*1 plan the common identity or to demonstrate activity from which or scheme of criminal charged originated
the defendant
crime. Malone criminal 1339. Evidence other the wit admissible "where activity is also complete necessary to testimony is
ness' transaction ... story of the criminal accused's may reveal the evidence
where mind."
state McCormick (1982) Ind., 996. In the regard case, Appellant's statement
instant pawn burglary of the attempted the common
shop clearly demonstrates Ap activity from which of criminal
scheme burglaries at 36386 perpetrated the
pellant according The trial court Roosevelt.
East refusing to excise ly did not err statement
portion of Appellant's activity. prior criminal
mentioned his things in all affirmed.
The trial court is DeBRULER,
GIVAN, C.J., HUNT- PRENTICE, JJ., concur.
ER and GAUNT,
Jeffrey Appellant A.
(Defendant Below), Indiana, Appellee
STATE Below). (Plaintiff
No. 1282S480. of Indiana.
Supreme Court
Dec. *2 Walda, Ehinger,
John D. Ronald J. Bar- rett, McNagny, Barrett Wayne, & Fort for appellant. Pearson,
Linley Atty. Gen., E. Michael Worden, Gen., Deputy Atty. Gene Indian- apolis, appellee. for PRENTICE, Justice.
Following
the Defendant was
guilty Burglary,
B felony,
found
a class
§
(Burns 1979),
Ind.Code
Theft,
felony,
a class D
Ind.Code
35-483-
1979).
(Burns
4-2
He was sentenced to
(12) years
imprisonment upon
twelve
charge
Burglary
years impris-
and two
upon
charge.
onment
the Theft
The two
year
upon
the Theft
suspended,
placed
and the Defendant was
later, after
that automo-
house. Moments
probation to run consecu-
years
on four
Burglary sentence.
tively to the
around,
its driver
turned
bile had been
vehicle,
and the same
stopped the
(6) issues:
appеal raises six
This direct
out,
carrying
gray
gotten
now
who had
for
conviction
1. Whether
box, reentered.
contrary to
felony,
B
Burglary, a class
*3
police,
reported the incidents to the
Noll
law;
immediately and found
investigated
who
sup-
convictions
are
the
2. Whether
garage
door had been
that a window
evidence;
ported by sufficient
mower and
аnd that a lawn
two
broken
court abused its
3. Whether
boxes,
garage
had been in the
all of which
denying Defendant's motion
in
discretion
missing.
previous night, were
On the
the
al-
thé scene of the
jury to view
for the
afternoon,
they
found
crime;
leged
home,
pants
in dark sweat
at his
dressed
in
erred
sus-
the trial court
4. Whether
shirt, mowing his lawn with the
and no
hearsay
on
objection,
taining the State's
green
A
"Blazer" was
stolen mower.
testimony of a defense
to the
grounds,
driveway,
missing
and the
parked in his
witness;
garage.
in his
tool boxes were
erred in al-
the trial court
5. Whether
deposi-
a witness'
lowing the State to use
I
ISSUE
memory,
inasmuch as
refresh his
tion to
taken thirteen
deposition had been
the
argues
convie
Defendant
that his
crime;
the
after the dаte of
months
felony,
B
is con
Burglary, a class
tion for
Statute,
Burglary
trary
the law. The
Whether Defendant's
6.
provides:
Ind.Code
(12)
Burglary
the
years on
twelve
or constituted
manifestly unreasonable
was
and enters the
person
"A
who breaks
punishment.
and unusual
cruel
person,
another
building or structure of
it,
felony in
com-
to commit a
with intent
Diann
that Mrs.
