Hahn v. State
533 N.E.2d 618
Ind. Ct. App.
1989
Check Treatment

*1 information, gations in the contained whether he ad-

judge asks the defendant acts, alleged and the defendant

mits the allegations.

admits the truth of the Sil- 249,

vers v. State include whether

253. considerations Other plea during guilty

the defendant admits

hearing understands the nature of he charged guilty plea that a is an

crime charged. Id.

admission to the crime

Here, from the there is no indication guilty anything place took at the

record

plea hearing than the mere offer and other plea.

acceptance of There was Snowe’s testimony by as to the facts

sworn Snowe

underlying charge. Neither was there reading allegations by prosecu fact,

tor and an admittance Snowe. probable reference to the

there is never a Further,

cause affidavit the record. interchange no verbal between regarding judge trial Snowe charge or the effect of the

nature of Therefore,

plea as the factu an admission. acceptance for

al basis was insufficient guilty plea.

her pro-

Reversed and remanded for further

ceedings opinion. consistent with Rivers, Muncie, Geoffrey appel- for A. JJ., CHEZEM, concur.

MILLER and lant. Pearson, Gen., Linley Atty. Lisa Anne E. Gen., Indianapolis, McCoy, Deputy Atty. appellee. for SULLIVAN, Judge. appeals Hahn his conviction for

Kevin S. Burglary, felony. a Class C I.C. 35-43-2-1 HAHN, Appellant Kevin S. (Burns Ed.Repl.1985). Because we Code (Defendant Below), trial, remand for a new we reverse and only either or both of two discuss whether Indiana, Appellee. STATE given misleading, so instructions evidence, light of the as to have influenced No. 18A02-8801-CR-26. conversely, unless we the verdict. Stated Indiana, Appeals Court giving say a matter of law that the can as District. Second beyond harmless of both instructions was doubt, we must reverse. See 8, 1989. Feb. 196, 266 Ind. Carter 866, 434 U.S. cert. denied (1977); Brewer v. 54 L.Ed.2d 142 S.Ct. Ind. Emge Sevedge decision cited The Brewer *2 Ind.App. 687, may not technically constitute it is traits, denied, case, approval. with sufficiently civil evasive as to be considered as a Emge prejudice presumed held that factor resolution question of the of in- an erroneous instruction and reversal will tent. lie proper unless “the verdict under instruc- objection, Over defendant’s the court

