Eileen R. SNELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 4-1283A424
Court of Appeals of Indiana, Fourth District
Dec. 27, 1984.
472 N.E.2d 215
Rice alternatively argues the conduct which рrompted his termination of employment fell under an alleged public policy exception to the employment at will doctrine. As originally formulated by оur supreme court in Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425, 428 (1973), the exception is recognized “when an employee is discharged solely for exercising a statutorily conferred right.” In Frampton, an employеe at will was subjected to a retaliatory discharge for filing a workman‘s compensation claim pursuant to the Workman‘s Compensation statutes. In addition, the discharge was found to violate a statutory proscription against an employer‘s use of any device to relieve the employer of liability for workman‘s compensation. The court held a termination of employment based upon the employee‘s exercise of the statutory right to file a claim pursuant to the Workmen‘s Compensation Act or the Workmen‘s Occupational Diseases Act states a claim upon which relief can be granted.
Although the court in Frampton spоke in terms of public policy, it did so in the sense of enforcing a specific statutory prohibition against the use of any “device” to relieve an emplоyer of its obligation under the Workmen‘s Compensation Act. An attempt to declare any discharge unlawful where the reason for the discharge is contrary tо general public policy was specifically rejected in Martin v. Platt, 179 Ind. App. 688, 386 N.E.2d 1026 (1979) (employee reported kickbacks to superiors) and in Campbell v. Eli Lilly & Co., 413 N.E.2d 1054 (Ind.App.1980) (employee reported misconduct of superiors and allegedly unsafe drugs). Such a broad exception was left for legislative expression of what constitutes public policy or which of competing public policies should be given precedence. Martin, 386 N.E.2d at 1028.
Therefore, a cause of action under the Frampton rule must allege the discharge of an employee at will was in retaliation either for fulfilling a statutorily imposed duty or exercising a statutorily сonferred personal right. Campbell, 413 N.E.2d at 1061. In the instant case, Rice was discharged after having driven a county highway department truck outside the county limits and down an unpaved road, where the truck became stuck in the mud and was subsequently towed at county expense. Although Rice alleges his conduct was reasonable under the Indianа general traffic statutes because the main road was partially blocked by another automobile at his usual turn around point, the general traffic laws do not confer a right or duty upon Rice to proceed outside the county line, to drive his truck in the mud, or to incur county expense for towing. Grant County‘s discharge fоr Rice did not amount to a retaliatory discharge for the exercise of a personal statutory right.
Judgment affirmed.
BUCHANAN, C.J., concurs.
SULLIVAN, J., concurs in result.
Benedict F. Marnocha, South Bend, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Jay Rodia, Deputy Atty. Gen., Indianaрolis, for appellee.
Eileen R. Snell was convicted by the court of theft, a Class D felony under
The record in this case reveals that in early November 1981, Snell entered a Radio Shack store and purchased a weather alert radio and small power supply adapter. According to the store manager, Troy Harrison, Snell told him she taught classes at Purdue North Centrаl (Purdue) and that the college would be paying for the radio equipment, which she intended to use for instructional purposes.
On the strength of this representation, Hаrrison allowed Snell to charge the items. He made out an invoice denoting the purchaser as “Mrs. E. Snell, P.N.C.” and stat
Harrison then contacted the police. A police officer telephoned Snell, who immediately returned to the store and paid for the radio equipment. Harrison stated that he never attempted to bill the defendant for these purchases.
In reviewing the sufficiency of this evidence, we must consider only the evidence favorable to the judgment, together with reasonable inferences which may be drawn therefrom. Wе may neither reweigh the evidence nor assess the credibility of witnesses. If substantial evidence of probative value establishes each element of the offense beyond a reasonable doubt, we must affirm. Wilson v. State (1983), Ind., 455 N.E.2d 1120; Gatewood v. State (1982), Ind., 430 N.E.2d 781.
The elements of theft are defined by
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.
In this case, we conclude that the evidence еstablishes only that Snell knowingly or intentionally exercised unauthorized control over the property. It is insufficient to prove beyond a reasonable doubt that she did so with the intent to deprive the store of the use or value of that property.
The evidence favorable to the state does indicate that Snell purposefully created a false impression that she worked for Purdue and that the college would be responsible for the bill. Unauthorized control of рroperty is defined by
Obtaining a credit purchase on false pretenses constitutes a wrongful taking; it is not, however, tantamount to theft. The state must further prove that the defendant intended to deprive the owner of the property‘s use or value.
Because intent is a mental state not often susceptible of direct proof, it is commonly established by circumstantial evidence. In determining the actor‘s intent, the trier of fact must resort to reasonable inferences based upon examination of the surrounding сircumstances. Shields v. State (1983), Ind. App., 456 N.E.2d 1033.
The circumstantial evidence in this case does not justify an inference that Snell intended to deprive the owner of the property. Rather, the uncontroverted evidence reveals that the defendant provided her correct name and address, which appear on the invoice in а manner indicating that she is held responsible as the direct purchaser. Snell could not reasonably have believed that Purdue would pay this bill, and she must have antiсipated that Radio Shack would demand from her the payment which was not forthcoming from the college. The defendant never received a bill for the radio equipment, but when contacted by the police, she immediately proceeded to the store to remit the purchase price. These faсts tend to negate the element of intent, and the record contains no other evidence sufficient to support a reasonable inference tо the contrary.
Accordingly, the judgment is reversed.1
MILLER, P.J. dissents with separate opinion.
MILLER, Presiding Judge, dissenting.
I respectfully dissent.
In my opinion, Snell‘s deliberate misrepresentations (including obtaining the property without a sales tax charge by claiming Purdue University‘s tax-exempt status) was sufficient to have permitted the trier-of-fact to infer Snell had the intent at the time of the purchase to evade payment.