*1 DUNCAN, Appellant James Paul Below),
(Defendant Indiana, Appellee
STATE Below).
(Plaintiff
No. 1278S287. Court of Indiana.
Supreme
Sept. *2 Dumas, Valparaiso, appel-
Bruce A. for lant. Sendak, Gen., Atty. Philip
Theodore L. R. Blowers, Gen., Deputy Atty. Indianapolis, appellee. (Burns 35-3.1-l-ll(a) 1975). Ind.Code § PRENTICE, Justice. are severed Whether or was convicted (Appellant) Defendant the trial court’s lies within generally trial Conspiracy of two felonies: by jury trial discretion; thus, error must be demon- clear Felony, Ind.Code § to Commit with the exer- we are to interfere strated if referred to as (Burns 1975) [hereinafter Essentially, the de- of that discretion. cise Burglar Possession of “Conspiracy,”] and *3 first, that is two-fold: argument fendant’s Felon, Ind.Code by Tools Convicted of “Possession” was a an element because (Burns 1975) (repealed 1976 35-13-8-1 § conviction, pri- and because the felony prior 4, Ind.Acts, Pub.L.No.148, effective Octo- § Burglary, was of in this case or conviction 1, 1977) referred to as ber [hereinafter prior evidence of the hearing jury, upon the was also The defendant “Possession.”] conviction, likely pro- have inferred could under an Habitual Criminal found to be and enter engage burglaries to pensities 1975) (Burns and was Ind.Code § them; second, commit to agreements imprisonment upon each sentenced to life element of “Possession” that because an convictions. His direct the aforementioned burglary, jury, intent to commit was an following issues: appeal presents to agreement an hearing evidence of upon deny- court erred in (1) Whether the trial inferred likely could burglary, commit motion for severance ing the defendant’s We find burglary. to commit an intent charges. and Possession Conspiracy merit, but to be without argument second (2) pertain- statute the first. persuaded by Whether the Indiana we are by a Burglar to Possession of Tools ing felony may be commit a Intent Felon is constitutional. Convicted surround the circumstances inferred from erred in ad- (3) Whether the trial court ing an incident. Bonner prior criminal conduct. mitting evidence Ind., Young v. 392 N.E.2d 285. In this trial court erred in ad- Whether the accomplice case, and an the defendant mitting physical certain arrested, outside a (Marvin) night, at were court erred in ad- Whether the trial had observed police A officer drugstore. documentary evidence. mitting certain drugstore, prying on the roof of them Conspir- (6) Whether the convictions for gym bag tools and a open a vent. Some well as the determi- acy and Possession as drugstore vicinity of the found in the sup- Criminality were nations of Habitual From these circum after the arrests. soon ported by the evidence. an stances, reasonably infer jury could regardless of burglary, intent to commit in al- (7) Whether the trial court erred to commit agreement of an any evidence Habit- lowing jury multiple to consider burglary. sentencing Criminality ual counts and thereon to two terms of altogether an We are confronted imprisonment. life in reference evidence different situation its effect felony conviction and imposed upon prior of a
(8) Whether the sentences The de conviction. upon “Conspiracy” cruel and unusual the defendant constituted proof of the correctly states that fendant punishment. pri- proof of a charge required “Possession” Ind.Code 35- felony conviction. See § or I ISSUE However, was not (Burns 1975). it 13-8-1 that the tri The defendant contends “Conspiracy” to the respect with required denying his motion al court erred high probability is a charge, and there “Conspiracy” sever, purposes, for trial and un prejudicially impacted presence its is charges. The claim and “Possession” charge. necessarily upon such “to necessary in order that severance State, (1972) 259 Ind. defend In Lawrence v. determination of the promote a fair 835-36, we held 314-15, each crime.” guilt or innocence ant’s [as to] Legislative While it is true that fairness a bi- that fundamental mandates proceed- in Habitual Criminal furcated trial scheme contains no enumerated definition necessary ings. tools,” Bifurcation is in order to “burglar equally it is true that a from “prevent becoming unduly provided, to-wit: “burglary” definition of is by the introduction of evidence influenced boat, any Whoever breaks and enters into crimes.” Id. at 286 N.E.2d at wharf-boat, water-craft, inter- or other reasoning