Wiseman v. State

• Decision Date: 12 April 1988
• Docket Number: No. 49S00-8608-CR-755,49S00-8608-CR-755
• Citation: 521 N.E.2d 942
• Parties: Jamie Cliffton WISEMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 942

521 N.E.2d 942

Jamie Cliffton WISEMAN, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8608-CR-755.

Supreme Court of Indiana.

April 12, 1988.

Rehearing Denied June 19, 1988.

William L. Soards, Soards & Carroll, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal, following a trial by jury, of seven theft convictions and seven forgery convictions. Appellant was sentenced to two years for each theft conviction, to run consecutively, and to five years for each forgery conviction, to run consecutive to each other and concurrent with the theft convictions.

It must first be noted that this appeal does not meet the prerequisite jurisdictional requirements of Ind.R.App.Proc., Rule 4(A)(7). No single sentence in this case carries a minimum sentence greater than ten years. Menefee v. State (1981), 275 Ind. 390, 417 N.E.2d 302. Since the case was inadvertently filed in this court, without objection by the State, we exercise our inherent judicial authority to retain jurisdiction of this case and thereby render a decision on the merits. Neice v. State (1981), Ind., 421 N.E.2d 1109.

There are six issues presented for review: (1) whether the trial court erred in admitting State's exhibit 18; (2) whether the trial court erred in admitting State's exhibit 26; (3) whether there was sufficient evidence presented to support the convictions; (4) whether the trial court erred by sentencing appellant for seven separate thefts and seven separate forgeries; (5) whether the total sentence imposed constitutes cruel and unusual punishment; and (6) whether the trial court erred by failing to discharge appellant when more than seventy days elapsed from the date of the speedy trial request.

These are the facts from the record which tend to support the determination of guilt: Appellant worked for a janitorial service. He was assigned to clean in the Marion County Clerk's office during the hours the office was closed. He worked in the clerk's office on July 24, 1985, the night before seven checks were discovered missing from the office. Those checks, drawn on Merchant's National Bank and made to local attorneys, were deposited into the account of Dr. Jamie Wiseman at Union Federal Bank on July 25, 1985. The bank teller who performed the transaction identified appellant as the individual who made the deposit. She testified he identified himself as Dr. Jamie Wiseman, produced an identification card indicating such, and explained that he worked in a psychiatric hospital and that he was depositing these checks on behalf of his patients. The endorsements on the checks were forgeries. A handwriting expert testified that the forged endorsements were in appellant's handwriting. Prior to discovery of the stolen nature of the checks deposited, Union Federal Bank cashed seven personal checks drawn on the account of Dr. Jamie Wiseman and made out to Dr. Jamie Wiseman. The checks were negotiated between July 27 and July 30, in various amounts and at various bank branches. The handwriting appearing on those checks was determined to be that of appellant. One of the bank tellers identified appellant as the individual who had negotiated a personal check drawn on the account and made payable to Dr. Jamie Wiseman.

I.

State's exhibit 18 is appellant's time card from the janitorial service where he worked. Across the top of the card there are blank lines designated in print for "name" and "pay ending". On the one appellant's name is written and on the other a date "7-26-85" is written. Beneath this upper area containing general information there are five vertical columns showing the hours worked on the five days of the month, from the 21st to the 25th. In each column the times clocked in and clocked out are recorded. The "26" in the date on the pay-ending line is obviously written on top of typewriter correction fluid. Appellant contends that the failure of the prosecution to supply testimony concerning the facts surrounding this alteration rendered the exhibit inadmissible under the business records exception to the hearsay rule.

The business records exception to the hearsay rule has four requirements:

(1) The records offered must have been the original entries or a duplicate copy of same.

(2) The records must have been made in the regular course of business at or near the time of the event recorded.

(3) The facts must have been within the first hand knowledge of someone whose business duty it was to observe and report the facts.

(4) The witness who had knowledge of the facts must be unavailable, or unable to recall the facts so as to testify from memory.

Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865. Appellant's legal claim is that there is a lack of evidence that the alteration of the number "26" occurred in the regular course of business as required by element (2) above.

