
    Mitchell L. Waters v. State of Indiana.
    [No. 180S6.
    Filed February 4, 1981.]
    
      
      J. A. Cummins, Public Defender of Delaware County, for appellant.
    
      Theodore L. Sendak, Attorney General, Stephen J. Cuthbert, Deputy Attorney General, for appellee.
   PlVARNIK, J.

—On August 1, 1979, appellant Waters was found guilty of murder by a jury in Delaware Superior Court. He was sentenced to life imprisonment. He appeals.

The evidence at trial revealed that on February 1,1977, Larry Brown left his former wife’s home at approximately 7:24 p.m. to meet with Mitchell Waters at a tire warehouse on Lilac Lane. The purpose of the meeting was to collect some checks for tires that Waters had bought on credit from Larry Brown’s employer. When Larry Brown did not return in an hour as he had promised, Diane Brown looked for him at his house and at his employer’s store, White Flash Petroleum. Brown’s truck was parked there and was locked. Mitchell Waters, the appellant, told Diane Brown on the telephone that he hadn’t seen Larry Brown since Saturday. The next evening, February 2, she reported Larry Brown as a missing person. Several persons, including relatives of Brown were concerned about what had happened to him and went down to the warehouse because of reports of a very bad odor emanating from that area in the following months.

Over two years later, on March 19,1979, Robert Poole was cleaning out a warehouse on Lilac Lane where tires were stored. When he emptied the old tires out of the end section, a body was found underneath them which was later identified as the remains of Larry Brown. Mitchell Waters had rented and used that section of the warehouse before Poole cleaned it out. When an autopsy was performed on the deceased, a bullet was found in the skull.

Prior to March 20,1979, Delaware County Sheriff Gary Carmichael and his deputies responded to a call from the owners of a house which appellant Waters had occupied as a tenant. They wanted Sheriff Carmichael to accompany them as they looked inside the house to observe its condition. On March 20, the Sheriff and deputies and the owners entered the house. A set of keys, a coat, a copy of a stop payment order and cancelled checks were seized.

The keys were identified as Larry Brown’s keys for his truck and for White Flash Petroleum. Diane Brown had given Larry Brown the key ring, which matched one she had. She had seen the key ring in his possession on the last night she had seen him. The stop payment orders were on checks issued to Larry Brown by Waters.

Appellant contends that the trial court erred in denying his motion in limine and in allowing State’s witness Dwayne Hendrickson to testify, in overruling a motion to suppress and in admitting evidence seized in a search, and that the evidence is insufficient to sustain the conviction of murder.

I.

Appellant first claims that the trial court erred in denying his motion in limine and in allowing Dwayne Hendrickson to testify.

Appellant had filed a Motion in Limine asking the court to rule that certain proposed testimony of State’s witness Dwayne Hendrickson be ruled irrelevant and immaterial and, therefore, inadmissible at trial. The court overruled this motion. Dwayne Hendrickson testified as to a conversation he had overheard in which Mitchell Waters had told his father, “You don’t have to worry about the money. It’s all taken care of.” There was no objection made to this testimony at the time it was given. Objection was made after recess during a “clean up” motion. The court denominated it a continuing motion and overruled it. In order to preserve error in the overruling of a pre-trial motion in limine the appealing party also must have objected to the admission of the evidence at the time it was offered. State v. Church of Nazarene of Logansport, (1978) 268 Ind. 523, 377 N.E.2d 607; Burrys v. Silhavy, (1973) 155 Ind.App. 558, 293 N.E.2d 794.

Appellant’s objection that the testimony was irrelevant and immaterial to the issues involved is without merit.

Appellant Waters had owed Larry Brown at least $15,000. He had given Brown two checks, one in the amount of $17,000 and the other in the amount of either $384 or $834. These checks were given to Brown and then taken back from him supposedly for the purpose of having Waters’ wife countersign them. The checks were never countersigned. Even though Waters had written these checks, he had never had more than about $1200 in his account. The above testimony was offered in an attempt to establish a motive for the killing. It also tended to be an admission that Waters had “taken care” of the problem of this debt. The evidence could reasonably contribute to the inference that Waters had killed Brown to avoid paying a substantial debt. Evidence having even a slight tendency to prove a material fact in issue is relevant. Jones v. State, (1979) 270 Ind. 285, 385 N.E.2d 426. There was no error in the overruling of this motion and the admission of this testimony.

II.

