Wise v. State, No. 779S188

Docket NºNo. 779S188
Citation400 N.E.2d 114, 272 Ind. 498
Case DateFebruary 05, 1980
CourtSupreme Court of Indiana

Page 114

400 N.E.2d 114
272 Ind. 498
Aaron T. WISE a/k/a Thomas Frederick Wise, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 779S188.
Supreme Court of Indiana.
Feb. 5, 1980.

Page 116

Walter E. Bravard, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Aaron T. Wise a/k/a Thomas Frederick Wise, was convicted by a jury of theft, Ind.Code § 35-43-4-2 (Burns 1979 Repl.), and that jury found that defendant was a habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.). Defendant was sentenced to consecutive terms of four years for theft and thirty years under the habitual offender statute. He now appeals raising the following issues.

1. Whether there is sufficient evidence to support the conviction for theft;

2. Whether the statute of limitations had run on the habitual offender charge;

3. Whether sentencing under the habitual offender statute constitutes double jeopardy in violation of Ind.Code § 35-41-4-3 (Burns 1979 Repl.) and Ind.Const. Art. 1 § 14;

4. Whether the thirty-year sentence for habitual offenders is in violation of Ind.Const. Art. 1 § 18, Ind.Const. Art. 1 § 16 and U.S.Const. amend. VIII;

5. Whether one of the two prior felonies forming the basis for defendant's sentencing as a habitual offender was in fact a misdemeanor; and

6. Whether the sentencing procedure under the habitual offender statute violated defendant's right to trial by a fair and impartial jury.

The facts which are supportive of the judgment of the trial court follow.

On April 15, 1978, an employee of a Central Hardware store in Indianapolis, Indiana, observed defendant pushing a cart with an air conditioner and two sheets of paneling on it toward an emergency exit. It was normal procedure of that store to have a salesman accompany a purchaser of a major appliance to the front door. After notifying the assistant manager of the situation, the employee noticed that the door was open and the air conditioner was gone. The assistant manager and a sheriff's deputy observed defendant place the air conditioner in a white automobile. When defendant started to drive off he was stopped by the deputy. Defendant denied knowledge of the air conditioner and stated that he did not have a receipt for it.

[272 Ind. 500] The jury returned a verdict of guilty of theft. The state introduced certified copies of documents establishing that defendant had been convicted of theft in 1976 and fined one thousand dollars. The state also introduced documentation of a 1972 conviction of entering with intent to commit a felony.

I.

Defendant first contends that the evidence is insufficient to sustain the conviction for theft of the air conditioner. In reviewing the sufficiency of the evidence, we are constrained to consider that which is most favorable to the state, together with all reasonable and logical inferences to be drawn from that evidence. When there is substantial evidence of probative value supporting the jury's verdict, the conviction will not be set aside. Faught v. State, (1979) Ind., 390 N.E.2d 1011; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776.

Ind.Code § 35-43-4-2 (Burns 1979 Repl.) provides:

"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."

Defendant claims that two of the above elements of theft were not proved at trial. Defendant argues that the evidence was insufficient to establish that the air conditioner was the property of another, or that defendant's control over that property was

Page 117

unauthorized. He asserts that the only evidence which could establish these elements was a price tag on the air conditioner, which the evidence showed would not have been removed even if the air conditioner had been purchased, and the fact that no one was authorized to carry an air conditioner out of that particular emergency exit.

Defendant ignores other evidence from which the jury could infer ownership in Central Hardware and defendant's lack of authority. The air conditioner was in a Central Hardware store, two agents of Central Hardware deemed it necessary to interrupt defendant's control over the item and defendant did not have a receipt for the air conditioner. Defendant invites us to speculate that he had in fact returned the appliance for repairs and was merely picking up his own property. Reaching [272 Ind. 501] alternative inferences is a function of the trier of fact, not this Court. We find sufficient evidence to support defendant's conviction for theft.

II.

Defendant points out that in 1971 the statute of limitations for all felonies except treason, murder, arson and kidnapping was five years. His conviction for entering with intent to commit a felony came as a result of a...

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53 practice notes
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Mayo 1981
    ...and has been decided adversely to the defendant's position. Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d Defendant also argues that even though this issue has been decided adversely to him that these......
  • Underhill v. State, No. 181S17
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Diciembre 1981
    ...the meaning of the term as defined at the time his offense was committed. A similar assertion was made in Wise v. State, (1980) Ind., 400 N.E.2d 114, where defendant was fined but not imprisoned for a 1976 theft conviction. There, we noted defendant "might have been" sentenced from one to f......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Diciembre 1982
    ...of the statute. Funk v. State, (1981) Ind., 427 N.E.2d 1081; Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114. The statute does not set forth an offense in and of itself. See, Yager v. State, (1982) Ind., 437 N.E.2d 454; Johnson v. State, (1982) Ind., 4......
  • State v. Jones, No. 20657
    • United States
    • Supreme Court of West Virginia
    • 26 Junio 1992
    ...530 (Miss.1981); State v. Bevelle, 527 S.W.2d 657 (Mo.App.1975); Hicks v. State, 545 S.W.2d 805 (Tex.Crim.App.1977). Cf. Wise v. State, 272 Ind. 498, 400 N.E.2d 114 (1980) (statute of limitations on prior felony has no bearing on use of the conviction for recidivist purposes). See generally......
  • Request a trial to view additional results
53 cases
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Mayo 1981
    ...and has been decided adversely to the defendant's position. Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d Defendant also argues that even though this issue has been decided adversely to him that these......
  • Underhill v. State, No. 181S17
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Diciembre 1981
    ...the meaning of the term as defined at the time his offense was committed. A similar assertion was made in Wise v. State, (1980) Ind., 400 N.E.2d 114, where defendant was fined but not imprisoned for a 1976 theft conviction. There, we noted defendant "might have been" sentenced from one to f......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Diciembre 1982
    ...of the statute. Funk v. State, (1981) Ind., 427 N.E.2d 1081; Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114. The statute does not set forth an offense in and of itself. See, Yager v. State, (1982) Ind., 437 N.E.2d 454; Johnson v. State, (1982) Ind., 4......
  • State v. Jones, No. 20657
    • United States
    • Supreme Court of West Virginia
    • 26 Junio 1992
    ...530 (Miss.1981); State v. Bevelle, 527 S.W.2d 657 (Mo.App.1975); Hicks v. State, 545 S.W.2d 805 (Tex.Crim.App.1977). Cf. Wise v. State, 272 Ind. 498, 400 N.E.2d 114 (1980) (statute of limitations on prior felony has no bearing on use of the conviction for recidivist purposes). See generally......
  • Request a trial to view additional results

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