Whitehair v. State
| Decision Date | 31 July 1995 |
| Docket Number | No. 55A05-9403-CR-110,55A05-9403-CR-110 |
| Citation | 654 N.E.2d 296 |
| Parties | Richard WHITEHAIR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Richard Whitehair appeals from his conviction of receiving stolen property, a class D felony. We affirm.
Whitehair raises seven issues for our review, which we consolidate and restate as follows:
1. whether the trial court erred in admitting evidence of extrinsic acts of misconduct;
2. whether the trial court erred in denying Whitehair's two motions for mistrial;
3. whether the trial court abused its discretion in allowing the State to cross-examine a witness regarding Whitehair's discharge from the Navy;
4. whether the trial court erred in refusing to allow Whitehair to remove a juror for cause;
5. whether the trial court erred when it allowed the State to amend the information; and,
6. whether the trial court erred in refusing Whitehair's tendered instruction on missing witness testimony.
The facts most favorable to the judgment of conviction are as follows. Morgan County Sheriff's Deputy Larry Sanders received information from a man named Donald Somers that a stolen Honda 250 "quad," a four-wheel all-terrain-vehicle ("ATV"), of reddish color was in Whitehair's garage. The description of the ATV matched the description of an ATV which was stolen within the preceding two weeks. Acting on Somers' tip, Sanders went to the Whitehair residence to see if the VIN number on the ATV in Whitehair's garage matched that of the stolen vehicle.
Whitehair's wife, Erica Whitehair, was at home when Sanders arrived. Mrs. Whitehair escorted Sanders to the garage where he obtained the VIN numbers from the vehicle. Although the ATV in Whitehair's garage was not the stolen ATV that Sanders was originally investigating, further investigation revealed that it had been stolen from a residence in Putnam County in November of 1991.
Sanders returned to the Whitehair residence, took possession of the ATV, and asked Mrs. Whitehair to have Whitehair contact him. Whitehair contacted Sanders the next day and was advised of his Miranda rights. Whitehair informed Sanders that he had purchased the ATV back in March or April of 1991, and that he had paid approximately $2,100.00 in cash and a Yamaha 250 for the ATV. Whitehair said that he did not have a title for the ATV, but that he did have a receipt. Sanders noted that Whitehair claimed to have purchased the vehicle approximately eight months prior to when it was reported stolen.
Whitehair claimed that he did not know the name of the person that had sold him the ATV, and informed Sanders that the receipt for the ATV was at home, in a box. When Sanders asked Whitehair to go get it, Whitehair refused, saying that his wife was not at home and that he did not have a key to get in the house. Sanders then called the Whitehair residence and Mrs. Whitehair was at home. When Sanders hung up the phone, he informed Whitehair that his wife was at home and asked if they could go to the house and get the receipt. Whitehair responded by saying that he did not know where the receipt was. Whitehair never produced a receipt for the ATV.
On August 13, 1992, Whitehair was charged with one count of receiving stolen property. Specifically, the information alleged that Whitehair "did knowingly retain the property [of] Curtis Sinclair, to wit: 1988 Honda TRX 250R ..., said property having been the subject of a theft in Putnam County, Indiana on or about the 16th day of November 1991." Record, p. 8. On January 12-13, 1994, a jury trial was conducted. At trial, Mr. Sinclair testified that the ATV at issue in this case was the one that had been stolen from his home. The jury returned its verdict finding Whitehair guilty of receiving stolen property.
On February 10, 1994, Whitehair was sentenced to 1 1/2 years in the Morgan County Jail. The sentence was suspended on the condition that Whitehair serve a thirty day jail sentence, followed by ninety days of work release and sixty days on home detention, and that Whitehair comply with the terms of probation for a three year probationary period.
Additional facts will be provided as necessary for the resolution of the issues presented on appeal.