tions could not have been different.” 118 gave Final Instructions 11 and 12 which Ind.App. at 76 N.E.2d 687. respectively read as follows: Hahn, age went from the AWOL breaking “The mere entering Army during training Sill, basic at Fort alone, building, does not constitute evi- Indianapolis Oklahoma. He hitchhiked to dence of an intent to commit a felony in girlfriend. to see his She would not allow building. However, the necessary him stay with her but drove him to intent be inferred from other evi- Muncie formerly where he had lived. On case, dence in the direct both and circum- night 26, 1987, of March playing after stantial, time, force, such as the pool juvenile acquaintance, he en- and extent of entry.” Record at 76. through tered Bob’s Furniture Store a bro- flight person “The immediately after ken second-story climbing window after crime, commission or after he is pole. juvenile level on an outside The accused of a crime that has been commit- also entered the in the same man- ted, proved, if guilt. is not evidence of It ner but some moments later. Hahn testi- is, however, evidence of consciousness of fied that he place stay wanted a guilt.” Record at 77. night, had been turned down his very Three recent cases from our Su- mother, and lodging was afraid to seek preme time, Court have held that force and from other family or friends because the entry, coupled manner of even when Army looking would be for him. As a flight is not sufficient to alarm, demonstrate a triggered burglar result of a police specific intent, i.e., felonious arrived. intent to com- theft, required, though as here even question, Without Hahn broke and en- might general such evidence demonstrate a premises. tered only The other evi- felonious intent. dence, however, which could upon bear intent (1988) Ind., was that when the offi- In Justice v. State arrived, hole, perhaps wide, cers 295, 297, one foot the Court held: went ken window. large accomplice against was observed in the first and implements likely intentionally. moved through found, through to be removed from the him) second floors and a (who on both testified that Hahn’s foot and Hahn and his the hole or the second floor. No tools had no floor to make such a hole ceiling inadvertently bicycle charges pending through between the bicycle was too juvenile the bro- While insurmountable, mit the tent. The evidence does not need to be ence’ that the defendant intended to com solid basis to less tied to some other evidence which is strongly evidence of “Evidence (1987)], there underlying felony. corroborative and evidence of flight is evidence of but it must are not of the [1270] probative flight entering, Gilliam [v. provide actor’s at 1271. infer un in ‘a case, suspicious There was no additional con- evidence that Justice Hahn, touched, duct other than approached when the officers disturbed or even they arrived found Hahn (Emphasis hidden under property.” valuable some Although mattresses. supplied.) conduct window, permit 1. The evidence here would a conclusion such conduct would not seem to meet bicycle, "strongly that Hahn moved requirement but in of the corroborative” of Jus- fact that supra. it would not fit the broken tice v. Gilliam Earlier, Gebhart 531 N.E. denied, trans. 1270, 1271, 211, 212, held: the court Court stated: considered the recently, “Most court “Occasionally, upheld a this Court has here, namely the suffi question raised finding from sim- verdict steal ciency evidence of to steal entering. Lisenko v. ple breaking case, in Slaton attempted burglary in an *3 488, (1976), State N.E.2d 265 355 Ind.. v. State (1987), Ind., 510 N.E.2d 1343. v. 535, Carter (1976), State Ind. 265 Slaton, case, appellant was like often, 356 N.E.2d 220. More we fled, a scared from residence and off point in required that some fact entered, having having and after broken specific an intent to commit a toward manifesting the nature of his but before felony perpetrator the entered once has used knife purpose. Slaton a unlawful premises. Sipes v. State Ind., (1987), the coathanger, appellant while a and used (evidence N.E.2d 796 that defendant 505 however, had tire entered tool. Slaton standing in near a found victim’s house rummaged in a car outside and about currency table on which entering breaking before and into Timmons v. theft); adequately suggests It was the evidence of that residence. reh. 1212, State (1986), Ind., 500 N.E.2d searching conduct in about in additional denied, (defendant who broke into two brought car the evidence of which night, stealing businesses on at the same sufficiency to Slaton’s intent steal to the first, may be inferred to theft at intend is no additional mea level. There such v. State second); Ind., Aikens (1983), here.[2] sure of evidence (intent 820 to 443 N.E.2d pro- here insufficient in may not from be inferred to warrant bative value conclusion entering alone); Blackmon v. State fact, moral a rational trier of to a certain- Ind., (1983), (defendant N.E.2d 586 455 doubt, ty beyond appel- that a reasonable garage permis- inwas victim’s without lant had the to steal from the sion, box, opened a tool moved vari- might support house. well con- It that Meadows articles, theft); suggesting ous preponderance v. clusion the evi- Ind., State (1981), 428 1232 N.E.2d dence, (items but then criminal case missing ran- similar to those might sup- and not a civil one. It well sacked house found on defendant ade- Anderson v. theft); quate suggest port appellant intend- (1981), Ind., (intrud- N.E.2d 426 674 wrongdo- ed undetermined sort of some said, ‘look, T.V., big er who there’s old mischief, misdeed, ing, or immoral or il- heavy carry,’ too deemed to intend legal not act. However that is the issue grounds, overruled on other theft), A to be resolved. criminal conviction for v. Rhyne Ind., (1983), 446 N.E.2d requires proof beyond a burglary reason- specific criminal intent able doubt illustrate, cited the evi- As the cases in which coincides time with the acts insurmountable, need not but dence be constituting only provide solid basis to specific criminal offense must inference that the defendant charge. in It clearly be stated is the felony underlying commit the intended to crime as defined statute charged.” charged in this case and which was proved. The which must have been evi- Accordingly, prior extent that to the State, might well a conviction for Lisenko v. cases, beginning with supra, 35-43-2-2, crim- the crime defined I.C. in 355 N.E.2d held charge trespass, inal however that be tent commit theft inferred made. Welch v. State entry, Ind. even when cou time and pled impliedly they 824.” have been 509 N.E.2d supra 2. See note 1.

