ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER JEFFREY A. MODISETT
Public Defender of Indiana Attorney General of Indiana
LORRAINE L. RODTS JANET BROWN MALLETT
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
MICHAEL A. SANGSLAND, ) ) Appellant-Defendant, ) ) vs. ) No. 92A04-9803-CR-174 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
defense. In its answer to the notice of alibi, the State alleged that charged offenses occurred
between February 9 and 11.
A trial by jury commenced on February 3, 1998. A.L., a juvenile, testified that he and Sangsland had stolen the guns and ammunition from the Coffelt residence. Although A.L. could not remember the exact date of the burglary, he indicated that it took place sometime in February prior to Valentine's Day. Jarrod Adams, an acquaintance of Sangsland, testified that Sangsland approached him about selling the guns on February 13 or 14. Adams further testified that Sangsland told him that he and A.L. had taken the guns from a farmhouse. A.L.'s girlfriend testified that Sangsland admitted that he and A.L. had stolen guns from a house "on 13 Curves."See footnote 1
Joseph Harter and Ryan Robbins each testified that they had purchased a gun from Sangsland which was identified at trial as belonging to Coffelt. Finally, the State introduced into evidence a letter written by Sangsland to A.L.'s girlfriend, wherein Sangsland complained that A.L. had "nar[k]ed" and requested that the girlfriend convince A.L. not to testify against him. (R. 365). Sangsland also requested that the girlfriend tell A.L. to tell the authorities that someone named Josh had committed the burglary, and that he had "nar[k]ed" on Sangsland because he was scared of Josh.
The defense proceeded along two theories. First, Sangsland's counsel attempted to show the alleged burglary occurred on or before February 5, 1997, prior to the period alleged in the State's answer to the notice of alibi. In support of this theory, Sangsland presented
testimony from Candy Adair and Sangsland's mother, who each testified that they had
learned through conversations with the Coffelts on February 5, 1997, that Mr. Coffelt's guns
had been taken in a burglary.
Second, Sangsland advanced an alibi defense. Sangsland introduced the testimony of his parents in an attempt to show that he was incapable of committing the crimes alleged because he was on home detention in his parent's mobile home from January 13 through February 12, 1997. Sangsland's mother testified that during this time period, Sangsland was never outside the home without her knowledge, that she knew where he was "24 hours a day," and that he only went outside briefly to smoke cigarettes. (R. 533, 551). She indicated that Sangsland could not have exited the home without her knowledge because he did not have a key to the deadbolt lock on one door, and that the other door had a bar securing it which could not be moved without making noise. (R.531). She also stated that Sangsland could not exit the home through any windows because plastic had been placed over them. Sangsland's father also testified that during the months of January and February 1997, Sangsland was at home during the hours when he was not at work.
The jury found Sangsland guilty of burglary and theft.
Sangsland argues that while the State's evidence is adequate to support a conclusion that the
elements of burglary and theft have been established, there is nevertheless insufficient
evidence to permit a rational trier of fact to infer that he committed those crimes between
February 9 and 11 as alleged in the State's answer to his notice of alibi.See footnote
that once he "premised his defense upon the existence of an alibi and proof that the alleged
crime could not have occurred upon the date charged, proof of the date of the burglary
became a fact essential to conviction," which the State was obligated to prove beyond a
reasonable doubt. Appellant's Brief, p. 12.
As Sangsland correctly notes, it is fundamental that the State has the burden of proving beyond a reasonable doubt each essential element of the crime charged. Time, however, is not an essential element of the crime of burglary or theft. See Ind. Code § 35-43- 2-1; Ind. Code § 35-43-4-2; Hammond v. State, 240 Ind. 313, 164 N.E.2d 640 (1960). The law is well settled that where time is not an element or "of the essence of the offense," the State need not prove the precise date alleged in the indictment or information but may prove that the crime occurred at any time within the statutory period of limitations. Quillen v. State, 271 Ind. 251, 391 N.E.2d 817, 818-19 (1979); Cf. Herman v. State, 247 Ind. 7, 210 N.E.2d 249, 256 (1965) ("where time is not of the essence of the offense, under an allegation of a specific date, the offense may ordinarily be proved as having occurred at any date preceding the filing of the affidavit or indictment which is within the statute of limitations.").
contentions, our supreme court stated that "[w]here the State at trial restricts its proof to the
time frame within the information or within its answer to the notice of alibi, it has met its
obligation under Ind. Code § 35-36-4-2," the Alibi Statute. Id. at 676-77. After concluding
that the State had discharged its duty under the statute, the court stated that "[t]he time of
commission was not an element of the offense." Id.
