Lead Opinion
Defendant, Clarence Edward Potter, Jr., was convicted of robbery, a class B felony, Ind.Code § 35-42-5-1 (Burns 1979 Repl.) and theft, a class D felony, Ind.Code § 35-43-4-2 (Burns 1979 Repl.) He was sentenced to a term of fifteen yеars for the robbery conviction and concurrently to four years for the theft conviction. He raises the following three issues in his direct appeal:
1. whether the trial court erroneously gave a jury instruction on flight;
2. whether the denial of defendant's motion for a continuance resulted in ineffective representation of counsel; and
3. whether the trial court erred in sentencing defendant for both the robbery and theft convictions.
A brief statement of the facts most favorable to the State reveals that on December 21, 1981, Defendant, while armed with a handgun, robbed the victim at her apartment in Dyer, Indiana. Upon Defendant's demand, the victim handed over $125, jewelry, and a suitcase. Defendant then tied up the victim and took her car keys. The victim subsequently discovered that her cream-colored 1981 Plymouth Champ was missing. Three days later, an Indiana state trooper observed Defendant, who was driving a cream-colored 1981 Plymouth Champ, make a U-turn on the Indiana Toll Road. The officer attempted to pull Defendant over for the traffic violation. Defendant refused to pull over and increased his speed to over 80 miles per hour. Defendant finally was apprehended at a road block, and a computer check on the car revealed that it had been stolen December 21, 1981, from Dyer, Indiana. Defendant was charged with robbing the victim of $125 and, as a separate offense, with theft of the automobile.
I
Defendant first argues that the trial court erred when it gave the following instruction: "Evidence of flight and other actions calculated to hide 'a crime or conceal identity is some evidence of consciousness of guilt and are circumstances which may be considered by you in connection with all other evidence." Defendant contends that his attempted flight from police related only to the traffic violаtion for which he was being pursued and was irrelevant to the robbery and theft charge. He argues further that the above instruction misled the jury and was prejudicial to him.
It is well established that flight may be сonsidered as circumstantial evidence of guilt. Coleman v. State, (1976)
II
Defendant next alleges that he was denied effective representation because the trial court denied his motion for a continuance in order tо let Defendant's private counsel prepare for trial. Defendant had been represented by a public defender throughout his arraignment and the pretrial procedures but hаd hired private counsel two days before trial. Defendant then
Strong and convincing evidence showing that an attorney's conduct made the trial a mockery of justice and denied defendant adequate legal representation is necessary to overcome the presumption of counsel's competency. Tessely v. State, (1982) Ind.,
Considering the above facts and that the motion for continuance was made the day of trial, it cannot be said that the trial judge abused his discretion in dеnying defendant's request for a continuance. See German v. State, (1978)
III
Finally, Defendant argues that he should not have been sentenced for both the robbery and theft convictions becаuse theft is a lesser included offense of robbery; therefore, the two convictions merged. Although the principle is true, Rogers v. State, (1979) Ind.,
The judgment of the trial court is affirmed.
Concurrence Opinion
concurring in part, dissenting in part.
Although I concur in the majority opinion regarding the first two Issues, I must respectfully dissent to the majority's conclusion on Issue III.
In Elmore v. State, (1978)
While there may be factual situations when this principal would not apply, this case is not one. The facts show that defendant robbed the victim of рersonal items and her car keys, which were the means of control for the car. He also inquired as to what kind of car she drove. He then used the keys to take the car from the parking lot of the apartment house. Thus defendant committed theft, Ind.Code § 35-48-4-2 (Burns 1979 Repl.), when he took the victim's car keys and obtained unauthorized control over the victim's car with the intent to deprive the victim of the property. At the same time, he committed robbery by intentionally taking property from another person. See Ind.Code § 35-42-5-1 (Burns 1979 Repl.) Here the elements necessary to prove the robbery included the elements necessary to prove theft of the car.
The majority focuses on the charging information and the fact that defendant took the car from the parking lot, not from the victim, and concludes defendant committed a separate offense. This rationale ignores the fact that defendant essentially took the car from the victim when he took her car keys and asked which car was hers. The majority's reasoning also would allow a defendant who robbed a person in his home, taking car keys and removing a car from the garage, to be convicted of both theft and robbery while a defendant who robbed a person in his garage and took a car could be conviсted of robbery or theft but not both. This result conflicts with the rationale of Elmore and Webster. Contrary to the majority's conclusion, the taking of the car from the parking lot was not an additionаl theft, unrelated to those in the apartment. Rather, it was a lesser included offense of the robbery of the victim's car keys and personal property. See Holt v. State, (1978)
Therefore, I believe the trial court erred when it sentenced defendant for both robbery and theft. I would remand the cause to the trial court with instructions to vacate the judgment and sentence on the theft conviction.
PRENTICE, J., concurs.