Appellant next claims that the trial court erred in overruling a motion to suppress and in admitting evidence seized in a search of defendant’s former residence. Mitchell Waters had rented a residence on Truitt Road, in Delaware County, from Mrs. Shroyer. He paid rent there from February 1978 to February 1979: The last rent receipt was dated January 24, 1979, and was for the rental period of January 24 to February 24. Mrs. Shroyer testified that the Waters had always paid their rent on time. When they did not pay rent in February she went to the house on March 2, to get the rent. No one was there and she could see that everything had been moved out of the kitchen and from another room that could be seen from the kitchen. On March 5, she and her husband went to Fairmont to see if they could “run them down.” The Shroyers had repeatedly asked Waters to remove a large number of tires that were on the premises. Waters had promised to move them and had not done so. When Shroyers found out that he had left, they were quite concerned. They went to Fairmont and waited for Mrs. Waters to come home. They finally saw her after midnight. She said that they would pay rent until the tires were removed. On March 9, the Shroyers wrote a letter asking that the tires be removed a: d told the Waters’ that since they had retained the keys the Shroyers would hold them responsible for rent and any damages to the property. On March 5, Mrs. Shroyer called the gas company and found out that the gas had been shut off because Waters did not pay the bill. Shroyers went in the house and plugged in an electric heater to prevent damage to the plumbing. At that time they saw a disconnect notice from Indiana Michigan Electric Company. They asked that the electricity be put in Mr. Shroyer’s name on March 10 or 11. Although there was property left in the house and tires left around the yard, Mrs. Waters said that they had decided, about February 4, 1979, not to live there any more. They had bought a house in Fairmont and had moved part of their possessions. They had been sleeping at the Fairmont house since February 10, and she considered that house to be her legal residence after February 10.

Mrs. Shroyer had called the police asking about what she could do about tenants who had vacated her rental property and left property inside the house and used tires around the out buildings. She wanted to go inside the house to check on the condition in which it had been left by the Waters’ and wanted the police to accompany her. On March 20, the Sheriff accompanied the owners to the Truitt Road house and entered the house with the owners’ key and their consent. At this time a coat was seized which had keys in the pocket, and a copy of an order to stop payment on checks was taken from a box on the floor. No search warrant was issued prior to this search. At this time Waters was being held in Delaware County Jail on preliminary charges of murder.

Appellant contends that because he did not give his consent to the search, it was an illegal search and that all items seized should have been suppressed. Appellant claims he had a possessory interest in the premises based on the facts that he had rented this property in the past, had not returned the keys, and had left considerable property on the premises which was not moved immediately after tneir buying the house in Fairmont. He argues that the owner’s request and consent did not validate the warrantless search of the Truitt Road house. The State contends that appellant had no standing to challenge the search since his failure to pay rent had terminated his leasehold and that he had no basis for a legitimate expectation of privacy in that house.

In determining whether appellant’s rights were violated when the sheriff accompanied the owners to the house and items were seized, we must determine whether Waters had a legitimate expectation of privacy in that house. Rakas v. Illinois, (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387; Pollard v. State, (1979) 270 Ind. 599, 388 N.E.2d 496. Appellant claims a kind of possessory interest in this house. In considering his claim we note that Ind. Code § 32-7-1-7 (Burns 1980 Repl.) provides that a notice to quit is not required to express a tenant’s intention to terminate his leasehold when rent is payable in advance and such rent is not paid. The failure of the tenant to pay such rent constitutes a default of the lease. Lafayette Car Wash, Inc. v. Boes, (1972) 258 Ind. 498, 282 N.E.2d 837. Here appellant had not paid his rent, had moved and bought a house in another town. He simply failed to remove all of his property from his house and yard after changing his residence. He had never contacted the owners to notify them he was moving from their house, instead they had had to try to locate him. When Mrs. Waters was confronted she claimed that they would pay rent until the tires were removed. However, it is undisputed that no more rent was ever paid after the January payment. The trial court heard all of these facts and determined that the lease had been terminated and that there was no violation of the appellant’s Fourth Amendment rights. We agree with this determination. There was no error in allowing these items into evidence.

III.

Appellant finally contends that the evidence is insufficient to sustain his conviction. He claims that some possible motive which was inferred from the evidence is the only connection between him and the offense.

The evidence most favorable to the State revealed that Larry Brown left Diane Brown’s home on the evening of February 1, 1977. At that time he had his keys with him. They were on a distinctive and unique key chain. He was going to meet appellant Waters at a warehouse on Lilac Lane to collect some checks for tires. Larry Brown was never seen alive again. Over two years later, his body was found in a warehouse on Lilac Lane that had been rented by Waters. His truck and business keys were found in a pocket of Waters’ coat, and stop payments orders against the checks given by Waters to Larry Brown were also found. Testimony was heard that Waters had told his father that he did not have to worry about the money, that he had taken care of it. It is clear that a conviction may be sustained upon circumstantial evidence alone. Willard v. State, (1980) 272 Ind. 589, 400 N.E.2d 151, 160; Ruetz v. State, (1978) 268 Ind. 42, 48-51, 373 N.E.2d 152, 156-57. The evidence here is sufficient to support the jury’s finding that appellant Waters was guilty of first degree murder.

Judgment affirmed.

Givan, C. J., DeBruler, J., and Hunter, J., concur.

Prentice, J., concurs in result.

NOTE — Reported at 415 N.E.2d 711.  