We find the in Lawrence railroad-car, car, street-car, urban [auto- to the case at bar. applicable trail- mobile], an attached or unattached er, camper; airplane, semitrailer or or or Here, charged the defendant was aircraft, any building other or or struc- “Conspiracy” and “Possession” and trial dwelling place ture other house or timely court denied a to sever than a motion habitation, (2) charges consequence, two for trial. In of human with the intent jury unnecessarily felony therein, commit a guilty heard evidence of a shall be prior felony during conviction burglary degree, the trial of in the second *4 principal charges. Although the evi- imprisoned conviction shall be not less dence “Possession” was competent charge, it was irrelevant with with respect to the years than two [2] be years disfranchised nor more than five rendered [5] respect “Conspiracy” charge. to the Its incapable holding any of office of trust or for potential prejudice is self-evident. profit any period: determinate Pro- Lawrence, 310, 259 at Ind. 286 N.E.2d at vided, however, court That the shall have State, (1968) (citing 833 Rowe v. 250 Ind. power suspend prison sentence and 547, 576). 237 N.E.2d place probation in ac- defendant on existing cordance with law. Ind.Code The trial court’s refusal to sever the 35-13-4-4(b) (Burns 1975) (emphasis § “Conspiracy” charges and “Possession” was added). having error potential substantial harm. Accordingly, judg- we reverse the Thus, tools,” “burglar applicable as to this upon “Conspiracy” ment count. case, are those tools which facilitate breaking entering any vehicle or II
ISSUE structure hereinbefore mentioned. More- defendant contends the In over, possession of such tools is not The defining diana statute the crime of “Posses prohibited: necessarily in and of itself it is sion” is unconstitutional. The pro statute possession coupled with intent to commit an vides: burglary. Steinbarger the crime of See State, 598,
If any person previously (1948) convicted Ind. 82 519. of a 226 Specifically, the defendant claims possession 8—1 Pub.L.No.148, 4, felony such any burglar shall be prima facie evidence of the intent more than fourteen felony, and on conviction thereof shall be tent imprisoned not commit (Burns person to commit found burglary. of such tools or 1975) (repealed tools shall be § less having the crime of or effective Oct. than implements [14] deemed Ind.Code two years, his [2] implements guilty possession years § burglary, Ind.Acts, and the 35-13- 1977). of a nor in- convicted felons. time and decline to “Possession” “Possession.” It is rational for the State stitutional keep burglar reason to deviate from that reasonably differentiated Ind. and nonfelons in Finally, 388, We also hold that 126 N.E.2d in Goldstine v. challenge. statute tools out of the defining do so. from an We 581, we upheld perceive between felons holding the crime of identical con- possession Legislature (1955) no valid at this 234 of statute is “void for vagueness,” and that it III ISSUE unreasonably classifies convicted felons.
We find this
error to
assignment
assigns
to be without mer-
The defendant next
it.
ruling
the trial court’s
that evidence of
Thus,
admissibility
of
items
this
the defendant
criminal conduct
prior
principal
showing
wit-
The
an
hinge
was admissible.
State’s
case
did
Jeffrey
against
Rather,
ness
custody.
exhaustive chain
Marvin,
accomplice
an
defendant
testimony
accompliee-Mar-
identification
testified,
at
Marvin
during the events
bar.
Deputy Rogers was suffi-
vin and Chief
objection,
over
that he and
defendant
Again,
presented.
error has been
cient.
drugstore,
night,
had
another
at
burglarized
incident at issue.
prior
one week
to the
V
ISSUE
that entrance on
Marvin further testified
assigns
to the
defendant next
error
The
the roof.
through
that occasion was effected
documentary
of certain
admission
us was executed
crime now before
prior burgla-
Ten
and Eleven
to the
Exhibits Numbers
nearly
manner
identical
at
ry: attempted burglary
drugstore,
prin-
during the trial of the
were admitted
Hence, the evi-
night, through the roof.
were offered to establish
cipal
the “common
was admissible under
dence
conviction,
prior felony
an
defendant’s
plan”
general
or
exception
scheme
Exhibit Number
element
“Possession.”
conduct is inadmis-
rule that
criminal
per-
documents
Ten
contains certified
Biggerstaff
sible. See
conviction of
taining to the defendant’s
Manuel v.
