170 Ind. App. 689 | Ind. Ct. App. | 1976
Lead Opinion
— Appellant Robert Clayton (Clayton) appeals his conviction for second degree burglary
The elements of second degree burglary are: (1) breaking and (2) entering into a building other than a dwelling house or place of human habitation (3) with the intent to commit a felony therein. Cook v. State (1972), 258 Ind. 667, 284 N.E.2d 81; Carter v. State (1976), Ind. App., 345 N.E.2d 847; Apple v. State (1973), 158 Ind. App. 663, 304 N.E.2d 321.
We find that there is no evidence of probative value to establish Clayton’s specific intent to commit a felony in the gas station building and accordingly reverse.
The facts most favorable to- the State reveal that Officer Daniel Wade of the Indianapolis Police Department was patrolling the district in which the gas station'was located in the early morning of October 6, 1975. A parking lot enterprise was operated in conjunction with the gasoline filling station. Wade noticed that the overhead door of the building was open and that Clayton was inside using the telephone. Having worked that particular district for seven years, Officer Wade knew that the station was not normally open at that hour, so he observed Clayton for about two minutes. He then walked into the building and asked Clayton what he was doing there. Clayton replied that he was trying to contact the owner of the premises. The officer called John Grimme, the owner, and ascertained that Clayton did not have permission to be in the building. Grimme was asked to come to the gas station. In
Mere breaking and entering or unexplained presence in or about the premises is insufficient to establish intent to commit a felony. Faulkner v. State (1973), 260 Ind. 82, 292 N.E.2d 594; Nichols v. State (1973), 157 Ind. App. 605, 301 N.E.2d 246. While an element of an offense (here, intent to commit a felony) may be proven by circumstantial evidence, evidence which establishes only a suspicion of guilt is insufficient to meet the State’s burden of proof beyond a reasonable doubt. Tom v. State (1973), 261 Ind. 295, 302 N.E.2d 494; Nichols v. State, supra.
The evidence in this case establishes at best a mere suspicion of guilt. The State hypothesizes that it is reasonable to infer that Clayton intended to steal gasoline or to sell gasoline for his own profit while the business was closed. There is nothing of record to indicate what Clayton was doing in the building other than his own statement to Officer Wade that he was trying to contact Grimme.
We find this case to be more closely akin to those in which the intent of the intruder was shown to be, at best, ambiguo-us. In Easton v. State, supra, for example, the lock on an apartment door had been broken and the appellant was discovered inside the apartment watching television. The record player was unplugged and records which had been on the record player were sitting on the floor. When discovered, the appellant offered to pay for the lock and casually left. Since there was no evidence of flight, hiding, or burglary tools, the Supreme
Here, Clayton made no attempt to flee or hide, no burglary tools were found, Clayton’s only statement were professions of innocence, and the movement of the property was not only minimal, but also ambiguous. The record does not establish any facts which would allow a reasonable inference of Clayton’s specific intention.
The judgment is reversed and the cause remanded to the trial court with instructions to discharge Clayton.
. Ind. Ann. Stat. 35-13-4-4 (b) (Burns Code Ed. 1975).
Dissenting Opinion
Dissenting Opinion
— I respectfully dissent from the majority opinion because there is evidence to support a reasonable inference of the specific intent of Clayton to commit the felony of theft in the service station.
As recently emphasized in Kash v. State,
this Court must carefully examine the evidence most favorable to the State, not to determine whether every reasonable hypothesis of innocence is overcome, but to determine whether reasonable persons could form an inference with regard to each material element of the offense so as to ascertain defendant’s guilt beyond a reasonable doubt.*694 McAfee v. State (1973), 259 Ind. 687, 291 N.E.2d 554; Traylor v. State (1975), 164 Ind. App. 50, 326 N.E.2d 614.2
Even more specifically, in Farno v. State,
If the circumstantial evidence bearing upon [an element of the crime] could reasonably lead to either of two inferences, one of guilt and one of innocence, an appellate tribunal is not free to reweigh the evidence and determine which should have predominated in the mind of the trier of fact.4
The evidence
Creating a reasonable inference of guilt is this circumstantial evidence:
(1) the overhead door to the garage bay had been opened (this was not evidence of the breaking in, as the point of entry was a broken rear window) ;
(2) a gas price sign had been moved from the inside bay and leaned against an outside pump;
(3) Clayton was observed using the telephone for two minutes.
On numerous occasions a reasonable inference of guilt has been held to be sufficient evidence to support a judgment of guilt.
The majority rely on Easton v. State
The jury had two reasonable inferences from the circumstantial evidence before it, one of guilt and one of innocence; they chose guilt. The majority of this court have reweighed the evidence and chosen innocence.
The conviction should be affirmed.
Note. — Reported at 354 N.E.2d 338.
. (1975), 166 Ind. App. 666, 337 N.E.2d 573.
. Id. at 574.
. - (1974), 159 Ind. App. 627, 308 N.E.2d 724.
. Id. at 725-26 (citations omitted).
. This is not a case in which there is an absolute dearth of evidence on specific intent — as there was in those cases in which the Indiana Supreme Court found such evidence lacking. See Faulkner v. State (1973), 260 Ind. 82, 292 N.E.2d 594 (broken window, flight, pistol; nothing disturbed or missing); Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795 (broken window, hiding; nothing removed or disturbed); Goodloe v. State (1967), 248 Ind. 411, 229 N.E.2d 626 (flight, pry marks in open office; no burglary tools and nothing taken); Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6.
See also Lisenko v. State (1976), Ind. App., 345 N.E.2d 869 (pry bars, surrender; nothing missing or disturbed; Carter v. State (1976), Ind. App., 345 N.E.2d 847 (pistol, surrender; nothing missing or disturbed, no burglary tools).
. “[W]e must look to the evidence other than that concerning the breaking and entering alone to determine if there was sufficient evidence to show an intent to commit a felony.” Kondrup v. State (1968), 250 Ind. 320, 323, 235 N.E.2d 703, 705 (emphasis in original).
. See Carter v. State (1976), Ind. App., 345 N.E.2d 847, 848 n. 4, in which Judge Staton compiled appellate decisions finding sufficient circumstantial evidence on intent and concluded that they all contained some evidence of “the presence of burglary tools or of missing or disturbed property.”
. Supra note 5.
. Supra note 6 (defendant observed inside store loading a gun earlier in its rack). _ The Indiana Supreme Court used Kondrup to distinguish Easton, pointing out that the defendant in Easton was “sitting and watching television. Upon being discovered he got up and left, taking nothing.” 250 Ind. at 323, 235 N.E.2d at 705.
. (1975), 165 Ind. App. 471, 332 N.E.2d 843 (defendant wheeling refrigerator to which he claimed ownership).