*1 сhecks in the He game. robbery, and in the stamps, tapes property recently fied stolen gunshot a wound in having one and his that he had been shot also testified anatomy deputy where the same area of the lapsed into a semi-con- of the players fleeing bandit were suffi He had two or three hours. wounded scious state find, beyond a and, jury of his cient to allow possession still in then recovered hospital. to the doubt, a bus Defendаnt was one winnings, rode reasonable State, (1982) v. bandits Williams of the a matter of argues 793, Ind., 795. Jordan v. 431 N.E.2d See law, to have the benefit he was entitled 11-12; 9, State, Ind., 432 N.E.2d (1982) Sul cireumstanc- favorable inferences 259, State, 217 Ind. (1940) v. livan he explanation his of how es with consistent State, (1982) Ind.App., v. Crane Supermarket of the possession came into 895, 897. He to be shot. happened how he "loot" and judg- The no reversible error. and the We find hospital at the cites his demeanor traveling from the ment of impossibility asserted the trial court is affirmed. Indianapolis robbery scene of DeBRULER, C.J., time. elapsed GIVAN, HUNT- hospital in Louisville PIVARNIK, JJ., concur. ER and evidence above The circumstantial the criteria to meet related was sufficient State, (1970) 254 v. Reynolds set forth 793, 482-83, N.E.2d 795 in that 478,
Ind. therefrom, conclude man could reasonable doubt, that it excluded beyond a reasonable of Defendant's hypothesis every reasonаble BEARD, Gary (Defendant Appellant innocence. Below), sufficiency of circumstantial "When the appeal, on this is questioned evidence Indiana, Appellee STATE of the evidence careful examine Cоurt must (Plaintiff Below). every whether rea to determine ly, not is over of innocence hypothesis sonable No. 282S47. infer come, whether an but to determine Supreme Court of Indiana. reasonably tending drawn ence bemay finding оf the trier of fact." May 1983. State, (1976) App. 170 Ind. Fletcher v. 13, 1983. July Rehearing Denied (citations omit 523. ted). required was not to cred jury he testimony, simply
it because correctly and did not act
identified himself hospital; and it is immate
furtively at the case,
rial, of this under the circumstances at the identity, his
that he had concealed crime, rendering eye-wit thus
scene impossible.
ness identification shows,
Further, clearly the record time argument,
contrary to De the criminal event and between
elapsed hospital was at the appearance
fendant's from permitted him to drive
ample to have This cireum-
Indianapolis to Louisville: identi-
stance, specifically possession *2 McDonald, Jr., James Princeton, G.
appellant. Pearson, Linley Gen., E. Atty. Richard Alfоrd, Gen., Albert Deputy Atty. Indianap- olis, for appellee.
PRENTICE, Justice. (Appellant) Defendant was convicted of Attempted Burglary, Ind.Code 35-41-5- § (Burns 1979), 85-48-2-1 § and sen- twenty (20) years tenced to imprisonment. This direct appeal presents thе following issues:
(1) Whether it was fundamental error for the trial court to allow a witness whose name was not endorsed the informa- tion, to testify at trial.
(2) Whether the evidence was sufficient finding to sustain a that Defendant was the pеrpetrator charged. of the crime (8) Whether the sentencing criteria for enhancement of sentences reason of ag- circumstances, gravating Ind.Code 85-4.- § 1-4-7(c) (85-50-1A-7(c) (Burns 1979)), are unconstitutionally vague and overly broad. (4) Whether the trial court erred in con- sidering expunged juvenile Defendant's rec- determining ord in whether or not pre- sumptive sentence should be enhanced. (5) Whether the trial court erred con- sidering ju- uncounseled аdjudications determining venile whether presumptive or sentence should be enhanced.
[*] La # I Street, ISSUE tian which is south of where parked. I was As I turned the cor- that, first contends over ner west going back on Christian called, as a witness objection, the State Street, I seen an individual run Ballard, whose trial, Richard "Dick" one spot- I turned the across street. listed the informa name had not been light spot- on and hit him with the tion, ownership to establish *3 light, he turned his head back to the attempted Defendant had to dwelling which me, left like this and looked toward loss to We are at a virtual burglarize. recognized and at that time I him as argument. The in understand being Gary Beard." R. at 178. Ballard," "Herb and at formation lists a Defendant, perhaps believing he had not Ballard," whose address was trial "Herbert spotted, attempted been then to hide behind upon the informa the same as that shown bicycle a tree where he hаd left his and was Ballard," testified that he is tion for "Herb immediately by arrested thereafter Officer as "Dick." R. at 158. Defend also known An witness testified Hardiman. additional he was misled or ant makes no claim that morning, at about 8:45 a.m. that he thаt although he Additionally, faults surprised. riding bicycle had seen the defendant his failing grant to a contin the trial court than from an intersection less two blocks uance, record shows that he never re the Ballard residence. the he cross-examined quested one and that suggesting Contrary argument, in a manner to Defendant's his witness Ballard expected with the witness' near the scene is "unex prior familiarity presence ' State, (1976) v. plained." Clayton In 170 testimony. 692-93, 338, 689, 354