Ind.
361 N.E.2d
Degree,
convic-
said
Burglary
the Second
904. No
by the District
having
rendered
tion
been
presented.
been
error has
Oklahoma, on
County,
Jan-
of Custer
Court
certification
uary
Although
ISSUE IV
*5
trial,
did
the defendant
not contested at
assigns
next
error to the
The defendant
were in-
the
then contend that
documents
brace, gym
drill
ruling
trial court’s
that a
sufficient,
themselves,
him to
in
to connect
in
bag
admissible
evi-
and screwdriver were
Thereupon,
the
the State
1973 conviction.
urges
Specifically,
dence.
(11)
Eleven
offered Exhibit Number
—certi-
sufficiently
were not
con-
that
the items
to
defend-
fied
the
pertaining
documents
event,
that,
any
to him and
in
nected
Peniten-
ant’s record
Oklahoma State
at the
custody was
complete chain of
established.
objected upon the
tiary. The defendant
agree.
We do not
prison
was irrele-
grounds that the
record
contention, there
As to the first
prejudicial.
vant and
probative
value
substantial evidence
that
admitted items
adduced at trial
the
in stat
is correct
The defendant
as,
were,
fact,
sufficiently
or
the same
upon the State to
ing
it was incumbent
that
to,
at the scene of
the items found
similar
fact,
was,
person
he
the
that
demonstrate
the items were found
the crime. Because
A mere docu
felony.
of the
convicted
and
the
the crime
because
at the scene of
one with
ment,
a conviction of
relating to
scene, a
at the
suf
defendant was arrested
would
defendant
as the
the same name
connection
established.
ficient
State,
v.
Kelley
insufficient. See
have been
contention, we note that
to the second
As
Exhibit
(1933)
We are confronted
sit
has been
similar
as to certi-
regard
uation with
to Exhibit Numbers
copies
records,
public
fied
per-
we
(13),
Twelve
and Thirteen
which were
justification
ceive of no
require-
for such a
during
por
admitted
the Habitual Criminal
ment.
proceedings.
tion of the
Exhibit Number
Twelve
contains certified documents
ISSUE VI
.
pertaining to the defendant’s conviction of
challenges
defendant next
the
Transportation
Proper
Interstate
of Stolen
sufficiency of the
He
first con
ty,
having
said
conviction
been rendered
that
tends
the evidence was insufficient
to
the United States District Court
support
“Conspiracy”
conviction be
July 26,
Northern District of Indiana on
cause
failed
prove
State
to
that
1972. Again, although certification was not
object
the conspiracy
felony.
was a
Hav
contested, the defendant contended
that
ing
hitherto determined that
“Conspir
sufficient,
documents were not
in them
acy”
stand,
cannot
conviction
we will not
selves,
connect
him to the 1972 convic
address this issue.
tion. The State subsequently offered Ex
(13)—certified
hibit Number Thirteen
docu
Secondly, the defendant contends that for
ments pertaining to the defendant’s record
three reasons
evidence
was insufficient
at the United States Penitentiary in Terre
to sustain
1)
the “Possession” conviction:
Haute,
alia,
containing,
fingerprints
inter
prove
Degree
that
State did not
Second
For
defendant.
the reasons hereinbe- Burglary
felony, 2)
to be a
that
State
announced,
fore
we
hold
Exhibit Num
prove
brace,
did not
drill
screwdriver
ber Thirteen
tending
was relevant as
tools,
gym
bag
burglar
3)
identify the
the person
defendant as
named
prove
State did not
a connection
Moreover,
the 1972 conviction record.
between the above items and the defendant.
necessary
Exhibit was
under Ind.Code
We have
resolved
latter two
conten-
35-8-8-1,
(Burns 1975)
§§
tions earlier
opinion
in this
in manner
demonstrate that
the defendant had been
adverse to
position,
the defendant’s
see Is-
imprisoned in a penal
institution
IV,
sues Number II
supra,
and will not
commission of a felony.
belabor them here.
