Walden v. State

• Decision Date: 25 May 1989
• Docket Number: No. 69A01-8812-CR-394,69A01-8812-CR-394
• Citation: 538 N.E.2d 288
• Parties: William J. WALDEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 288

538 N.E.2d 288

William J. WALDEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 69A01-8812-CR-394.

Court of Appeals of Indiana,

First District.

May 25, 1989.

James B. Morris, Osgood, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant, William J. Walden (Walden), was convicted by a Ripley Circuit Court of receiving stolen property, a Class We reverse.

D felony under IND. CODE 35-43-4-2(b). From an enhanced sentence of four years, he appeals.

STATEMENT OF THE FACTS

Robert E. Cook, his wife, Sara, both of whom are in their early seventies, reside in North Palm Beach, Florida. Robert suffers quite badly from emphysema and loss of hearing. Sara suffers from heart disease, respiratory disease, glaucoma, congestion, and nerve problems for which she had been hospitalized at a time near the occurrence of the events herein described. During the latter part of 1987, they had advertised for sale a 1977 Cadillac titled to Robert. In January of 1988 a man who identified himself as "Bill Walden" (Bill) appeared at their residence and indicated an interest in buying the car. He was described by the Cooks as a nice looking, well-built, young man who was clean shaven, dressed neatly in jeans and a sport shirt, and who stood approximately 5'8" tall. They estimated his age to be in the late twenties or thirties. Cook accompanied Bill as the latter test drove the car. Upon returning to the Cook residence, Bill immediately accepted the Cooks' offer of $1250 for the car. He produced a check, filled it out, signed it as "Bill Walden" and handed it to Cook. The check bore the printed name and address of Bill Walden, 401 Michigan Street, Greensburg, Indiana. It was drawn on the Napoleon State Bank, Napoleon, Indiana.

January 1, 1988 fell on a Friday, a time when most offices and business houses were closed for the New Year's weekend. The two agreed that Bill could drive the car to his residence on Sanger Island, a distance of about three miles, to show the car to his wife. He would return the car that evening and on the Monday following, the parties would go to the license branch to transfer and license the car. Concluding their deal on that amicable note, Bill drove off in the Cooks' Cadillac never to be seen by the Cooks again. Not surprisingly, the check bounced.

At 8:05 p.m. on January 6, 1988, Officer Bonnlander of the Batesville, Indiana Police Department stopped Cooks' Cadillac being driven the wrong way on a one-way street. Unable to produce an operator's license, the driver and sole occupant of the car gave the officer a certificate of registration in the name of Robert E. Cook whose identity the driver claimed. After issuing the driver a ticket in the name of Robert E. Cook, the officer released him. A very short time later, upon discovering that the car had been stolen, Officer Bonnlander found and arrested the driver who was identified as William J. Walden, the defendant herein. Officer Bonnlander estimated that Walden was 35 to 40 years old. In the car amongst a packet of Walden's papers, Officer Bonnlander found a forged bill of sale purporting to transfer the car from Cook to "Bill Walden."

Walden was charged in the Ripley Circuit Court with receiving stolen property under IND. CODE 35-43-4-2(b). The only evidence produced by the State at trial of the Florida transactions were the depositions of Robert and Sara Cook. The only evidence of the Indiana events was related through the testimony of Officer Bonnlander. Walden produced no evidence. There is no evidence, photographs, handwriting, or otherwise, in the record indicating that the State made any effort to demonstrate that the William J. Walden arrested in Batesville was or was not the same person as the Bill Walden of Florida about whom the Cooks testified.

ISSUES

Walden presents seven issues for review. However, because of our disposition of Issues II and III, which address the sufficiency of the evidence, we will not discuss the other five issues. We will discuss Issues II and III together, which issues are:

I. Whether proof that an individual is guilty of theft by exerting unauthorized control over property will defeat a specific charge for receiving stolen property under IND. CODE 35-43-4-2(b).

II. Whether the evidence elicited at trial was sufficient to establish Walden was guilty of receiving or whether it established he was guilty of theft.