The record disclosed
fеlony. How-
a class C
burglary,
mits
May
1980
Ferris
left
home
felony
B
if it
ever,
is a class
the offense
At about
go
a.m. to
to work.
about 7:20
deadly
armed with a
while
is committed
Kathy
neighbor,
p.m. Mrs. Ferris'
12:40
Chevy
building or structure
Noll,
green
weapon or if the
a "two-toned
noticed
felony if it
class A
dwelling, and a
a
parked in the Ferris
Blazer"
automobile
bodily injury or serious
results in either
medium-built
drivewаy.
observed a
She
hair,
any
person."
other
wearing
bodily injury
dark
young man with dark
shirt, walking around
pants and no
sweat
ga-
that the attached
contends
that,
though
even
house. She testified
entered
not a
had been
rage which
was
away
the activi-
feet
from
she was 400-500
meaning of the stat-
"dwelling" within
A
min-
nothing
her view.
few
ty,
blocked
merit.
ute,
argument
is without
but his
vehicle,
again observed the
later Noll
utes
Ind.App.
175
In Abbott v.
driveway.
into
had been backed
which
Appeals
N.E.2d
the Court
person with dark
subsequently
saw a
She
from the evidence
clear
held that it was
away.
driving the vehicle
no shirt
hair and
into, in
garage
was broken
that the
sticking out the
handle was
A lawn mower
family
case,
of the
part
parcel
was
twenty
About
of the vehicle.
windоw
back
dwelling. The
reasoned:
Court
left the Fer-
after
the vehicle
minutes
question
attached
garage in
"The
residence,
squealing of
Noll heard the
ris'
door
house. -An interior
to the
window,
tires,
and saw a
out her
looked
the house to
vinyl
and exit from
a dark
entrance
automobile with
beige "Buick"
of food for use
A freezer full
hair,
garage.
a
with dark
top.
observed
She
garage,
family
situated
by the
get out of that
pants, and no shirt
sweat
family's
pool table for the
as well as a
the Ferris
run toward
automobile and
370, 371 N.E.2d at
Ind.App.
Id. at
recreation."
(reh. denied).
that the
argues that the fact
II
full of food and
a freezer
garage contained
The defendant next
family recreation was of
place for
was a
that he
evidence did not establish
reaching
the court
great significance to
crime
that he had the
perpetrator of the
the case
its decision and
felony.
We
requisite
intent
to commit
bar,
of such use
presented no evidence
first note our standard of review for suffi
However,
placed
the court
garage.
cienсy of the evidence:
emphasis on those two factors
greater
no
evidence,
"Upon for sufficient
review
upon the facts that
it did
than
only
this Court will look
to the evidence
the house and that an
was attached
and all rea
most favorable
State
fact,
connected them.
interior door
*4
there
sonable inferences
be drawn
"gаrage
in
the
court stated
Abbott
If the existence of each element
from.
part of the house as the
as much a
was
charged may
the crime
be found there
Burgett,
in
...
was in the house
basement
doubt,
from, beyond a reasonable
so,
more
since there was an
probably
and
In such a
verdict will not be disturbed.
which allowed direct access
interiоr door
review,
conflicting
weigh
we will not
evi
371,
garage."
house to the
Id.
from the
judge
credibility
dence nor will we
at 725.
371 N.E.2d
(1980)
State,
Loyd v.
the witnesses."
(1974)
State,
Ind.App.
Burgett
In
v.
161
404,
272 Ind.
398 N.E.2d
cert.
157,
799,
N.E.2d
the Defendant
231,
denied,
449 U.S.
101 S.Ct.
into a basement which had no direct
broken
omitted).
(citations
L.Ed.2d 105.
upholding
In
to the house.
the con-
access
felony may
Intent to commit a
degree burglary the court
viction for first
the circumstances
surround
inferred from
said:
Turpin
ing the incident.
directly
are located
under
"Basements
Bonner
living area of a residence and are
271 Ind.
variety
purposes
for a
connected
used
pro
there was sufficient evidence of
Here
family living,
storage of
such as
with
support
a reasonable infer
bative value
items,
household
location of heat
various
requisite
Defendant had the
in
ence that
equipment,
mechanical
and laun
and
felony.
