Vanyo v. State

Decision Date07 July 1983
Docket NumberNo. 682S241,682S241
Citation450 N.E.2d 524
PartiesCharles VANYO, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Howard S. Grimm, Jr., Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Charles Vanyo, was convicted of dealing in a controlled substance, a Class B felony, Ind.Code Sec. 35-48-4-2 (Burns 1979 Repl.) and was sentenced to the Indiana Department of Correction for a period of fifteen years. His direct appeal raises the following four issues:

1. Whether the trial court erred in denying defendant's motion for a mistrial based upon the allegedly prejudicial remarks of the prosecutor during the opening statement;

2. Whether the trial court erred in denying defendant's motions for mistrial based upon allegedly improper testimony from two witnesses;

3. Whether the trial court erred in denying defendant's motion for mistrial based upon the allegedly improper remarks of the prosecutor during his final argument; and

4. Whether the trial court abused its discretion in imposing an excessive term of imprisonment and relying upon improper factors as aggravating circumstances.

I.

At the beginning of the trial, the prosecuting attorney gave an opening statement in which he outlined the evidence that would be used at trial. He stated that an undercover agent, Sandra Rose, had been given a one hundred dollar bill by the police and used it to purchase "fifty hits" of L.S.D. from defendant. The attorney further stated that during the transaction Rose had discussed with defendant when he would be able to obtain more L.S.D. and when she could return to buy three hundred "little blacks." At that point, defendant moved for a mistrial since laboratory tests showed that the three hundred black capsules were not a controlled substance. The record shows that Rose later testified about these capsules, but the trial judge admonished the jury that the black capsules were "not a controlled substance and contained nothing in any way illegal."

It is well settled that the purpose of an opening statement is to inform the jury of the charges and the contemplated evidence. Its scope and content are within the sound discretion of the trial judge and a cause will not be reversed unless a clear abuse of discretion is shown. Woodford v. State, (1980) Ind., 405 N.E.2d 522; Alderson v. State, (1974) 262 Ind. 345, 316 N.E.2d 367. Likewise, the granting of a mistrial is within the sound discretion of the trial court and its determination will be reversed only where an abuse of that discretion can be established. Ramos v. State, (1982) Ind., 433 N.E.2d 757; Abrams v. State, (1980) Ind., 403 N.E.2d 345. If a jury is admonished by the trial court to disregard what has occurred at trial, or if other reasonable curative measures are taken, no reversible error will ordinarily be found. Rose v. State, (1982) Ind., 437 N.E.2d 959; Page v. State, (1980) Ind., 410 N.E.2d 1304.

Defendant argues that he was prejudiced by the prosecutor's remarks because they were longer than usual for an opening statement and raised the inference of his participation in other illegal activity. We find no demonstration of prejudice here as the prosecutor's comments were only about what occurred during the transaction of the instant crime. Furthermore, any possible error was cured by the court's later admonition.

II.

During the direct examination of the state's witness, Rose, she was asked how she contacted defendant in order to make the purchase of L.S.D. She stated that she called him at the Laketon Garage and said she wanted to make a large purchase of gas and explained that she used the word "gas" because defendant "knew he was under surveillance for drugs." Defendant then moved for a mistrial and now argues that the testimony was prejudicial and led the jury to believe that he was an habitual dealer in drugs. As we pointed out in Issue I, the denial of a motion for mistrial rests within the sound discretion of the trial court, and we will reverse the court's decision only when it is shown that the defendant was placed in a position of grave peril to which he should not have been subjected. Rose v. State, supra; Morgan v. State, (1981) Ind., 419 N.E.2d 964; White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312. Here the witness's testimony was clearly relevant and was necessary to explain how she had arranged the instant transaction. Evidence which is otherwise competent and relevant and which tends to prove or disprove a fact in issue is admissible even though it tends to show guilt of another crime. Jenkins v. State, (1975) 263 Ind. 589, 335 N.E.2d 215. We do not find that defendant was placed in a position of grave peril to which he should not have been subjected.