DISCUSSION AND DECISION

The threshold question presented is whether the charged offense of receiving stolen property can be committed by the actual thief under IND. CODE 35-43-4-2(b). The resolution of that question is to be found in the historical perspective of the crime, the cases construing it, and the theft act. The theft act was originally enacted in 1963. Acts 1963 (Spec.Sess.) Chapter 10, Sec. 3 defined theft in five subparagraphs. A person committed theft when he knowingly (a) obtained or exerted unauthorized control of the property of the owner; (b) obtained by deception control over the property; (c) obtained by threat control over the property; (d) obtained control over stolen property knowing the property to have been stolen; or (e) brought property into the state which he had obtained control of by theft.

In the case of Coates v. State (1967), 249 Ind. 357, 229 N.E.2d 640, the court held that under the 1963 Act subsections (a) and (b) were separate offenses, and where the defendant was charged with receiving under (d) proof that he was the actual thief under (a) entitled him to an acquittal. The court noted that this result was consistent with the result under prior law where proof of larcency under the charge of receiving presented a failure of proof as they were distinct crimes.

A similar result was reached in Lawrence v. State (1968), 250 Ind. 161, 235 N.E.2d 198. In that case the defendant was charged with theft by deception under subsection (b) of the 1963 Act. However, the jury's verdict found the defendant guilty of theft by obtaining and exerting unauthorized control under subsection (a). The court reversed, holding that the verdict was inconsistent with the charge.

Commencing with Green v. State (1972), 258 Ind. 481, 282 N.E.2d 548, some narrowing of the rule announced in Coates occurred. In Green the defendant was charged with exerting unauthorized control under subsection (a) of the theft act. The evidence showed that the defendant raised the amount of a payroll check made to her order to a sum greater than its original amount. The argument was made that pursuant to Coates and Lawrence she was guilty of theft by deception under subsection (b) or guilty of nothing at all. The court held that subsection (a) was very broad and did not limit the means by which unauthorized control may be obtained. The prosecuting attorney had the option to present the charge under some specific section of the statute or to present the charge under the more general provision (a). The court distinguished Coates:

In that case the charge was theft by obtaining control of property stolen by another while the evidence showed a variance, namely that the appellant stole the property himself.

258 Ind. at 484, 282 N.E.2d at 550. The court continued:

In this case before us, the section defining theft as when one "knowingly obtains or exerts unauthorized control over property of another" comprehends a very broad field of theft, including any other narrowly defined activity specifically defined in the statute, such as obtaining "by deception control over property of the owner or a signature to any written instrument."

Id.

Green was followed by Elmore v. State (1978), 176 Ind.App. 306, 375 N.E.2d 660. Elmore held that the fact that there are other included offenses which are more narrowly defined, namely receiving stolen property, does not prohibit the state from prosecuting under the broader provision of the statute such as the one in that case which covered any unauthorized control over the property of the owner.

Finally, Green and Elmore were followed in Nash v. State (1982), Ind.App., 433 N.E.2d 807. In Nash the defendant was charged under IND. CODE 35-43-4-2(a) with theft by exerting unauthorized control over property. However, the evidence showed that he had knowingly purchased the property from the original thieves. At that time, the theft statute, IND. CODE 35-43-4-2, read as follows:

(a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.

(b) A person who knowingly or intentionally receives, retains, or disposes of the property of another person that has been the subject of theft commits receiving stolen property, a Class D felony.

The court held:

This raises the issue whether evidence sufficient to sustain a conviction of receiving stolen property under subsection (b) is sufficient to sustain a conviction pursuant to subsection (a) of the theft statute. We hold it is. It is well established in Indiana that subsection (a) of the theft statute, which makes it an offense to knowingly exert unauthorized control over property of another, comprehends a broad field of conduct including any other narrowly defined activity specifically enumerated in the statute, such as receiving stolen property. Green v. State (1972), 258 Ind. 481, 282 N.E.2d 548; Elmore v. State (1978), Ind.App., 375 N.E.2d 660, vacated on other grounds, 269 Ind. 532, 382 N.E.2d 893. In essence, facts sufficient to sustain a conviction of receiving stolen property pursuant to subsection (b) are also prima facie proof of the general charge of exerting unauthorized control over property. As our supreme court stated:

The fact that there are other included offenses, which are more narrowly defined does not prohibit the...