tent to commit a
While Defendant
dering
clothing. Being under the
he
the Ferris' home to
claims that
went to
roof, functionally interconnected
dog,
his lost
he was seen there
search for
immediately contiguous to other
with and
separate
three
occasions Witness
house,
requires
con
portions of the
broken,
garage
and
Noll. The
window was
agility
leap
fulsome
missing.
siderable
over this
garage
from the
were
Fur
items
interrelationship
to a conclusion that a
ther,
matching
person
Noll
witnessed
part
dwelling house
description
away in a
is not
of a
Defendant's
drive
basement
pro
connects the
green "Blazer" with a mower handle
no inside entrance
court erred sustaining court erred the State's jury the scene of the crime. Ind. to view objection under the Patterson rule. Pat (now repealed) regarding Code terson v. part: provided pertinent views *5 Patterson, N.E.2d 482. evidence which "Whenever, opinion in the of the court purpose had admitted for another been parties, the consent of all the it and with allowed to be considered as substantive proper jury is for the to have a view of evidence the out of court declarant place any material fact oc- for cross-examination. Al was available curred, may order to be conduct- it is to though we have held that not error body, under the of an ed permit hearsay evidence to be considered officer, place, which shall be requirements if as substantive evidence by person appointed shown to them some met, of Patterson were it does not follow purpose." the court for that hearsay yet admitted is rendered not The Defendant simply as substantive evidence admissible State, by objecting not to the motion for a If requirements because those can be met. view, should be deemed to have con the out of court declarant is available when However, is sented to the view. consent offered, is therе is no need to -the evidence object. failure But more than a to even hearsay pro- from the traditional wander grant parties, with the consent of the to Also, hearsay seriptions. qualify as sub lay deny the motion within the discretion Patterson, under it is not stantive evidence court, ruling and the is reversible merely sufficient to show the declar- discretion. оnly for a clear abuse of that that he ant has testified. It must be shown 610, (1972) 258 Ind. Pinkerton for cross-examination. available 616, 283 N.E.2d 380. We find no such until There can be no cross-examination abuse. questioned evidence is in. In this after case, it is true that the out of court ISSUE IV testified, declarant, availability had but his contends that error reversible concerning the for cross-examination decla the trial court sustained the occurred when not shown. ration was Stuckey's hear- objection to Donald State's Further, Stuckey's affidavit was subse- testimony, denying him the bene- say thus corroborating testimony. fit of erucial quently into evidence without ob- admitted jection any request for a limit- May and without Stuckey testified that around noon ing the samе instruction. It contained he called the Defendant borrow VI ISSUE court Pick that hearsay statement defendant, The previously excluded. im- argues that the sentence by the therefore, harmed cannot have been upon manifestly him unreasonable posed ruling complained of. punish- and unusual constitutes cruel ment. sen At the time of V explained its rea tencing, the trial court complains of The defendant sen enhancing the Defendant's sons for permitted to use Ste having been State's tence as follows: memo to refresh his deposition Pick's
ven are no miti- "The court finds that there deposition had been ry, inasmuch as follow- gating and that the cireumstances subsequent to year than one morе taken aggravating circumstances: are A written memoran of the crime. the date committed "1. That the recollece may used to refresh dum be illegally carrying a con- the offense of forgetful witness. Richardson tion of a permit weapon without a on Feb- cealed present cause ruary 1981 after Ind.App., Carter Superior filed in the DeKalb Court (Tr. denied). In Car arraigned showing and after he had been ter, Appeals reiterated foun the Court authority. disregard for originally forth requirements set dational "2. That the Defendant has had nu- 156: Ind. in Clark v. ju- violations as a merous misdemeanor re- may "A witness time in 3 institu- venile and has served facts, by referring juvenile pages as forth on memory tions as a set fresh Report. and 3 of the Presentence memorandum, written either to a written That the Defendant has shown no "3. another, at or near the by himself or unlikely to for his actions and is remorse occurrences; memo- time affirmatively probation. respond randum cannot be