621 (co-defendant they testified in “to overruled.3 State, Meadows su- money”); v. find some distinguished* which are to be Cases pra, (house 1232 428 N.E.2d ransacked “strongly involve the corroborative” missing pos- property found defendant’s Justice v. required by additional evidence State, supra, session); Anderson v. State, supra, 530 N.E.2d include: (defendant said, accomplice Stanley v. State (1988) Ind., 531 N.E.2d residence, “look, while inside there’s (dresser opened drawer and closet T.V., big heavy too carry” old and later disturbed, clothing opened jewelry box room, nothing in another “ain’t but a bunch with); Gee tampered contents here”); Sargent of dolls in (residence 526 N.E.2d 1152 Dist., Ind.App. 469, ransacked”); Finley v. State “partially cited supra in Justice (flight plus (defendant seen property from inside out- found set); leaving carrying television disclosing side under circumstances (1987) Ind., Whicker *4 items). removed the defendant (defendant earlier inside 1062 observed of bag with trash full victim’s light evidence before us and property personal which was abandoned Gebhart, Justice, supra; supra; in view of possession pad defendant in of when fled Gilliam, supra, and we hold that the two State, supra, checks); Slaton v. of victim’s quoted instructions hereinbefore should (defendant rummaged N.E.2d 510 1343 given. The permit been instructions days victim’s car four earlier and “time, force, keys missing days had victim’s also four entry” solely and intent of combined earlier; occasions); defendant fled on both attempt discovery with Hahn’s to avoid im- State, supra, Timmons v. 500 N.E.2d 1212 ply intended that Hahn to commit theft at (defendant discovery prem- fled after inside entry. message the time of The clear of had burglary ises but committed another Gebhart, Justice, and Gilliam is to nearby theft resi- consummated from contrary. before); (1986) Pratt v. State shortly Because the evidence in this case less Ind., (guns 492 N.E.2d 300 from removed overwhelming permit rea- than would burglarized premises possession of de- . innocence, of sonable inference the mislead- Dziepak v. fendant); (1985)Ind., State 483 ing magnified nature the instructions is of (residence N.E.2d 449 and mon- ransacked likely more influ- therefore missing); (1985)Ind., Williams v. State ey State, See Ford-El v. enced the verdict. (defendant 481 1319 and en- N.E.2d (1989) Ind.App., Dist. 157. 3d 533 N.E.2d nothing tered when arrested had from but judgment is The reversed and the cause possession in his nor had residence for a is remanded new trial. disturbed; anything been removed or how- ever admitted a and a defendant from a residence north

theft five houses CONOVER, P.J., concurs with Blackmon v. opinion. shortly apprehension); before State, supra, 455 N.E.2d 586 (tool box about); BUCHANAN, J.,

opened and various dissents articles moved State, supra, v. Aikens opinion. N.E.2d 820 443 Ind., (1983) representative (entry 448 N.E.2d

3. Cases of those deemed over- 1078 effect- State, Sipes supra, flight); include: 505 N.E.2d coupled only ruled hammer ed use of (in distinguished may addition the case be (defend- supra, 356 Carter v. N.E.2d 220 discovered, by the fact that when fled defendant leaving premises apprehended ant leaving currency behind been which had forcibly entered. He was armed awith table); dining upon a room Correll v. State property revolver but no inside the Ind., (1985) (inference of 486 N.E.2d 497 disturbed); missing or had been was Coates and a to commit demand for beer ride 167; Ind.App., Dist. Ind., location); to another Coble v. State Dist., Ind.App., 464 Batie v. State 4th (intent N.E.2d 102 theft inferable N.E.2d trans. denied. time, entry); manner and Beard v. rom force of Judge, concurring. i.e., glass CONOVER, Presiding premises, imbedded broken in the tires, seat; cuts in the or other evidence majority, wish to I but concur with strongly suggesting attempt an doing. for so my state reasons may speculate made. While one that was errone- First, agree I instructions are moving his mere .Ind., (1988), Justice ous not rise bicycle, such evidence does to the Gilliam v. necessary required “solid basis” (1987), 1270. Both cases a reasonable inference thereof. proposition that intent to com- reaffirm the reasons, I For concur. those may reasonably pre- felony not be (b) (a) breaking, from the fact of sumed (c) flight, singly,

