*1 We find no er- The statute was followed. sentencing.
ror in the reasons, foregoing For affirmed; trial court and sentence are return to Defendant the $150 ordered to defray counsel. pauper seized costs SULLIVAN, JJ., concur. SHIELDS HINKLE, Appellant, Jerry L. Indiana, Appellee. STATE of Appeals District. Second Conn, Defender, Bailey
Harriette Public Bean, Defender, John W. Deputy Public Indianapolis, appellant. Sendak, Gen., Atty. L. Kenneth
Theodore Gen., Stamm, Deputy Indianapolis, Atty. R. appellee. SULLIVAN, Judge. Hinkle was convicted Degree Burglary. of First counts our
raises numerous issues for review. Our however, disposition, requires treatment following: only the err in Did by an in- *2 purpose were stolen for the sole guns formant who was deceased at the time of sale. expediting the trial?
2. Did the trial court err in We reverse. and distinct crimi- evidence of I. nal act? over Hin sup- 3. Was there sufficient evidence to objection, kle’s state port the verdicts? by ments made an purportedly informant was as fol- The evidence adduced at trial which linked Hinkle to other break-ins. burglar- lows. residence was Holloway The informant was deceased at the time of Entry ized on trial. The statements were introduced to gained through patio family door for probable establish cause a search. Our room; door had been shattered. probable review of the record discloses that sets, camera, Two television a clock radio cause was not in issue. Hinkle made no guns and three were stolen. The Bedford evidence derived from suppress was burglarized house December search; rather, objected he to the ad jam The front door was broken and a mission of the informant’s statements in the watch, jewelry a small amount of presence of the on the basis of irrele guns cash and two missing. Under- vancy. cover agent Raymond Lewis testified that questionable testimony was elicited negotiated guns of two Larry from Police Detective Musall. He Jerry transaction, from During Hinkle. as follows. testified purportedly stated that he had “Q. Alright, Larry, once would “been getting for some time1 you please, tell us this is for the guns were “hot”. purposes probable cause for Hinkle allegedly “my told Lewis that wife warrant, search what it was the bought twenty-two me the caliber rifle and you? informant First of recited got However, the rest of myself.” them you probably give all I think should specifically explained never how he his name so there is no e., theft, guns, obtained the i. whether by A. His name was Robert Crooks. purchase, Clearly, etc. presented showing pos- that Hinkle was in Q. Alright, please now recite what session of some stolen firearms. Two that information was? by were obtained in their establishing Okay, A. the information search of Hinkle’s home were identified at was, me of reliability he advised n Holloway guns. trial Merrill as his several breakins that occurred and pos- State did not show that Hinkle was in reciting breakins to me he ad- these session of property.2 Bedford’s vised me of the information that was Jerry related to him from Hinkle of
When Hinkle took the stand in his own
actually
how he
entered the house on
defense,
had,
cash,
claimed
each breakin.
I called Mr.
purchased
one at a time “at bars
how his house
asked
and on the street”. He could not recall how
entered,
and the information
paid
much he
or from
that Mr.
told me was ex-
they
whom
were purchased, and he ex-
actly what
the informant
told me.
plained
money
that he sold them to raise
payments.
Q.
you
his overdue house
In addi-
tell
where he
Did the informant
tion, he maintained that he told
information?
acquired
Lewis
this
conflicting
the rifle marked for
1. There is
evidence as to whether
2. Mr. Bedford testified that
purposes
Exhibit
Hinkle said he had been
as the State’s
his; however,
year.
Number Two
the State nei-
for four to five months or for one
ex-
ther admitted the exhibit into evidence nor
plained where that rifle was found.
“in
safely
neither
stated that
A. The informant
him on
go
tent”, “motive”,
had asked him
at issue
“purpose”
nor
him.”
several breakins
Furthermore,
before us.
neither
case
cross-examination,
nor
items
Musall revealed:
mode of
nature of the
And on
taken in the three
was indicative
information, besides
“Q. What
scheme,
plan,
op
common
method of
already
us
you
what
*3
about,
(1st
say
identity.4
did he
eration
See Brooks v.
how
State
learned of this information from
1973)
Ind.App. 414,
Dist.
N.E.2d 894.
156
296
Jerry Hinkle?
534,
(1960)
See Loveless v. State
240 Ind.
864;
(4th
166
N.E.2d
O’Conner v. State
A. First-hand from
1002;
the
bragging
1978)
994,
about
Dist.
382
Ind.App.,
N.E.2d
into.”
places that he had broken
Ind.,
(1978)
Cf. Bruce v.
375 N.E.2d
State
1042,
988,
1077-78,
denied,
99
cert.