substituted aggravating jus- circumstances "These of the recollection of the witness. stead *6 thе sentence from the tify the increase of writing recalls inspection "If an of years of 10 to 12 recommended sentence facts which he to the mind of the witness years." had, known, which previously the trial court's discretion It is within moment, recollection, escaped he his for a presumptive sentence whether testify being facts as can then to such decreased be crime be increased or will personal knowledge." his own within aggravating mitigating circum cause of Ind. at 157. stances. Hill v. trial, Pick if he re At was asked We will not alter a 996-997. giving deposition on June membered judge if it is within by set sentence memory if of the events was and his appears that the statutory bounds unless it currently. day it on that than better manifestly unreasonable. is sentence questions affirmative answered both Pick (1982) Ind., 438 N.E.2d Bryan as deposition further identified the ly. He 2(1). A Ind.R.App.Rev.Sen. sen given testimony he had copy a true "un manifestly not unreasonable tence is all of he had reviewed it. Under and that could find such less no reasonable appropriate particular to the of cireumstances, it fоr the trial court dep for which such sentence the fact that the fense and offender to determine whether 2(2). year after the imposed." Ind.R.App.Rev.Sen. had been taken one osition Further, is excessive and un punishment crime, nearly year prior and one date of trial, by rea if it: rendered it unreliable constitutional to the of see no abusе son of remoteness. We "(1) contribution makes no measurable goals punishment of such acceptable to ruling. in the discretion nothing more than the tools, appellant it constitutes they talked about tools, subject and that the of imposition of said he liked and needless purposeless dog up. came Pick appellant's lost bird suffering; or рain and remember no then testified that he could "(2) proportion to the grossly out of is prosecu- The more about the conversation. severity of the crime." permitted tor was to treat his own (1982) Ind., 430 N.E.2d Bray v. it, witness, As I see as a hostile witness. 1162, 1167, quoting Hawkins v. prosecution here to be the interest of the by cross-examining already Pick had served 820-821. served, adequately when the court been sen Inasmuch as the court's testimony objection sustained the to the of the sentenc the bounds tence within hearsay grounds, and therefore Stuckey on statute, per that a reasonable is such ruling. the court was error appropriate, reflects a son would deem that no harm majority The concludes goals punish acceptable concern for the exclusion of could have resulted from ment, proportion grossly is not out of and testimony Stuckey, its the oral crime, the Defend severity of the the form of an affidavit was substance in merit. argument ant's is without during his cross-examination admitted judg- The find no reversible error. We agree. I That prosecution. do not affirmеd. ment of the trial court is prepared by defense counsel affidavit was office, and contained at least one GIVAN, C.J., and and PIVAR- HUNTER very gross error. The affidavit would NIK, JJ., concur. force when com- persuasive weak its DeBRULER, J., opinion. dissents with Stuckey's testimony in-court un- pared to appellant Pick had asked der oath that DeBRULER, Justice, dissenting. appеl- these tools permit him to store My difference with the Court relates him his dad wanted lant's since evidentiary ruling in Part IV of at issue grant I get out of the barn. would majority opinion. Pick had a conversa- require and appellant a new appellant Stuckey over- tion with outright testify as Stuckey be prosecution heard. Pick testified for the say at the time. he hеard Pick to what regarding his recollection of what was said Stuckey was later in that conversation. give by the defense to his version
called appellant in that was said Pick
what His differed conversation. version similar cireumstances
from Pick's. Under *7 recently held that where the content of
we up statement was taken
an out-of-court during asserter the out-of-court with Appellant, PRINE, Lee Randall she would be deemed testimony at cross-ex- for full and effective availablе of the out-of-court of the basis amination Indiana, Appellee. STATE of statement, point in the trial when at a later No.683S210. differing of the same statement version Lowery offered. Supreme Court of Indiana. Pivarnik, C.J., 868, (Givan, Here, point.). J., dissenting a different Dec. appellant removed the
Pick testified placed them from the car and tools stolen he, did not garage, and that time He testified that at the
touch them.