Another witness who was also present during the sale of the L.S.D. testified that he told defendant he would come back to the garage in half an hour to buy some speed. Defendant did not object to this testimony at trial and so has waived any error here. Errors which are not raised by proper objections at trial will not be considered on appeal. Rose v. State, supra; Gee v. State, (1979) 271 Ind. 28, 389 N.E.2d 303; Brown v. State, (1975) 264 Ind. 40, 338 N.E.2d 498.

III.

Defendant next contends that the trial court wrongfully denied his motion for mistrial made during the prosecutor's closing argument. At one point the prosecutor argued that some of defendant's witnesses should be disbelieved because they might have been closely involved with defendant's drug activity. The prosecutor also responded to some of defense counsel's closing argument with the following language:

"The only thing we are here to decide is the guilt or innocence of this defendant. Mr. Grimm says if we knew Mr. Vanyo was a dealer why didn't we send in someone to him before. You've got to understand the way drug dealers operate. They don't sell to anybody who walks in off the street, they sell to a very few selected clientele, some people that they trust, that's why he sold to Sandy Rose, and that's not to assume that the State hasn't tried before."

It is well settled that the conduct of final argument as well as the course of the trial is within the sound discretion of the trial court. Whitacre v. State, (1980) Ind., 412 N.E.2d 1202; Faust v. State, (1977) 266 Ind. 640, 366 N.E.2d 175. Here the prosecutor was responding to defense counsel's arguments and there had been ample evidence presented to support the conviction, including two eyewitnesses and a radio monitor of the transaction by police. We do not find defendant was placed in a position of grave peril which would necessitate the reversal of his case.

IV.

Finally defendant argues that the enhancement by five years of the basic ten-year sentence was error because the trial court relied upon improper factors to enhance the sentence. The trial court cited the following aggravating circumstances as the basis for the increased sentence: the imposition of a lesser sentence would...

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19 cases
  • Whitehead v. State
    • United States
    • Indiana Supreme Court
    • July 22, 1987
    ... ... It is within the trial court's authority to determine the weight to be given to the aggravating and mitigating circumstances in each case, and to increase or decrease the sentence accordingly. Vanyo v. State (1983), Ind., 450 N.E.2d 524, 527. We are of the opinion that given the nature of this crime, and the findings expressed by the trial court, Appellant's sentence was not manifestly unreasonable ...         Finally, Appellant claims the trial court erred in ordering him to pay a ... ...
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    • Indiana Appellate Court
    • June 17, 1987
    ... ...         Finally, Maynard argues that the trial court improperly limited opening argument to one hour per side. The scope and content of opening statements are within the sound discretion of the trial judge and will not be reversed unless a clear abuse of discretion is shown. Vanyo v. State (1983), Ind., 450 N.E.2d 524, 526. Maynard fails to demonstrate how he was harmed by this time limitation. There being no abuse of discretion, the trial court did not err in limiting opening argument ...         Remanded to the trial court to correct the judgment to show ... ...
  • Taylor v. State
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    • December 19, 1983
    ... ... We disagree ...         It is well-settled that the proper scope of final argument is within the trial court's sound discretion. Vanyo v. State, (1983) Ind., 450 N.E.2d 524; Roose v. State, (1983) Ind., 449 N.E.2d 594; Whitacre v. State, (1980) Ind., 412 N.E.2d 1202. On appeal, we will not find the trial court abused its discretion unless its decision is clearly against the logic and effect of the facts and circumstances before ... ...
  • Jorgensen v. State
    • United States
    • Indiana Appellate Court
    • February 18, 1991
    ... ... An opening statement is not evidence to be considered by the jury. Its scope is within the sound discretion of the trial judge, and a cause will not be reversed unless a clear abuse of discretion is shown. Vanyo v. State (1983), Ind., 450 N.E.2d 524 ...         We find no demonstration of prejudice arising from the first two comments. It is clear from the prosecution's opening statement that it expected Charles Morse to be a defense witness, but Morse did not testify at trial. The prosecution ... ...
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