Ind.App. 340- II ISSUE (trans. denied), which Defendant 41 relies, recognized, from a review the Court challenging sufficiency the of In Court, that, this a precedents of of evidence, acknowledges that the Defendant charge Burglary, ambiguous of otherwise of the crime with a he was near the scene evidence of the intent of the circumstantial after its occurrence. He shortly hammer unambiguous may by intruder be rendered however, overlooks, totаlity the of the cir flight circumstance of or the the additional evidence, is, presence cumstantial burglar's Clay of tools. Under possession after only near the seene moments the therein, ton, pres the mere аnd cases cited event, object easily an which could with defendant, with a ham nearby ence of the involved, accompa window have broken the hand, shortly breaking mer in his after the ap in nied the manner which he wаs by window, a would not be sufficient evi of prehended. Attempted to a conviction for dence sustain most The evidence favorable State evi Burglary; however the uncontradicted Princeton, at about 4:00 reveаls contemporaneous dence of Defendant's a.m., was awakened Herbert Ballard flight police is evidence of a con He a breaking glass. sound of discovered guilt previously sciousness of and when the windоw and summoned porch broken back evidence is considered in its mentioned responded, Hardiman police. Officer rises to more than a light, the sum total Ballard, and, Mr. as he was interviewed sup suspicion guilt adequatеly mere of car, espied something returning squad to his finding guilt beyond a a reasonable ports backyard next to the moving nearby in State, (1976) v. 265 Ind. doubt. See Lisenko Ballard residence. 488, 490-91, Bailey v. Ind.App., "Q. you response what did do Okay, State, (1982) 23-24 4 to that? (trans. denied). the other side and "A. I run around III ISSUE car and took jumped squad to sitting fifty off. I was about that Ind. Defendant next contends 35-4.1-4-7(c) (85-50-1A-7T(c) seventy-five feet or so from Chris- Code §- - expunged tions ordered and uncounseled (Burns 1979)) unconstitutionally vague is urges he overly Specifically, dispositions. Again, broad. we need not consider history" vague term criminal is too "prior arguments. the merits of these challenge does not the existence of his as an circumstance. operate aggravating unsupported He makes assertions that felony conviction or that the victim was the trial adequately apprise statute does not years age. over sixty-five Consеquently, impos- it when may court of what consider erroneously even if the trial court did con sentence, ing thereby assertedly providing matters, juve sider such as an uncounseled authority disregard "carte blanche" Illinois, nile see disposition, Baldasar basic presumptive or sentence. (1980) 446 U.S. S.Ct. curiam), in (per L.Ed.2d 169 gist complaint actual of his is that sentence, enhanced the circumstances considered, as one assertedly the trial cоurt clearly regarded aggra are allowed to be circumstance, a then aggravating pending vating adequate imposi are to sustain the charge unrelated of which Defend Rape *4 Richardson, tion of the enhanced sentence. eventually ant was We need not acquitted. Forrester, McNew, supra; supra; supra. contentions, any address of these because not demonstrated that he is has aggravating the trial cоurt noted several any upon entitled to relief these issues. victim, the Mr. circumstances: intended Ballard, (78) of seventy-three years was judg- We find no reversible error. The victims, age; potential the other Mr. Bal ment of the trial court is affirmed. children, time, present lard's four at the retarded; prior were the Defendant had a GIVAN, C.J., and HUNTER and PIVAR- conviction, felony pending Rape charge, NIK, JJ., concur. record, juvenile supported and a all lengthy DeBRULER, J., concurs and dissents Investigation Report. the Presentence with opinion. being There alternative bases for the en DeBRULER, Justice, concurring and dis- record, sentence De hanced noted senting. relief, he merits fendаnt has not shown that is, not
that that had the trial court relied of the evidence tend- Upon consideration assertedly vague overly the and broad I ing guilty, to the verdict of would the sentence was not statutory provisions, agrеe glass it is sufficient. The broken that supported by constitutionally otherwise val found on the porch window was State, (1983) id criteria. Richardson v. See house, the hole was broken inside of the and remand, Ind., after (Opinion 447 N.E.2d immediatеly the window lock. When above Ind., State, (1982) 8); at Forrester v. was arrested he held a hammer appellant 487; State, (1979) McNew v. arresting police which the officer his hand Moreover, Ind., the 391 N.E.2d 612. drop. him to These additional requirеd adequately is "prior history" term criminal in the ma- coupled facts with those recited specific apprise any mentally competent me are sufficient to convince jority opinion consider a may accused that the trial court appellant could conclude that jury that the here, conviction, felony as occurred prior to enter broke the window with the intent sentence. favoring a factor an enhаnced and steal. assign There is no merit to Defendant's cannot, however, the en- agree I State, (1981) ment of error. Landrum v. year of a basic ten sentence hancement Ind., Basham v. neces- twenty years of would the mаximum Ind., State, (1981) 1207-08. aggravating if circum- sarily result the IV V ISSUES & felony single stances were limited hashish, pend- of the delivery conviction chal last two issues age and the and retarded ing rape charge, lenge the trial court's reliance record, pre-sentence of the victims. juvenile aggravating as an circum character success- stance, appellant reveals that disposi- investigation the record contains because parole following fully completed conviction, rape charge was
drug two brought years until least after attack, the children alleged and old owner of the house
seventy-three year between twenty
broken into were adults age, there and is thirty-seven years
nothing any impair- to disclose the level juvenile judg- court regard
ment. I juvenile record to ordering appellant's
ment force, its destroyed
be as entitled to natural the use of that preclude
which is to record subsequent penalty,
to enhance a criminal remaining while valid factors favor term, the basic I beyond
some enhancement majority,
am unable to conclude as does the they adequately imposition sustain the twenty years permissible
of the maximum I sentencing
under the statute. am there- new voting
fore to remand this case for a hearing from which the
sentencing
juvenile will be excluded from con- record
sideration. MUSIC, Appellant
John Marvin Below),
(Defendant Indiana, Appellee
STATE of
(Plaintiff Below).
No. 682S223. of Indiana.
Supreme Court 24, 1983.
May