APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION, ROOM NO. 3, The Honorable John R. Barney, Jr., Cause No. CR-85-196C
DeBRULER, J., Shepard, C.j., Dickson, J., concur. Givan, J., Dissents with separate opinion in which Pivarnik, J. concurs.
This is a direct appeal, following a trial by jury, of seven theft convictions and seven forgery convictions. Appellant was sentenced to two years for each theft conviction, to run consecutively, and to five years for each forgery conviction, to run consecutive to each other and concurrent with the theft convictions.
It must first be noted that this appeal does not meet the prerequisite jurisdictional requirements of Ind.R.App.Proc., Rule 4(a)(7). No single sentence in this case carries a minimum sentence greater than ten years. Menefee v. State (1981), 275 Ind. 390, 417 N.E.2d 302. Since the case was inadvertently filed in this court, without objection by the State, we exercise our inherent judicial authority to retain jurisdiction of this case and thereby render a decision on the merits. Neice v. State (1981), Ind., 421 N.E.2d 1109.
There are six issues presented for review: (1) whether the trial court erred in admitting State's exhibit 18; (2) whether the trial court erred in admitting State's exhibit 26; (3) whether there was sufficient evidence presented to support the convictions; (4) whether the trial court erred by sentencing appellant for seven separate thefts and seven separate forgeries; (5) whether the total sentence imposed constitutes cruel and unusual punishment; and (6) whether the trial court erred by failing to discharge appellant when more than seventy days elapsed from the date of the speedy trial request.
These are the facts from the record which tend to support the determination of guilt: Appellant worked for a janitorial service. He was assigned to clean in the Marion County Clerk's office during the hours the office was closed. He worked in the clerk's office on July 24, 1985, the night before seven checks were discovered missing from the office. Those checks, drawn on Merchant's National Bank and made to local attorneys, were deposited into the account of Dr. Jamie Wiseman at Union Federal Bank on July 25, 1985. The bank teller who performed the transaction identified appellant as the individual who made the deposit. She testified he identified himself as Dr. Jamie Wiseman, produced an identification card indicating such, and explained that he worked in a psychiatric hospital and that he was depositing these checks on behalf of his patients. The endorsements on the checks were forgeries. A handwriting expert testified that the forged endorsements were in appellant's handwriting. Prior to discovery of the stolen nature of the checks deposited, Union Federal Bank cashed seven personal checks drawn on the account of Dr. Jamie Wiseman and made out to Dr. Jamie Wiseman. The checks were negotiated between July 27 and July 30, in various amounts and at various bank branches. The handwriting appearing on those checks was determined to be that of appellant. One of the bank tellers identified appellant as the individual who had negotiated a personal check drawn on the account and made payable to Dr. Jamie Wiseman.
State's exhibit 18 is appellant's time card from the janitorial service where he worked. Across the top of the card there are blank lines designated in print for "name" and "pay ending". On the one appellant's name is written and on the other a date "7-26-85" is written. Beneath this upper area containing general information there are five vertical columns showing the hours worked on the five days of the month, from the 21st to the 25th. In each column the times clocked in and clocked out are recorded. The "26" in the date on the pay-ending line is obviously written on top of typewriter correction fluid. Appellant contends that the failure of the prosecution to supply testimony concerning the facts surrounding this alteration rendered the exhibit inadmissible under the business records exception to the hearsay rule.
The business records exception to the hearsay rule has four requirements:
(1) The records offered must have been the original entries or a duplicate copy of same.
(2) The records must have been made in the regular course of business at or near the time of the event recorded.
(3) The facts must have been within the first hand knowledge of someone whose business duty it was to observe and report the facts.
(4) The witness who had knowledge of the facts must be unavailable, or unable to recall the facts so ...