey's stolen car. Hickman further testified that in January of 1970 Tom brought a black 1964 Ford Thunderbird to Hickman's body shop to be painted and that Hickman painted the Thunderbird white. According to this portion of Hickman's testimony, the painting incident would have taken place approximately six months before the theft in question.

Upon review we consider only that evidence most favorable to the State together with reasonable inferences to be drawn therefrom which support the judgment of the trial court. A conviction must be affirmed if having applied the rule there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Platt v. State (1972 Ind.Ct.App.) 288 N.E.2d 591. The indictment charged that Tom 'knowingly, unlawfully and feloniously obtained and exerted unauthorized control over' Harvey's 1964 Thunderbird, in violation of IC 1971, 35-17-5-3, Ind.Ann.Stat., § 10-3030 (Burns 1972 Supp.).

The chronology of events as testified to by Hickman would indicate that defendant's connection with a black 1964 Thunderbird was prior to the theft. That sequential discrepancy, however, was not such as to require belief by the trial court (Richardson...