Boarman v. State

509 N.E.2d 177, 1987 Ind. LEXIS 961
CourtIndiana Supreme Court
DecidedJune 23, 1987
Docket985S364
StatusPublished
Cited by30 cases

This text of 509 N.E.2d 177 (Boarman v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boarman v. State, 509 N.E.2d 177, 1987 Ind. LEXIS 961 (Ind. 1987).

Opinion

PIVARNIK, Justice.

Defendant-Appellant, Roger L. Boarman, was convicted by a Vanderburgh County jury of possession of cocaine, a class C felony. Thereafter, the same jury found Boarman to be a habitual criminal offender. The trial court sentenced Boarman to eight (8) years for possession, enhanced by thirty (80) years for being a habitual offender. In this direct appeal, Boarman raises the following issues for our consideration:

1. sufficiency of the evidence supporting the possession conviction;

2. error in the habitual offender verdict form;

3. error in asking Boarman preliminary question, and taking fingerprints, without giving him his Hiranda warnings;

*179 4. error in admitting testimony concerning State's Exhibit 8;

5. error in admitting expert testimony concerning a fingerprint comparison; and,

6. error in admitting into evidence documents which were not in continuous control of the county clerk.

The facts supporting the jury's determination are as follows. On July 17, 1984, Evansville police officers Clinton Coomer and Robert Dickhoff were partners on the second shift. The officers stopped Carol Shutt and issued her a citation for improper registration of her car. Ms. Shutt sat on the passenger side in the rear of the squad car. She had her purse with her, but was not searched by the officers. The back seat of the squad car was not checked after Ms. Shutt was released. At approximately 8:00 p.m., Appellant Boarman was arrested for a traffic infraction. Officer Coomer searched Boarman by "patting" him down. Coomer handcuffed Boarman and placed him on the passenger side in the rear of the squad car. Boarman, who was handcuffed with his hands behind his back, shifted up and down in the back seat of the car. He complained the handcuffs were hurting him. Boarman was then taken to the police station and booked.

At the end of their shift, Officer Diek-hoff pulled out the back seat of the squad car and found a vial and two bags containing a white powdery substance later determined to be cocaine.

At trial, both officers testified they had searched the back seat of the squad car before they began their shift. Each testified that Ms. Shutt and Boarman were the only two placed in the back seat of the car during their shift, and the car was locked at all times when unoccupied. Ms. Shutt . testified she did not plant the cocaine in the squad car. Officer Coomer testified he did not notice Ms. Shutt make any unusual or excessive movements while she was detained in the car on the night in question. Coomer was of the opinion that had Boar-man's hands been hurting him due to the handcuffs, Boarman would not have moved in an up and down fashion as that would have caused even more pain from the handcuffs. Based on this evidence, the jury concluded beyond a reasonable doubt that Boarman possessed the cocaine found in the police squad car.

I

Boarman first argues his conviction for possession is not supported by sufficient evidence. Specifically, he claims another person had access to the back seat of the squad car, and that person was neither searched nor handcuffed. Boarman, on the other hand, was searched and had his hands handcuffed behind his back. He also argues that the police picked up the contraband containers with their bare hands, thereby destroying any fingerprints which might have identified the owner. Finally, Boarman argues the State failed to prove he was in constructive possession of the cocaine.

When sufficiency of the evidence supporting a criminal conviction is challenged on appeal, we have a very narrow scope of review. We neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we look at the evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value from which the jury could have reasonably inferred guilt beyond a reasonable doubt, the conviction will be affirmed. Arthur v. State (1986), Ind., 499 N.E.2d 746, 747; McMurry v. State (1984), 467 N.E.2d 1202, 1204.

Here, Boarman is merely asking us to reweigh the evidence and judge the credibility of the witnesses which we will not do. The jury was presented with the facts set out in the beginning of this opinion. They determined that between the two persons who had access to the back seat of the squad car, Boarman was the one who dropped the cocaine there. Their determination is supported by the evidence. The car was searched prior to either person being placed in the car. Ms. Shutt testified she did not place the cocaine there, and the jury credited her testimony. There also was evidence Ms. Shutt did not act suspi- *180 clously while in the car. Boarman, however, moved up and down in a suspicious fashion while in the car. The reasonable inference to be drawn from this is that Boarman placed the cocaine in the car in an attempt to avoid its being discovered on his person at the police station.

Boarman's claim that the police destroyed fingerprints on the contraband containers is based on mere speculation. There was no evidence the containers had fingerprints on them when discovered. Fi nally, constructive possession was not an issue in this case. The circumstances of this case, and the evidence presented at trial, support the jury's finding that Boar-man was in actual possession of the cocaine at the time he was arrested. We find sufficient evidence to support the convietion.

II

In the habitual offender portion of Boarman's trial, the State introduced evidence that he had three prior unrelated felony convictions. Boarman concedes the State may plead and prove more than the statutorily required two prior felonies as such is merely surplusage. See Dudley v. State (1985), Ind., 480 N.E.2d 881, 901; Minneman v. State (1983), Ind., 441 N.E.2d 673, cert. denied 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307. Boarman contends however, that such surplusage is permissible only if a special verdiet form is used which indicates which two felonies the jury relied on. For authority Boarman cites Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339; and Hudson v. State (1983), Ind., 443 N.E.2d 834.

In Miller, the defendant was alleged to have committed four prior unrelated felonies. We found the defendant was improperly charged with two of the felonies because he had not yet been convicted of them at the time the principal offense was committed. Miller, 275 Ind. at 460, 417 N.E.2d at 342. We then questioned the prosecutorial wisdom of charging surplus felonies without utilizing a special verdict form. Id. Our concern is that if one of the prior felonies is set aside, a general verdict would not tell us which two felonies the jury relied on in making their habitual offender determination. However, we in no way implied it is impermissible to use a general verdict when surplus felonies are alleged.

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Bluebook (online)
509 N.E.2d 177, 1987 Ind. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boarman-v-state-ind-1987.