entering, and/or BUCHANAN, Judge, dissenting. thereof, together, as combination I dissent. law, I read cases. a matter of as these below, I For reasons discussed cannot provides “a sol- Some other evidence which agree that final instructions id reasonable inference” basis to in conjunction with the when considered underly- intended to commit the defendant presented trial, at warrant a re- evidence ing jury felony present must be before versal of Hahn’s conviction. While Justice necessary infer the intent 295, sug- Jus- burglary. a defendant of convict gests that a criminal cannot be conviction tice, 297; Gilliam, 530 N.E.2d at 508 N.E. if affirmed breaking, 2d at en- flight, it is clear flight tering, and “must be tied to some *5 long that so as there is some other evi- strongly other evidence which is corrobo- strongly dence which corroborates Justice, Id. rative the actor’s intent." of provides a solid to basis mine). (emphasis inference to reasonable of commit Clearly in this there is case substantial charged felony, the the conviction should (a) (b) breaking, entering, and evidence of id.; be affirmed. See see also Gebhart v. (c) possibly, flight (although is not as that Gilliam two). readily apparent first None of as the (1987), Ind., 508 N.E.2d 1270. The evidence, standing alone or recognized although Justice court that give to combination can rise a reasonable of there was evidence enter- inference Hahn intended to commit a felo- was ing of there evidence ny building, of while inside the as a matter demonstrating evidence of record “that Thus, question law. the sole is whether touched, ap- Justice disturbed even moving bicycle (majority) the mere of the proached any property." valuable Jus- (dissent) next the consti- to broken window tice, supra, supplied). (emphasis at 297 “strongly tutes corroborative evidence” observes, aptly majority As the the evi- providing “a solid to a rea- basis permits dence at trial com- sonable inference” Hahn intended to bicycle Hahn the it in moved underlying felony of the Although the front the broken window. case. the evidence is inconclusive as to whether question are Because we to review this actually fit bicycle could the under Justice and Gil- as a matter of law see window, 176-77, record at broken liam, moving I not the mere do believe reasonably could that jury inferred bicycle room in a where is some evi- in front placement bicycle of the spend night to Hahn intended corrobative of Hahn’s intent to window was required “strongly rises level of to commit theft. evidence” Hahn intended to corroborative (1983), Ind., Blackmon inference In theft. A reasonable supreme court affirmed a bicycle Hahn intended to cannot N.E.2d our steal Hahn arise solid evidence conviction when without some entered bicycle from the defendant attempted to take the demonstrated premises). he garage through an unlocked when entered the the victim’s box, window, opened tool moved various here, presented the evidence articles, and unlocked a door between the attempt I police, and Hahn’s to evade the garage condominium. The and the victim’s record reflects sufficient conclude the evi- recognized Blackmon court that the State probative sup- dence of value which would required prove completed was not to port did a conclusion that Hahn theft, jury could infer and the “some intend to commit undetermined sort garage mischief, misdeed, that Blackmon entered the with the wrongdoing, ... or Id.; Gebhart, supra, at see also Sla act.” See illegal intent to commit theft. .212 Rather, (emphasis supplied). the evidence (1987), Ind., 510 N.E.2d 1343 ton v. State presented in- strongly corroborates Hahn’s (defendant’s rummaging conduct of about tent, thereby providing jury with a prior en in an automobile for a solid basis inference tering fleeing nearby pro residence Hahn intended to commit theft. See Jus- additional measure of evidence vided the tice, supra. disagree I therefore must steal); necessary prove the intent given that final instructions 11 and 12 as Cooper (1984), Ind., misleading so as warrant the rever- (a jury reasonably could infer that the of Hahn’s The conviction conviction. sal requisite defendant had the intent to com should be affirmed. dwelling mit theft inside the he broken entered the evidence re into and when personal

flected that some of the victim’s customary place

property was not its of one and there was a

the middle room force); indicating entry by window

broken Gilliam, supra (conviction

but see for bur

glary reversed when the State did not

present jury

could have inferred the nature the felo

ny that the defendant intended to commit