APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION, ROOM 5, The Honorable Roy F. Jones, Judge, No. CR85-105E.
Dickson, J.; Shepard, C.j. and DeBRULER, J., concur; Givan, J., I Dissent as to Issue 3; concur as to the other issues. Pivarnik, J., I Dissent on Issue 3 as I think there were two larcenies; concur as to all other issues.
The jury trial of defendant Charles Raines resulted in acquittals as to four counts of murder, convictions on three counts of theft, and a finding of habitual offender status. In this direct appeal, defendant presents three issues: 1) sufficiency of evidence for conviction of theft as charged in count VII, 2) sufficiency of evidence to support the habitual offender determinations, and 3) whether convictions of counts V and VI violate the "single larceny rule."
Issue 1 -- Sufficiency of Theft Evidence Under Count VII
Count VII charged the defendant with theft of an Oldsmobile automobile from Kentucky Farm Bureau Insurance Company (KFBIC). Defendant contends that the evidence is insufficient not only as to his intent to deprive KFBIC of its value or use of the automobile, but also insufficient to prove that his possession was unauthorized.
In addressing the issue of sufficiency of evidence, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing Witness credibility, a reasonable trier of fact could find each element of the charged crime proven beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
The evidence favorable to the judgment demonstrated that defendant was stopped by police while operating a 1976 Oldsmobile automobile which had previously been stolen in Kentucky. Following the theft, KFBIC acquired title in the course of its claim settlement with its insured, the prior owner of the automobile.
Defendant argues that the certificate of title demonstrates that KFBIC acquired its interest in the automobile on August 28, 1984, three days after defendant's possession ceased. He concludes that this sequence of events precludes the possibility of sufficient evidence that he intended to deprive KFBIC, or that his use of the vehicle was unauthorized by KFBIC.
Defendant acknowledges the well established rule that it is not necessary to prove absolute title or ownership in the alleged owner, but sufficient if the evidence shows the alleged owner to be properly in possession as a bailee, agent, trustee, executor, or administrator. Gunder v. State (1968), 250 Ind. 689, 693, 238 N.E.2d 655. The State does not have to prove ownership "in the title sense" to establish a theft conviction. Bridges v. State (1983), Ind., 457 N.E.2d 207, 209.
Accordingly, we find that KFBIC's payment under its automobile theft coverage entitled it to sufficient proprietary interest in the vehicle to satisfy the proof of ownership requirement. At the time of the defendant's possession of the automobile, KFBIC had already settled with its insured and acquired its proprietary interest, even though the processing of the formal transfer of ownership and issuance of certificate of title had not been completed. Upon this issue, we must reject defendant's claim of insufficient evidence.
Issue 2 -- Sufficiency of Habitual Offender Evidence
Defendant contends that the evidence presented during the habitual offender phase of the trial was insufficient, particularly in view of the alleged failure of the trial court to properly instruct the jury as to the meaning of the phrase "two prior unrelated felony convictions." Defendant's claim of insufficient evidence is based upon his claim that the alleged prior convictions were not shown by any "properly certified records from the trial courts from which these prior convictions purported arose." The State responds, first, that because the defendant took the stand and admitted the prior convictions, sufficient evidence was thereby established. The State further correctly alleges that certified copies of prison records including commitment orders may be used to establish a defendant's prior felony convictions. Smith v. State (1985), Ind., 477 N.E.2d 857; Harmer v. State (1983), Ind., 455 N.E.2d 1139; Underhill v. State (1981), Ind., 428 N.E.2d 759.
The State introduced certified copies from the Ohio Department of Corrections containing a copy of a fingerprint card and copy of an entry and information from the Court of Common Pleas for Ross County, Ohio, showing a charge, a finding of guilt, and a sentencing for robbery in 1975, the sentence to be not less that four (4) years and not more than fifteen (15) years. A similar set of certified documents from the Chillicothe Correctional Institute included a fingerprint card, a copy of an entry and information from the Court of Common Pleas for Franklin County, Ohio, showing a charge, finding of guilt and sentencing for receiving stolen property in 1979, for a sentence of one (1) to five (5) years. Each of these documents identified defendant. A fingerprint expert for the State of Indiana testified that the fingerprints on the cards contained in these documents matched the defendant's fingerprints. Further, defendant testified and admitted he had a prior Ohio conviction for Robbery in 1975 for which he served 2 ...