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08/21/87 ROY H. TAYLOR v. STATE INDIANA

Filed: August 21, 1987.

ROY H. TAYLOR, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE TIPPECANOE COUNTY COURT, The Honorable Kenneth L. Thayer, Cause No. TC-MT-305-83.

Shepard, C.j., DeBRULER, Givan, Pivarnik and Dickson, JJ., Concur.

Author: Shepard

SHEPARD, C.J.

The principal issue in this case is whether the Indiana Constitution, art. 1, § 16 proscribes a thirty-two-year sentence for the theft of fifty dollars worth of merchandise when the conviction is the defendant's fifth nonviolent felony.

We consolidate the other issues Taylor raises on direct appeal to these four:

2) Whether the Indiana Constitution requires that the jury be informed of the penalty for a habitual offender finding and mandates the jury hear defendant's testimony that he never did anything violent;

3) Whether the trial court erred when it declined to order the prosecutor to provide information Taylor desired to use in challenging the propriety of the habitual offender charge on Eight Amendment grounds and refused to grant a continuance to conduct such discovery;

4) Whether the trial court erred when it sentenced appellant as a felon and commenced the habitual offender phase prior to that determination, and

5) Whether the trial court properly admitted documents of appellant's prior convictions, a photograph of the stolen items, and a diagram of the store.

Appellant Roy H. Taylor appeals his conviction for theft, a class D felony, Ind. Code § 35-43-4-2(a) (Burns 1985 Repl.), and the determination that he is a habitual offender, Ind. Code § 35-50-2-8 (Burns 1985 Repl.). The trial court imposed a two-year term for the theft and enhanced that sentence by thirty years for the recidivist finding.

At trial the evidence showed that on January 7, 1983, Taylor entered a K-Mart store near the Tippecanoe Mall in Lafayette. He picked up six packages of A.C. spark plugs and put them inside his shirt and jacket. He then left the store without paying. Security manager Patrick Patton stopped Taylor and his brother in the parking lot and escorted the men back to the store's security office. Patton found the six packages of spark plugs with K-Mart price tags inside Taylor's shirt.

Taylor's defense consisted of testimony that he had been drinking alcohol and smoking marijuana on the day of the theft. He had difficulty remembering what happened inside the store, and he presented evidence tending to establish that he acquiesced in his brother's shoplifting plan. Patton and his assistant testified that Taylor did not appear to be under the influence of alcohol or drugs.

After the jury found Taylor guilty of theft, it determined he was a habitual criminal. The jury specifically found he had been convicted of larceny in 1969, 1973 and ...


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