The first issue Whitehair raises for our review is whether the trial court erred in admitting evidence of extrinsic acts of misconduct. Specifically, Whitehair contends that the trial court committed reversible error in allowing the State to introduce evidence regarding stolen tires found in his garage when the stolen ATV was discovered. Whitehair advances a number of arguments in support of his contention that the trial court erred, each of which we will address in turn.
On appeal, we will reverse a trial court's decision to admit evidence only on a showing of manifest abuse of discretion which results in the denial of a fair trial. Shaw v. State (1992), Ind.App., 595 N.E.2d 743, 747, reh'g denied. "To constitute an abuse of discretion, the trial court's decision must be one which is clearly against the logic and effect of the facts and circumstances before the court." Stone v. State (1989), Ind.App., 536 N.E.2d 534, 538, trans. denied.
Prior to trial, Whitehair filed a motion in limine which sought the exclusion of evidence pertaining to, among other things, extrinsic acts of misconduct. At the hearing on the motion in limine, the State argued in pertinent part that evidence regarding Whitehair's possession of stolen tires was admissible under two theories. The State argued first that the evidence went to show that Whitehair and one of the State's witnesses, Somers, were each part of an organized theft ring engaged in the theft and resale of property. The State also argued that evidence regarding the stolen tires was admissible to show that Whitehair had knowledge that the ATV was stolen. After extensive argument, the trial court ruled in pertinent part that the State could introduce evidence regarding the stolen tires to show Whitehair's state of mind, i.e., his knowledge. The trial court subsequently reversed its ruling, however, pending another hearing outside the presence of the jury.
During the course of the trial, Somers testified that he had accompanied one Tory Brawner to Whitehair's home. Somers testified that Whitehair showed him the ATV and that Whitehair and Brawner told him that the ATV was stolen. When the State asked Somers why the men would not have hidden such information from him, Somers responded "Because they trusted me and didn't think much about it, I don't know." Record, p. 229. At this point, defense counsel objected to the introduction of evidence of extrinsic acts of misconduct, and a hearing was conducted out of the jury's presence. The State argued that the evidence was admissible to show the nature of the relationship between Somers, Brawner, and Whitehair in order to demonstrate why Whitehair would tell Somers that the ATV was stolen. The trial court ruled that the evidence was admissible for that purpose.
Somers testified that he knew Whitehair through Brawner, that he (Somers) and Brawner had stolen things together before, and that Whitehair and Brawner told him that the ATV was stolen. The following colloquy then transpired:
Record, pp. 244-45. Somers subsequently testified that he and Brawner had been picked up for stealing some tires and a dirt bike. Somers also testified that he later went to the police station and identified the ATV at issue as the same one he had seen in Whitehair's garage.
The State then called its next witness, Deputy Sanders. In pertinent part, Sanders testified that when he was at the Whitehair residence checking the VIN numbers on the ATV, Mrs. Whitehair told him that he could look at anything in the garage that he wanted. Sanders observed some tires and rims (collectively, "the tires"), partially covered up with a blanket. Whitehair's counsel objected to this testimony, incorporating his arguments made on the motion in limine, and arguing that the evidence regarding the stolen tires was not admissible. The State argued that evidence regarding the stolen tires was admissible to show that Whitehair had knowledge that the ATV was stolen, i.e., that Whitehair "knowingly" possessed stolen property. The trial court overruled Whitehair's objection, but indicated it would admonish the jury regarding the limited purpose for which the evidence regarding the tires was being admitted. Sanders testified that he believed the tires were the same tires described in a stolen property report he had taken two days earlier. Sanders noticed that the back of the tires had "Tory rear" and "Danny rear" written on them, making him think of Tory Brawner and Danny Long. Sanders later confirmed that the tires were stolen. The trial court admonished the jury that the evidence of Whitehair's possession of stolen tires was admissible only to show his intent and/or knowledge of possession of stolen property and that it should be considered only for those reasons.
Whitehair argues first that the trial court erred in admitting evidence regarding the stolen tires because such evidence was not admissible under Ind. Evidence Rule 404(b). Indiana Evidence Rule 404(b) provides:
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