J.B., Appellant (Defendant Below), v. STATE OF INDIANA (1990)

MEMORANDUM DECISION

J.B. (J.B.) appeals his conviction of receiving stolen property, a class D felony.

We affirm.

J.B. was charged with one count of burglary, a class B felony and one count of theft, a class D felony. After a bench trial, the court found J.B. not guilty on the burglary count, but guilty of receiving stolen property.

The facts favorable to the judgment reveal that on January 28, 1988, Mary Lewis and her fiance discovered that their apartment had been forceably entered and a stereo belonging to Mary Lewis was missing. The maintenance man at the complex, Tyrone Evans, testified that on the day of the burglary he saw a man carrying suitcases leaving the apartment building in which Mary Lewis's apartment is located. Tyrone Evans later identified J.B. as the man he saw.

After the burglary, Mary Lewis told her neighbor, Chris Tyson, to look for a Fisher stereo system. She informed him that the tuner was broken and only registered 1888 when the power was turned on. Chris Tyson testified that, at the beginning of February, 1988, he was approached by a man who identified himself aa “Jewel” and offered to sell a stereo system to him for $100. Chris Tyson took the stereo into his apartment and plugged it in. The tuner displayed the particular numbers that Mary Lewis had indicated. Be then purchased the stereo and returned it to Mary Lewis. Chris Tyson subsequently identified J.B. aa the man who sold him the stereo.

J.B. presents six issues for our review, which we restate as follows:

(1) Whether the court erred in admitting State's Exhibit 2, a picture of a stereo;

(2) Whether the court erred in overru1ing J.B.‘s motion to strike ^ portion of the testimony of Tyrone Evans;

(3) Whether the court erred in denying J.B.‘s oral motion to suppress State's Exhibits 3, 4, 5, 6 and 7, consisting of the photographic array of suspects in this case;

(4) Whether the court erred in overruling J.B.’s objection to testimony which was allegedly cumulative and repetitive;

(5) Whether there was sufficient evidence to support the judgment and whether the judgment was contrary to law;

(6) Whether the court erred in sentencing J.B. without a finding of mitigating circumstances.

I.

J.B. argues that the court erred in admitting State's Exhibit 2, a picture of a stereo which was allegedly the one stolen by J.B. J.B. maintains that the foundation for the admission of the photograph was inadequate.

The admission of photographic evidence at trial is within the discretion of the trial court, and the court's ruling will not be disturbed on appeal absent an abuse of discretion. Perigo v. State (1989) Ind., 541 N.E.2d 936; Games v. State (1989) Ind., 535 N.E.2d 530, cert. denied 110 S.Ct. 205. To be admissible, a photograph must be a true and accurate representation of the object it is intended to portray. Underwood v. State (1989) Ind., 535 N.E.2d 507, cert. denied 110 S.ct. 257.

In the present case, the State offered Exhibits l and 2, both pictures of a stereo system, into evidence during the direct examination of Mary Lewis. Mary Lewis unequivocally testified that State's Exhibit 1 was a true and accurate representation of her stereo system. With respect to State's Exhibit 2, Mary Lewis gave the following testimony:

“Q. At this ti.me I'll show you what has been marked for identification purposes only as State's Exhibits one (1) and Two (2). Can you tell me what these are photographs of?

A. That is my stereo system. This is looks like -- I can't see it very well. It looks like the pieces may be there.

MR. SMITH: Judge, could we have the witness identify what exhibit it is that she is looking at:

* * *

MR. RUDISILL: She's looking at Number Two (2) now.

A. This is my stereo system.

THE COURT: State's Number Two (2) is?

WITNESS: It's my stereo system.” Record at 108-110.

Mary Lewis later stated that Exhibit 2 was not a good picture. However, this equivocation goes to the weight to be given the evidence and not its admissibility. See Russell v. State (1988) Ind., 519 N.E.2d 549. Therefore, the court did not abuse its discretion in admitting the photograph.

Moreover, even if the photograph should properly have been excluded, the error in its admission is harmless. State's Exhibit l was introduced without objection as a true and accurate representation of the victim's stereo. The improper admission of evidence which is merely cumulative is not prejudicial and does not merit reversal. State v. Ingram, (1981) Ind., 427 N.E.2d 444; State v. Edgman (1983) 4th Dist. Ind.App., 447 N.E.2d 1091.

II.

J.B. argues the court erred in overruling his motion to strike a portion of the testimony of witness, Tyrone Evans. Evans testified that, on the day of the burglary, he saw two men exitinq the building in which Mary Lewis's apartment is located. One of the men, who Evans identified as J.B., was carrying suitcase in an unusual manner. Evans then gave the following testimony:

“Q. Had you seen either one of these men before?

