Trotter v. State

• Decision Date: 09 December 2005
• Docket Number: No. 49A02-0412-CR-1042.,49A02-0412-CR-1042.
• Citation: 838 N.E.2d 553
• Parties: August TROTTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

838 N.E.2d 553

August TROTTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0412-CR-1042.

Court of Appeals of Indiana.

December 9, 2005.

COPYRIGHT MATERIAL OMITTED

David Pardo, Marion County Public Defender Agency, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

MAY, Judge.

August Trotter appeals his convictions of Class D felony auto theft¹ and Class A misdemeanor driving with a suspended license.² He raises five issues, four of which we address:³

1. Whether the State produced sufficient evidence to sustain Trotter's conviction of auto theft;

2. Whether the trial court abused its discretion in denying Trotter's motion for mistrial;

3. Whether the trial court abused its discretion in admitting a certified copy of Trotter's driving record; and

4. Whether Trotter's misdemeanor conviction of driving with a suspended license should be reduced to an infraction when Trotter was not so charged.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 12, 2004, Brian Collins left his 1995 Isuzu Rodeo on Park Avenue, between Massachusetts Avenue and North Street, in Indianapolis. Collins locked the vehicle and met a friend for dinner at a nearby restaurant. After dinner, Collins rode with another friend to a house in Broad Ripple, intending to obtain a ride to work the next morning from a friend.

The following day around 2:30 p.m., Collins returned to the location where he had parked his car and discovered the car was missing. Collins had not given anyone permission to drive his car. After learning police had not towed the vehicle, Collins reported it stolen.

On August 17, 2004, Indianapolis Police Officer James Rusk stopped Collins' black Isuzu Rodeo, which Trotter was driving. Officer Rusk ran the license plate number through his computer and confirmed the car was stolen. When he asked where Trotter obtained the vehicle, Trotter explained he "got it from some dude." (Tr. at 29.) Officer Rusk arrested Trotter and handcuffed him. During a pat-down search of Trotter, the officer found identification that indicated Trotter's date of birth was September 25, 1959.

The State charged Trotter with Class D felony auto theft⁴ and Class A misdemeanor driving with a suspended license. The State introduced into evidence a driver's record bearing a digitally signed certification from the Commissioner of the Indiana Bureau of Motor Vehicles. The record is for a person named August D. Trotter with a date of birth of September 25, 1959. The record indicates the driver was suspended for "failure to comply for DDC" with a "begin date" of February 4, 1999 and an "end date" of "Indef." (Ex. 1 at 2.) A jury found Trotter guilty as charged.

DISCUSSION AND DECISION

1. Sufficiency of evidence

We neither reweigh the evidence nor judge the credibility of the witnesses when reviewing the sufficiency of the evidence. Allen v. State, 743 N.E.2d 1222, 1230 (Ind.Ct.App.2001), reh'g denied, trans. denied 761 N.E.2d 411 (Ind.2001). We examine the evidence most favorable to the judgment and all reasonable inferences to be drawn therefrom. Id. We will affirm a conviction when there is substantial evidence of probative value from which the trier of fact could find guilt beyond a reasonable doubt. Id.

To convict Trotter of auto theft, the State was obliged to prove Trotter "knowingly and intentionally exert[ed] unauthorized control over the motor vehicle of another person, with intent to deprive the owner . . . of the vehicle's value or use." Ind.Code § 35-43-4-2.5(b).

Trotter first argues the State failed to prove the vehicle Trotter was driving belonged to Collins. When he stopped Trotter, Officer Rusk ran the license plate number of the black Isuzu Rodeo through his computer and confirmed the vehicle was stolen. Collins recovered his black Isuzu Rodeo from the police on the same day Trotter was arrested in a stolen black Rodeo. This evidence permits a reasonable inference Trotter was driving Collins' car.

Next, Trotter claims Indiana law does not permit the inference he was the person who stole Collins' car, as he was not found with the car until five days after it had been stolen. On this point, we agree.

The unexplained possession of stolen property may be sufficient to support a conviction of theft, Hughes v. State, 446 N.E.2d 1017, 1020 (Ind.Ct.App.1983), but the inference is permitted only where the property was "recently stolen." Gibson v. State, 533 N.E.2d 187, 188-89 (Ind.Ct.App.1989). In determining whether a theft is recent, we consider the length of time between the theft and the possession, and whether the goods are readily salable and easily portable rather than difficult to dispose of and cumbersome. Williams v. State, 714 N.E.2d 671, 673-74 (Ind.Ct.App.1999).

