APPEAL FROM THE PORTER SUPERIOR COURT, CRIMINAL DIVISION, The Honorable Roger V. Bradford, Cause No. 81-PSCR-122.
Shepard, C.j., DeBRULER, Givan and Dickson, JJ., concur. Pivarnik, J., concurs in result.
Appellant Samuel D. Mills appeals his conviction for theft, a class D felony, Ind. Code § 35-43-4-2 (Burns 1985 Repl.), and finding as a habitual offender, Ind. Code § 35-50-2-8 (Burns 1985 Repl.). The trial court imposed a sentence of two years for the theft conviction enhanced by thirty years for the recidivist determination.
Mills raises four issues on direct appeal.
1) Whether the evidence of "intent to deprive" is sufficient to sustain the conviction;
2) Whether the thirty-two-year sentence for a nonviolent theft is unconstitutionally disproportionate in violation of the federal or state constitution;
3) Whether the trial court erred by not allowing a constitutional challenge to the prior felony conviction during the habitual offender phase of trial; and
4) Whether the trial court incorrectly denied a motion for discharge under Crim. Rule 4(A), Ind. Rules of Procedure.
At trial the State showed that on October 18, 1981, Mills used a valid Visa credit card to rent a car from Hertz in Portage, Indiana, to travel to Cleveland, Ohio. The credit card belonged to Jay Munitz, and Mills presented an Ohio driver's license with his picture but Munitz's name. Mills gave Munitz's correct telephone number on the rental agreement and took possession of a 1981 Monte Carlo.
A number of days later the Hertz manager discovered the car was overdue and contacted Munitz at the number provided by Mills. The manager subsequently filed a stolen vehicle report with the Portage Police Department. On December 7, 1981, Mills was charged with theft and with being a habitual criminal. The rental car was never returned.
A year and a half later, the Port Orange (Florida) Police Department informed the Portage Police Department that they had apprehended and detained Mills on the Indiana charges.
I. Sufficiency of Evidence
Mills argues the evidence is insufficient to establish he intended to deprived Hertz of the value or use of the car. The statute in question reads, "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 ...