A. Yeah. The one I kept seeing carrying the suitcases. Because one time he had knocked on my--well, no he didn't know. He was trying to get in my door because in the middle of our buildings looks just like the end of our buildings so I figured he was trying to get in there thinking that there were apartments inside of there. And I told him that he had to go down to the middle to get to the apartments.” Record at 134.

Defense counsel moved to strike this testimony on the grounds that it was irrelevant and constituted hearsay. The court overruled the motion to strike. J.B. argues the court's ruling was in error.

Evans’ testimony, however, was not hearsay.

“Hearsay is testimony or written evidence of a statement made out of court, such statement being offered to show the truth of the matters asserted therein, thus resting for its value on the out of court declarant's truth and veracity.” Manyfield v. State (1987) Ind., 509 N.E.2d 810, 812.

Evans’ testimony did not contain any statements made by an out-of-court declarant. Evans merely described a previous encounter with the man he saw carrying suitcases on the day of the burglary. Such testimony does not constitute hearsay.

J.B. also argues that the testimony should have been excluded on the basis that it was irrelevant. Evidence is relevant if it logically tends to prove or disprove a material fact. The determination of whether evidence is relevant is within the discretion of the trial court. Engle v. State (1987) Ind., 506 N.E.2d 3; Coburn v. State (1984) 2d Dist. Ind.App., 461 N.E.2d 1154. In the present case, Evans’ testimony was relevant to confirm Evans’ familiarity with the defendant's appearance and add credibility to Evans’ ability to identify J.B. on the date of the burglary. The court did not abuse its discretion in admitting the evidence.

III.

J.B. contends that the court erred in denying his oral motion to suppress State's Exhibits 3, 4, 5, 6, 7, 8, consisting of an array of photographs of suspects in this case, and erred in denying his motion to strike Tyrone Evans’ testimony regarding identification of J.B. from the photographs. In each of the photographs, the individuals were holding a placard containing the person's height, weight, age and police identification number. Tyrone Evans testified that when Detective Bieberich first showed him the photographs the placards were not concealed. J.B. moved to suppress the exbibit and Evans’ identification testimony on the basis that the pre-trial identification procedure was unduly suggestive. The court conducted an evidentiary hearing on the matter. Detective Bieberich testified that it was his normal procedure to conceal the police identification information appearing in photographs used for identification. He further testified that he had in fact concealed the information in the photographs presented to Evans. (R-155-156) After the hearing the court overruled J.B.‘s motions.

On appeal J.B. argues that the pre-trial identification procedure was unduly suggestive. However, the testimony of Detective Bierberich that the information was concealed when Evans viewed the photographs sufficiently supports the court's conclusion that the pre-trial procedure was not unduly suggestive.

In addition, in Andrews v. State (1989) Ind., 532 N.E.2d 1159, our Supreme Court indicated that a photographic array consisting of uncovered mugshots in which the subjects were holding placards revealing the individual's weight, age and date of arrest, was not unduly suggestive because there was an independent basis for the witness's identification. in the present case, Evans testified that he had seen the defendant both on the day of the burglary and on a previous occasion. Evans also testified that be selected the photograph of J.B. because he recognized him as being the man he saw coming out of the apartment building. Therefore, there was an independent basis for Evans’ identification of J.B., and the pretrial identification procedure was not unduly suggestive.

IV.

J.B. argues that the court erred in overruling his objection to the testimony of Detective Bieberich. Detective Bierberich was allowed to summarize the information he received from State's witness, Chris Tyson, during bis investigation:

“A. He told me that he was out cleaning bis car when he was approached by a man who identified himself aa Jewell asking him if he wanted to buy a Fisher Stereo System. He also advised me that he knew Mary Lewis's apartment had been broken into. He had seen Mary Lewis's stereo before. Mary Lewis told him of the numbers flashing on the -- one of the components due in a malfunction. He told me that he asked the person trying to sell him the stereo to come in the apartment so that he could plug it in to see if it was Mary's stereo. And when he saw the numbers flashing he bought the stereo system off the man, and contacted Mary.” Record at 185.

J.B. argues this testimony was cumulative and repetitive because Chris Tyson had already testified directly about the same events. J.B. acknowledges that cumulative evidence is not per se inadmissible. Hunter v. State (1986) ind., 492 N.E.2d 1067. Moreover, the admission of such evidence is within the discretion of the trial court, and the ruling will only be reversed if the court baa abused its discretion. Wesby v. State, ( 1989) Ind., 535 N.E.2d 133. J.B. maintains, however, that the prejudice of the evidence outweighed its probative value because allowing a police official to repeat Tyson's testimony gave it “an added air of authenticity and veracity.” Appellant's Brief at 19.