In light of the language in Quillen and Stewart, we conclude that the mere fact that a defendant raises an alibi defense does not necessarily make time an essential element of an offense.See footnote 3 However, where the State's answer to the notice of alibi and evidence points exclusively to a specific date, and the defendant presents a defense based on that date, the jury's consideration of the defendant's guilt should be restricted to that date. See Jennings, 514 N.E.2d at 837 (reversible error to instruct that State's proof need not establish particular date of charged offenses when alibi defense was asserted; instructions circumvented and nullified defendant's opportunity to assert his alibi defense).
Here, the State, in its answer to Sangsland's notice of alibi, asserted that the offenses occurred sometime between February 9 and 11, 1997. The State's evidence at trial was consistent with that answer although there was evidence that suggested that the crimes could have occurred as early as February 1. A.L. testified that he and Sangsland burglarized the
Coffelt residence in February 1997, sometime before Valentine's Day. Mr. Coffelt testified
that he called the sheriff on the same day he discovered that his guns were missing, and
Deputy Vogely testified that he responded to the call on February 11. Thus, the State's
evidence clearly established that the offenses occurred between February 1 and 11.
Sangsland presented an alibi defense and witness testimony accounting for his whereabout
during this time frame. In fact, Sangsland presented an alibi defense for the period between
January 13 and February 12. Sangsland's mother and father each testified that during this
time period he was at their home on home detention. Accordingly, any variance in the time
frame alleged and the State's proof at trial did not circumvent or nullify Sangsland's
opportunity to assert his alibi defense to the jury.See footnote
Under these circumstances, we cannot say
that time was "of the essence" or critical to the defense.
As set forth in FACTS, the State presented overwhelming evidence placing Sangsland at the scene of the crime and demonstrating that he had in fact committed the burglary and theft. The State needed to prove no more. See Harris v. State, 617 N.E.2d 912 (Ind. 1993) (once an alibi defense is invoked, the State "has the burden of proving that the defendant in fact was at the scene of the crime and committed the offense."), overruled in part on other grounds, Wright v. State, 690 N.E.2d 1098, 1109 (Ind. 1997).
II. Untimely Disclosure of Witness and Evidence
Before the presentation of evidence, the State made a motion in limine seeking to
exclude evidence of any other burglary at the Coffelt residence.See footnote
Sangsland's counsel did
oppose the motion. However, as his second witness, Sangsland called his mother who
testified that on February 5, 1997, Mrs. Coffelt told her that the Coffelt home had been
burglarized and their guns and ammunition stolen. Sangsland presented this testimony to
demonstrate that the burglary and theft occurred prior to February 9th date alleged in the
charging information. At a recess following Mrs. Sangsland's testimony, the State sought
permission to call Officer Frederick Dellinger as a rebuttal witness to demonstrate that the
Coffelts were in fact burglarized on February 4, in an entirely separate incident. Sangsland's
counsel objected to Officer Dellinger's testimony on the grounds that the State had failed to
timely disclose him as a witness. After the conclusion of Sangsland's presentation of
evidence, the trial court permitted Officer Dellinger to testify for the limited purpose of
establishing the fact "that there was another burglary and that could have created some
confusion between the parties." (R. 556).
On appeal, Sangsland claims that the trial court deprived him of fundamental due process of law by permitting the State to rebut evidence that the burglary occurred on a date other than alleged in the charging information because the State failed to disclose Officer Dellinger as its rebuttal witness. We disagree.
Absent clear error and resulting prejudice, the trial court's determinations as to discovery violations and sanctions should not be overturned. Cliver v. State, 666 N.E.2d 59,
64 (Ind. 1996) (citation omitted). Here, assuming that Sangsland could demonstrate that the
State failed to comply with discovery, we are still unpersuaded that he suffered any harm as
a result of the trial court's refusal to exclude Officer Dellinger's testimony. First, the
evidence supporting Sangsland's convictions was overwhelming. Second, as noted above,
proof of the precise dates alleged in the State's answer to the notice of alibi was not necessary
to sustain his convictions. Thus, even assuming that the State had been prevented from
rebutting defense evidence suggesting that the crimes occurred on or before February 5, his
convictions would still stand. We therefore find no abuse of discretion in refusing to
preclude the State's rebuttal witness.