Appellant's supervisor testified that he and his secretary were in charge of keeping the records of the time cards. The time cards would be gathered up at the end of the week, the pay ending date put on them by the secretary for her purposes, the payroll would be made out by the witness, and the cards sent to the home office. The witness stated further that it was normal procedure for corrections on time cards to be made by the secretary in this manner, and that one would find quite a few of them. This was a sufficient showing to support the admission of the time card.

II.

The State was successful in gaining admission into evidence it's Exhibit 26, which was a signed and notorized affidavit by the keeper of the records of the Medical Licensing Board of Indiana. The affidavit was to the effect that there was no record of appellant being licensed to practice medicine in the State of Indiana. Appellant objected to the admission of the affidavit, arguing that it was impermissible hearsay as it was offered to prove the truth of the matter asserted and that the maker was not available and not subject to cross examination. The trial court ruled that the exhibit was admissible, relying on I.C. 34-3-17-1, which determines the admission of public records, or the lack thereof, in civil proceedings. However, I.C. 34-3-17-3 specifically provides that the statute is inapplicable in "any criminal proceedings whatsoever." Id. Therefore, reliance on that statute was erroneous. However, Trial Rule 44(B) of the Indiana Rules of Trial Procedure also deals with the introduction into evidence of official records, or the lack thereof, and does apply to criminal cases. It provides that a written statement by one with custody of official records, attesting that a diligent search of the records was made and that no record or entry such as that requested exists, is admissible to prove the lack of existence of that record. See Johnson v. State (1971), 256 Ind. 497, 269 N.E.2d 879; Worsley v. State (1974), 162 Ind.App. 34, 317 N.E.2d 908. The notorized statement of the custodian of the records of the Medical Licensing Board was sufficient to satisfy this rule and consequently the trial court did not err in admitting exhibit 26.

Further, while arguing error in admission, appellant does not assert prejudice as a result of the admission. Error by the trial court in ruling on the admission of evidence will be deemed harmless absent proof that the admission in some way harmed or prejudiced the defendant. Bradford v. State (1983), Ind., 453 N.E.2d 250; Yager v. State (1982), Ind., 437 N.E.2d 454. Proof that appellant was not licensed to practice medicine in Indiana is not dispositive of whether or not he is entitled to use the title "doctor". A person with a law degree is a "doctor", as is the holder of a Ph.D. Appellant could be licensed to practice medicine in another state or could be a "doctor of divinity". Whether of not the use of the title "doctor" was authorized in some manner was totally extraneous to the issue of guilt or innocence.

III.

Appellant contends that there was insufficient evidence presented to support the convictions. Specifically, he urges that the State's case rested entirely on circumstantial evidence, contained no eyewitness testimony concerning the thefts, and only established a mere suspicion of guilt.

Appellant was charged with uttering forged instruments. Six of the stolen checks were made payable to Rubin and Levin. The seventh was made payable to William Thompson. Evidence was presented that the endorsements on the checks were unauthorized and were not the signatures of the parties entitled to the funds. Eyewitness testimony, namely that of the bank teller who assisted in the transaction, identified appellant as the person who presented the stolen checks for deposit into the account of Dr. Jamie Wiseman and who identified himself as Dr. Jamie Wiseman. A handwriting expert testified that appellant was the party who signed the endorsements, thus reflecting that at the time of uttering appellant had the intent to deprive. This was sufficient evidence from which the jury could determine, beyond a reasonable doubt, that appellant committed the offense of forgery, in that he uttered a forged instrument.

Appellant was charged with seven counts of theft. A handwriting expert testified that the seven checks drawn on the account of Dr. Jamie Wiseman, and made payable to Dr. Jamie Wiseman, were executed by appellant. Further, a bank teller positively identified appellant as the person who presented one of the checks for payment and who identified himself as the Dr. Jamie Wiseman on whose account the checks were drawn. Appellant was charged with theft of United States currency from the bank in that he exerted unauthorized control over the property of the bank with intent to deprive the bank of its value and use. The evidence that appellant was the person who stole the checks from the clerk's office and the person who forged the endorsements was...