Our review of the record does not convince us that in light of the particular objection made, the effect of Detective Bierberich's testimony was of such a prejudicial nature that the court abused its discretion in allowing the testimony. It was not error to overrule the defendant's objection to this testimony.

V.

J.B. argues that the court's judgment is not supported by sufficient evidence and is contrary to law. Particularly, J.B. contends that the State failed to prove the elements of receiving stolen goods beyond a reasonable doubt. We disagree.

The State correctly notes that on a claim of insufficient evidence, we will not reweigh the evidence nor judge the credibility of the witnesses and will consider only the evidence favorable to the judgment together with the reasonable inferences which may be drawn therefrom. Powell v. State 11988) Ind., 528 N.E.2d 483.

Indiana Code 35-43-4-2(b) (Burns Code Ed. Supp. 1990) provides, in relevant part:

“A person who knowingly or intentionally receives, retains, or disposes of the property of another person that has been the subject of theft commits receiving stolen property, a Class D felony.”

To sustain a conviction of receiving stolen property, the State must prove that the defendant knew the property was stolen. Stone v. State (1990) Ind., 555 N.E.2d 475. Knowledge that property is stolen may be inferred from the circumstances surrounding the possession, although knowledge may not be inferred from mere unexplained possession of the property. Id.; Marshall v. State (1987) 1st Dist. Ind.App., 505 N.E.2d 853.

The evidence in this case demonstrates more than mere unexplained possession. Chris Tyson testified that not long after the stereo was stolen, a man calling himself “Jewel” offered to sell Tyson a stereo matching the description of the victim's stereo for $100. Chris Tyson also testified that a man calling himself “Jewel” telephoned him at home after the sale of the stereo and offered to pay him money if he would not say anything about the sale. This was sufficient evidence to support the conclusion that J.B. was in receipt of property he knew to be stolen.

J.B. ultimately asserts that the witnesses be presented at trial were more credible than the State's witnesses. This is merely an invitation to reweigh the evidence which we decline to accept. The evidence and reasonable inferences therefrom support the court's judgment, and the judgment is not contrary to law.

VI.

Finally, J.B. challenges the sentence imposed. J.B. received a two year sentence, which is the presumptive sentence for a class D felony. In addition, the court ordered the sentence to run consecutive to a prospective sentence for probation violation.¹ J.B. contends that the sentence is manifestly unreasonable because the court failed to consider mitigating factors. Specifically, J.B. contends that the court should have found the following mitigating factors: (1) his young age and lack of prior adult criminal history, and (2) the fact that the crime neither caused nor threatened serious harm to persons or property.

J.B. concedes that the finding of mitigatinq circumstances rests within the discretion of the trial court. However, he relies on the following language from Budd v. State (1986) Ind., 499 N.E.2d 1116, 1121, to support bis assertion of error:

“Failure to find mitigating circumstances when clearly supported by the record may reasonably give rise to the belief that they were overlooked, hence, not properly considered.” (Emphasis supplied.)

However, the Budd decision is not instructive in this case. The record does not clearly support the findin9 of miti9&ting circumstances. J.B. was twenty at the time of sentencing. Although J.B. does not have an adult record, be does have a juvenile record. The existence of a juvenile record will support the enhancement of a sentence. See, Steele v. State (1985) Ind., 475 N.E.2d 1149. The court was therefore not obligated to find the absence of an adult record to be a mitigating factor.

Whether the crime caused or threatened serious harm to persons or property is a factor which the court may consider under I.C. 35-38-1-7 (Burns Code Ed. Repl. 1985). However, the trial court is not required to negate potentially mitigating factors. Jenkins v. State (1986) Ind., 492 N.E.2d 666. We discern no error in the court's imposition of the presumptive sentence in this case.

The judgment is affirmed.

FOOTNOTES

1.   J.B. presents no issue with respect to the propriety of a consecutive sentence in this situation. See, I.C. 35-50-l-2(b); Kendrick v. State (1988) Ind., 529 N.E.2d 1311; Arnold v. State (1989) 2d Dist. Ind.App., 539 N.E.2d 969; Cf. Frazier v. State (1987) 3d Dist. Ind.App., 512 N.E.2d 215, trans. denied.

SULLIVAN, J.

RATLIFF, C.J. and BUCHANAN, J. CONCUR