III. Brady Violation
After Sangsland presented the testimony from his mother to demonstrate that the burglary and theft of the guns occurred on or before February 5, 1997, the State disclosed a prior sworn statement made by Mr. Coffelt. In the sworn statement, Mr. Coffelt indicated that sometime between February 3 and 4, 1997, his rental property was vandalized and tools were taken from his garage, and that a "couple of days later" his residence was burglarized. (R. 590-91). On appeal, Sangsland contends that the State's delayed disclosure of this sworn statement precluded him from effectively using it to make strategic trial decisions crucial to his defense in violation of his right against self-incrimination, his right to assistance of counsel and compulsory process, and his right to a fair trial. Specifically, he argues that the State's delayed disclosure violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny.
exculpatory evidence, the defendant must show a reasonable probability that an earlier
disclosure would have changed the trial results."), cert. denied 516 U.S. 1184, 116 S.Ct. 1288
(1996); United States v. Kelly, 14 F.3d 1169, 1176 (7th Cir. 1994).
Our examination of the record convinces us that there is no reasonable probability that the result of the trial would have been different had the evidence been disclosed to the defense earlier. First, Sangsland's counsel effectively used the sworn statement during the rebuttal testimony of Officer Dellinger and featured the statement in his closing argument. Second, earlier disclosure of the sworn statement would have not been especially damaging to Mr. Coffelt's credibility in light of the fact that at trial he candidly acknowledged on direct examination that he did not know when the burglary occurred and could not recall when he discovered that his guns were missing. Sangsland's counsel apparently recognized that the impeachment value of the sworn statement was negligible as counsel declined the opportunity to recall Coffelt to the stand to impeach or clarify his prior testimony. Finally, although Sangsland argues he would have strenuously objected to the State's efforts to secure his convictions through Deputy Vogely's testimony had he had the sworn statement during the State's case-in-chief, he fails to point to specific objections he might have lodged (but forewent) as a result of the State's alleged late disclosure. We see no basis for concluding that Sangsland was prejudiced or that the outcome could have been different if the statement had been disclosed earlier.
SHARPNACK, C.J., concurs.
COURT OF APPEALS OF INDIANA
MICHAEL A. SANGSLAND, )
vs. ) No. 92A04-9803-CR-174
STATE OF INDIANA, )
ROBB, Judge, concurring in result with separate opinion.
I concur in result.
While I agree that generally, time is not of the essence in proving a criminal offense, it "becomes of the essence after the invocation of the alibi statute." Quillen v. State, 391 N.E.2d 817, 819, 271 Ind. 251 (1979); see also Baggett v. State, 514 N.E.2d 1244 (Ind. 1987); Evans v. State, 68 N.E.2d 546, 224 Ind. 428 (1946).
As the majority indicates, the State's answer alleged that the offenses occurred between February 9 and 11. "[T]he filing of an alibi defense does make the time of the alleged offense of the essence, . . . [and] the effect of the State's answer to the notice of alibi is to restrict the State to proof of the date in the answer." Jennings v. State, 514 N.E.2d 836, 837 (Ind. 1987) (citations omitted). Thus, the State had the burden to prove that the offenses occurred on or between the dates specified.
"Where the State at trial restricts its proof to the time frame within the information or within its
answer to the notice of alibi, it has met its obligation under Ind. Code Sec. 35-36-4-2." Stewart v.
State, 521 N.E.2d 675, 676-77 (Ind. 1988).
Here, the State did not restrict it proof to the time frame within its answer, February 9 to February 11. However, in order for the State to meet its burden, it is not a requirement that all the evidence presented indicates the offenses occurred within these dates. The question here is simply the sufficiency of the evidence: Was there sufficient evidence presented to prove that Sangsland committed the offenses between February 9 and 11? On this question, I agree with the majority that the evidence was sufficient. Therefore, while I believe that time was of the essence of the offenses, the State met its burden of proof in convicting Sangsland.
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