In Kidd v. State, 530 N.E.2d 287 (Ind.1988), a burglar stole rifles and stereo equipment. Kidd later sold the stereo equipment and rifles, offering various implausible explanations how he obtained the items and why he was selling them. The State argued that evidence, combined with Kidd's false explanations regarding his possession of the property and desire to sell it, was sufficient to support the conviction of burglary. Our Supreme Court disagreed. The Kidd court noted the unexplained possession of recently stolen items provides support for an inference of guilt of burglary and theft of that property. However, the sole evidence in Kidd was that Kidd was found in possession of the stolen rifles two to four days after the burglary, and the stolen stereo equipment one to three days after. "Under the circumstances presented to us, we cannot conclude that a reasonable trier of fact could find the defendant guilty of the offense charged beyond a reasonable doubt." Id. at 288.

Similarly, in Gibson we determined the defendant's unexplained possession of a car only two days after it was stolen was insufficient, by itself, to sustain a conviction of auto theft. 533 N.E.2d at 190. We noted the greater the lapse of time, the greater the need for a showing of other circumstances or character of the goods to support the determination the theft was "recent." Id. at 189. However, we affirmed Gibson's conviction because we found corroborating evidence supported it. The steering column was damaged in a manner that would permit the car to be started with a sharp instrument, such as a screwdriver, without using the key. A check of the vehicle identification and license plate numbers identified the vehicle as stolen. Police had watched the vehicle for about forty-five minutes when Gibson entered it and drove away. Gibson stopped the car and told police "some guy" was going to pay him to leave the car parked there. Id. at 188. Gibson denied having been in the car. Gibson had no identification or car keys and he refused to identify himself. He had a screwdriver in his right rear pocket.

Where, as here and in Kidd and Gibson, the lapse of time between theft and arrest is not short, evidence of other circumstances or of the character of the goods may support an inference the defendant stole the property. For example, in Muse v. State, 419 N.E.2d 1302, 1304 (Ind.1981), our Indiana Supreme Court noted where any considerable length of time has elapsed from the time of the theft to the time of the arrest there must be some showing the defendant had exclusive possession of the property during that time.

Muse was found in possession of a stolen van three weeks after the theft, but there was evidence to support an inference Muse had possession of the van shortly after the theft. Police found in the glove compartment a rent receipt and food vouchers dated some time before the arrest, all in Muse's name. The evidence also supported an inference Muse knew the van was stolen. The registration certificate of the original owner was in the glove compartment and the original license plate had been removed and placed under the seat. This was sufficient additional evidence to permit an inference Muse had stolen the property. Id.

In both Kidd and the case before us, the State provided neither evidence of exclusive possession after the theft as in Muse nor additional corroborating evidence such as that found sufficient to support the conviction in Gibson.⁵ We must accordingly decline to find a theft five days earlier was "recent," given the nature of the stolen property, the surrounding circumstances, and the absence of corroborating evidence.

2. Motion for mistrial

Trotter argues his motion for mistrial should have been granted because a juror might have seen him while he was in a holding cell prior to his trial. The decision to grant or deny a mistrial lies within the discretion of the trial court. Ortiz v. State, 741 N.E.2d 1203, 1205-06 (Ind.2001). A mistrial is an extreme remedy granted only when no other action can rectify the situation. Id. at 1206. To be awarded a mistrial, the defendant must show he was placed in a position of grave peril to which he should not have been subjected. Francis v. State, 758 N.E.2d 528, 532 (Ind.2001). The gravity of the peril is determined by the probable persuasive effect on the jury's decision. West v. State, 758 N.E.2d 54, 56 (Ind.2001). There must be more than mere speculation that the event in question happened and that the juror was prejudiced before a mistrial may be ordered. Harris v. State, 249 Ind. 681, 694-95, 231 N.E.2d 800, 807 (1967).

Here, there was only "mere speculation that the event in question happened and that the juror was prejudiced." Id. No juror claimed to have seen Trotter in the holding cell. Trotter was wearing civilian clothing, not clothing such as a jail uniform that might suggest guilt. A juror's view of a defendant in a jail uniform in the custody of police does not necessarily prejudice the defendant's constitutional right to a fair trial. See Sherwood v. State, 784 N.E.2d 946, 952 (...