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04/06/88 J. W. GANN AND LARRY GANN v. STATE INDIANA

Filed: April 6, 1988.

J. W. GANN AND LARRY GANN, APPELLANTS,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM RIPLEY CIRCUIT COURT, The Honorable Denver Gay, Judge, Cause No. S-84-15

Givan, J., Shepard, C.j., DeBruler, Pivarnik and Dickson, JJ., concur.

Author: Givan

GIVAN, J.

A jury trial resulted in the conviction of appellants of Conspiracy to Commit Burglary, a Class C felony, for which they received eight (8) years, enhanced by thirty (30) years by reason of their status as habitual criminals, and Conspiracy to Commit Theft, a Class D felony, for which they received four (4) years, the sentences to run concurrently.

The facts are: At trial, Kenneth Chandler testified that he and appellants drove from Indianapolis to the Osgood Service Center in Osgood, Indiana, to look the place over, then they returned to Indianapolis. The next night they returned to the service center and as Chandler stood outside with a radio in hand as the lookout, appellants broke into the store by using channel locks to unscrew the lock on the door. Appellants rolled twenty-four truck tires out of the back door and loaded them into a service truck they found in the building. They drove the truck to a nearby cornfield and hid the tires among the cornstalks. They abandoned the truck and drove back to Indianapolis. They rented a U-Haul truck, drove to Osgood and loaded the truck with the tires. As they started driving out of the field, the steering broke, causing the U-Haul to run into a fence. They borrowed a friend's pickup truck and moved the tires to another cornfield. They beat the ignition off of the U-Haul and reported it stolen.

Police found the U-Haul truck and the rental agreement inside it which led them to appellants and Chandler. Footprints in the back of the U-Haul matched those found at the service center. Also, police found the tires hidden in the cornfield.

While police were looking for the stolen tires they saw a car which matched the description of a car seen at the time of the break-in near that location. The car was registered to Brenda Gann and the driver was identified as J. W. Gann. In the car police found channel locks, wire cutters and a flashlight.

Appellants first argue that their conviction should be reversed because the trial court erred in not holding a hearing or ruling upon the competency of Kenneth Chandler as a witness. Appellants filed one motion which simply objected to the competency of Chandler and another motion which requested that Chandler be examined by a psychiatrist to determine his competency as a witness. They supplied the court with no affidavits or reasons supporting these motions.

The record contains no ruling or order on appellants' motions nor was a hearing conducted on Chandler's competency to testify. At trial Chandler testified without objection. Chandler's testimony reported in detail the events of the break-in and inculpated both appellants.

When no ruling is made on a motion by the trial court, it cannot be assumed that the motion was denied. By proceeding to trial without objecting to the court's failure to hold a hearing on the motion objecting to Chandler's competency or to enter a ruling, appellants have waived any alleged error. Budd v. State (1986), Ind., 499 N.E.2d 1116; Minton v. State (1978), 269 Ind. 39, 378 N.E.2d 639.

Appellants assert that should the above issue be deemed waived, their convictions should be reversed due to ineffective assistance of counsel.

A strong presumption exists that counsel rendered adequate legal assistance. Lawrence v. State (1984), Ind., 464 N.E.2d 1291. To overcome that strong presumption, appellants must 1) identify the acts or omissions of counsel which are alleged not to have been the result of reasonable professional judgment and 2) show that their defense was prejudiced as a result of their attorney's unreasonable acts. Appellants must establish that, but for the unprofessional error, the result of their case would have been different. Id.; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

In response to the prosecutor's questions during direct examination, Chandler stated that he did have a mental disability which qualified him for the receipt of social security benefits. His testimony, however, showed that he knew he had been charged in this case and was not a defendant because he was given immunity of all charges if he agreed to testify. He recited the facts surrounding the break-in lucidly and in detail and said he was telling the truth because it was the right thing to do. Nothing in the record reflects that Chandler was unable to comprehend the questions posed to him or the nature of his oath.

We find that, had appellants' counsel objected to Chandler's competency at trial, the trial court would not have erred in overruling the objection and finding Chandler competent to testify. Therefore, appellants have not shown that, but for their counsel's error, the result ...


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