439 U.S.
issue
In the absence of
search,
586,
the admission
S.Ct.
third which Hinkle was not III. charged.3 apparently court admit trial to the rule set pursuant ted this evidence insufficiency of claim of Where 80, forth in Watts v. 229 Ind. State raised, on review this Court is the evidence 570, it was 95 N.E.2d wherein held that favor only will look and distinct crimes is evidence along all able to the State intent, motive, purpose, admissible to show in of our Because inferences therefrom. plan. scheme or or a common remand, we court on structions charged burglaries separately. charged treat the two 26, (the January which occurred on 1973 22, and December 1973 burglary) burgla With the Bedford burglary Bedford burglary ry, were no to the witnesses charged, which Hinkle but of which fingerprints and no identifiable were found the introduced the Mr. at scene. While Bedford identified 1, on burglary, Gordon occurred gun, at one of the exhibits trial as prerequisites 1972. None of the for admis- from whom State did not where or acts, sion of evidence of criminal as gun recovered. the rec State, supra, set forth in v. Watts ord is other or infer devoid of evidence present non-charged burglary here. The linking Hinkle to that crime. On was remote in There was no time. direct record, basis of such a Hinkle’s conviction probative conclusively evidence must for Count II cannot be sustained and placed at the scene Pettigrew discharged. generally See burglaries. Although all three offenses oc- 1975) (2d Ind.App. 165 332 State Dist. county, curred in the locations same miles apart. nevertheless several N.E.2d 795. burglary City. in 3. Hinkle also trial court’s The Gordon occurred Gas cites error grant entry seeking gain in limine Mr. failure a motion Gordon testified that prohibit burglar in in the back introduction of the evidence broke “back is, however, only door”. The item was a color televi- admission trial, evidence at and not denial of the sion set. limine, requested in which constitutes Ind., Lagenour error. v. State N.E.2d Chief Judge, dissenting. There evidence is some complicity majority’s I reversal and dissent to Whether, however, there is sufficient evi conviction for burglary remand of a under upon which to base a on conviction Count complicated the trial court’s there is sufficient to sustain this admission of erroneous certain evidence. conviction. allowed the evidence which Admittedly sustains to testify officer that as a result of the circumstantial, how- conviction statements, informant’s one repeated ever it over and has been victims, burglary was contacted and that our standard review of circumstan- burglary the method “was is the same as in other exactly what the informant me.” This recently case. As Justice Pivarnik might provided well have the link (1978), Ind., Ruetz v. 373 N.E.2d inviting to connect with the *4 157: Holloway burglary. infer- two reasonable [W]here arising from the evi- circumstantial from the earlier Apart dis- guilt dence in one of another cussed, bur- for the innocence, it duty right is not the supported glary testimony to we simply this court reverse that order to encourage an undercover not might believe circumstances do firearms, agent various at least hypothesis exclude of which had been from Hollo- innocence. way, agent told the had been that he (1978), And in Jones v. Justice Hunter for a substantial Ind., 377 N.E.2d 1351: period, “things getting and that hot were We do not to find that circumstan- also testified that in his [me].” adequate ev- to overcome agent, gave conversations with the clear hypothesis of innocence ery reasonable the guns. indication had stolen but an inference rea- only whether possible, it is probable, While if not drawn sonably tending therefrom jury disbelieved Hinkle he said he when support finding of the trial court. complicity in of the fire- indicated the theft The circumstantial sufficient sale, merely promote we cannot arms sustain Hinkle’s conviction of the affirm on that basis. unable We are be found in these circum- residence can as a matter the evi- conclude of law that testimony Raymond stances: dence, independent of erroneously ad- Lewis, (undercover agent) who stated that evidence, overwhelmingly mitted indic- getting “he had been told him of guilt ative sufficient to the error render time for some harmless. attempting (including the to sell Accordingly, we to order compelled feel “hot”; the two Holloway guns) discharge II Bed- been being which had testified as sto- ford and to reverse and remand Holloway residence were len from the locat- new trial on Count I residence and ed in the Hinkle Hinkle could adequately how the had possession.1
come into his only fa- Considering SHIELDS, J., concurs. State, together with all rea- vorable to the J., opin- logical C. dissents inferences sonable and to be drawn therefrom, ion. I believe that the facts recited view, my de- 1. In because there oth- admitted evidence of the was sufficient participation er evidence to establish was harmful. ceased informant Holloway burglary, believe I do not could inferences and the above sufficient evi- therefrom constitute
draw Hinkle’s conviction of to sustain Indiana, Plaintiff-Appellant, STATE DUTTON, George Defendant-Appellee. Appeals of
Fourth District.