*6
questions
Defendant also
that a
As to
proved
whether or not the State
proper foundation was laid for the introduc
Degree Burglary
Second
a felony
in
tion of
argument ap
these exhibits. This
committed,
time
Oklahoma at the
it was
we
pears
predicated
to
upon
the failure of
held in
past
the
that when a charge is
the
to
State
establish the chain of custody
upon
based
a
in
crime committed
another
exhibits,
of the
presumably from the time
jurisdiction, we will deem the crime a felo-
they were certified in accordance with the
ny
punishable by
if it is
imprisonment
statute pertaining
cop
to the admission of
State,
prison.
state
Kelley v.
204
public records,
ies of
Ind.Code
34-1-17-7
§
612,
Ind.
603
that,
the trial courts discretion and
within
Having deter-
documentary
the
therefore,
demonstrated
error must be
against
the defendant’s
clear
mined that
issue
with the exercise
if we are
interfere
not further address it.
position, we need
with the
This is consistent
that discretion.
35-3.1-1-
statutory provision
§
Ind.Code
ISSUE VII
1975)
11(a) (Burns
and also with our case
I,
upon
view
Issue
this
holding
In
of our
subject.
on the
law
is
issue moot.
Texas,
(1967)385
Spencer v.
In
U.S.
the
L.Ed.2d
United
S.Ct.
ISSUE VIII
Supreme
that
14th
Court held
a
States
assignment
The
final
of error
defendant’s
process claim does not
Amendment due
a life
pertains
imposition
sentence
this,
under
such
arise
circumstances
as
in this
He
under
circumstances
case.
charges,
hears two different
jury
where
argues
Habitual
life sen-
that an
Criminal
proof
previ-
of a
requires
one of which
Transpor-
tence
the crimes
Interstate
felony
Spencer involved
ous
conviction.
Degree
Property,
tation
Second
Stolen
which
statute in
the de-
habitual criminal
Burglary
disproportion-
“Possession” is
and,
charged
a crime
in
fendant was
with
severity
ate
of those crimes
count,
being
charged
an additional
therefore,
We do not
cruel
unusual.
'
criminal. The habitual criminal
habitual
agree.
course,
proof of
required, of
charge
essence,
In
contention is
defendant’s
Supreme
The
convictions.
felony
rejected in
identical to those advanced and
Spencer
there was
in
Court found
State, (1979)Ind.,
Norris v.
further he testified that and Duncan had judge’s We should a trial discre- reverse burglary drugstore committed a in tionary ruling we only if find the exercise Rensselaer, Indiana, about prior a week of his clear discretion was error. Under the incident, this they which had obtained case, facts and it is circumstances this by roof, entry drilling through the such as apparent appraisal no such can be made and they had done accomplice’s here. The testi- I justified therefore do not that we see are mony concerning the crime in Rensselaer reversing judge ordering trial admissible, because of the nature of new trial. Tewell v. Ind. admissible evidence in a conspiracy charge, State, Frith v. permits and the rule of evidence that ad- 186. I concur with mission of a crime it where shows majority on all other issues. motive, intent, identity, or a common or plan. scheme then, question is in the face of all of against
this evidence in this
case, whether the trial court abused its dis- by
cretion allowing jury to hear that he
had previously been of burglary convicted
in Oklahoma. is There no claim here that the jury was not properly instructed to use HOLLAND, Appellant, Thurman that conviction only the purpose of find- ing necessary element in possession burglary tools charge, rather than evidence HARGAR, Edgar B. as Sheriff of of guilt of the burglary charge. We have Tippecanoe County and the State never said there is time a previous when Indiana, Appellees. conviction cannot shown jury. be to a It is No. 1079S280. only showing when the of that conviction prejudice would so over and above Supreme of Indiana. Court the considerations justifying its showing it would be Spencer Sept. reversible error. Texas, supra, that, said and Drew v. States, United (D.C. 331 F.2d 1964), Cir. by
relied on the appellant, said that. The
Circuit Appeals Court of for the District of
Columbia reversed the trial court for re-
fusing to sever in the Drew case because it
found separate two and unrelated joined and tried the jury.
That case a robbery involved and an at-
tempted robbery that occurred on different
days in places. different The Drew court
noted joinder might justified that such a cases,
in certain but found it that was not
justified for appellant Drew because the
record showed a confusion of the facts as
they related to each the crimes charged,
and a tendency for the final argu- State on
ment to bunch together all of the facts that
would tend to the find the de-