*1 26 language
lеgislative intent
in the
found
of the statute is that where
construction
produced in
multiple egregious results are
driver,
single
by an intoxicated
accident
such
do not increase the number of
results
crimes,
severity
penalty.
only the
and this
interpretation
This
of the statute
by the
application of the statute
Second
reading
District
a true
of the statute.
Defender,
Carpenter, Public
K.
Susan
the re-
The Second District also resolved
Defender,
Tuke,
Public
India
Deputy
M.E.
maining
appellant Kelly against
of
claims
appellant.
napolis, for
Accordingly
him in
this
a correct manner.
Pearson,
Gen.,
Atty.
Gary Da-
Linley E.
now, per
Court does
Justices DeBruler
Gen.,
Secrest,
Atty.
Indianapo-
Deputy
mon
Shepard, pursu-
Dickson and Chief Justice
lis,
appellee.
for
11,
Appellate
ant to
Rule
order
opinion of
District not be vacat-
the Second
DeBRULER,
Justice.
naught,
or
for
instead that it be
ed
held
but
Kelly
convicted on two
respects
hereby
is in all
summari-
now
(8)
eight
consecutive
counts and received
ly affirmed.
Justices Givan and Pivarnik
(4)
The first was for
year sentences.
grant
vote to
transfer and affirm the trial
intoxicated, resulting in
operating while
provi-
respects,
they
as
read the
court
all
9-11-2-5,
death,
I.C.
I.C. 9-11-2-2 and
calling
sions of this samе statute as
intoxicated caus
operating while
other for
multiple
multiple injuries or
crimes where
ing injury,
9-11-2-4.
Court of
I.C.
they
deaths occur as
did in this instance.
District,
Appeals,
affirmed the for
Second
Summary affirmance ordered.
opinion
the latter
an
mer and reversed
~
appearing
Ind.
Kelly
as
CJ.,
DICKSON,J.,
SHEPARD,
parties
Both
have
App.,
and, his semi-tractor in such drove convoy consisting of two trac-
into a small truck, being driven pickup
tors and a each killing family, by a member of the Wood injuring
one and another. following appeal, Kelly made the On McCOVENS, Appellant, Fred L. claims: Stipulation trial on the 1. His consent to v. involuntary, Testimony Indiana, Appellee. STATE ineffective assistance
2. He rеceived No. 49S00-8707-CR-674. counsel, from trial Supreme Court of Indiana. improper. 3. His sentences were sentences, resolving challenge to the In June 1989. that there Appeals concluded the Court single accident that had had been personal inju- death and the
resulted single
ry, and that there had been but the statute defin-
violation 1.C. operating a while the crime of vehicle The court concluded that the
intoxicated. *3 Bravard, Jr., Indianapolis, E. for
Walter appellant. Pearson, Gen., Atty. Gary Da-
Linley E. Gen., Secrest, Indianapo- Deputy Atty. mon lis, appellee. for GIVAN, Justice. jury
A
resulted in
convie-
trial
Burglary,
felony, tion of
a Class C
(5)
he
a sentence of five
received
(80)
by thirty
years, which was enhanced
finding
an
years due to a
habit-
offender,
Resisting
Law Enforce-
ual
misdemeanor,
ment, a Class A
for which he
(1) year,
of one
his
received a sentence
concurrently.
to run
sentences
29
approximately
purpose being
protect
facts
At
5:86
its
are:
§
25, 1986,
premises.
Officer Guthier of
a.m.
June
on the
Indianapolis
Department
re-
Police
"breaking"
committed a
when he either
had
ceived a radio call that an alarm
sound-
squeezed through
elimbed over it or
its
East 25th Street.
ed at Marcus Metals on
Joy
Ind.App.,
sections.
arrival,
Upon
observed
his
Officer Guthier
N.E.2d 551. We find the evidence is suffi-
position
running
man
in a crouched
appellant
cient to establish that
committed
across a lot inside the fence which sur-
"breaking."
rounded
business.
Appellant argues the evidence is in
squeezed
top
between two sections on the
sufficient to sustain his convictions because
of the fence and ran. Officer Guthier and
the State failed to establish that he entered
him,
they
him
Officer Morrolf chased
told
the property with the intent to commit a
officers,
police
and ordered him to
were
felony. He reasons that because he was
fleeing
stop, but he continued
toward an
charged
with theft and
proved
returned a
area of trees and brush. The brush
count,
verdict of
guilty
not
on that
police
to be too thick to traverse and
seized
*4
burglary
subject
the
and arrested him. The
conviction must be reversed.
gave what was later determined to be а
jury may
consider circumstan
false name and address. Officer Guthier
tial evidence and draw reasonable inferenc
appellant
person
identified
court as the
es
in determining
therefrom
whether the
they arrested on June 25.
defendant
the
had
intent to commit a felo
inspected
The owner of the business
the
ny
property.
after he broke into the
Lisen
premises and found that several
trans-
(1976),
488,
kо v. State
265 Ind.
355 N.E.2d
casings
mission
had been removed from a
841. To
burglary,
obtain a conviction for
it
places
to
bin
moved
two
near the fence
necessary
prove
is not
for the
to
State
that
gate. Appellant
being
and front
admitted
any
the defendant committed theft or
other
grounds, fleeing police,
giving
on the
a
felony
burglary
complete
because the
is
identification,
false
he
denied maintain-
upon breaking
entering
with intent to
ing any
property.
intent to steal
(1978),
felony.
commit a
Elmore v. State
Appellant argues the evidence is
532,
269 Ind.
theft,
jury
the
Additionally,
returned inconsistent ver
points
the State
out
contrary
dicts
law.
previously
that
Officer Morrolf had been
why
asked
alley
went into the
next to
Appellant's complaint is without merit.
25,
the business on
replied
June
He
breaking
Burglary requires
entering
previous
investigate
runs to
the alarm
felony.
the
with
intent to commit
Theft
sounding
Metals,
at Marcus
he found a
requires
control of
the unauthorized
anoth-
person standing in
property
deprive
alley,
er's
intent to
the
and when he
with the
him,
property.
jury
approached
owner of the
could
Appellant
he fled.
made
have had a reasonable doubt
to whether
objection
Any
no
at that time.
error in the
appellant
control of
exercised unauthorized
prejudicial,
admission of evidence is not
but still could have believed
harmless,
and therefore
if the same or sim
grounds
that he broke into the
ilar evidence has been admitted without
felony.
intent to commit a
Wilson v. State
objection or
Boyd
contradiction.
(1987),Ind.,
cer
him
asked
improperly
objected
instructed. He
In
whether he
had been Marcus Iron and
struction No.
previously
which informed the
Metal
and whether he had seen
person running through
that a
alley.
He
fence was a "structure" within Ind.
then asked him whether he
objected
saw
Cоde
and he
to In
§
*5
(This
alley.
on June 25 in the
is not the
struction No. which stated:
appellant
location at which
was seen and
"You are instructed
in
that
the law
pursued.) Appellant
moved
a mistrial
defining Burglary
Indiana
as the break-
ground
on the
that it violated a
in
motion
ing
entering
building
the
or struc
questions implied
limine and the
either that
person
ture of another
includes as
appellant
by police
had been sеen
earlier in
''Breaking
Entering' hopping
over a
alley
the
or that
men
two
were at the
fence."
morning
on
business
the
of June 25.
Appellant asserts the instruction was not
granting
The
of a mistrial lies
supported by the evidence because no
the
within
discretion of the trial court and
showing
hopped
was made that he
over a
only upon
showing
will be reversed
a
of
fence,
he asserts
in
but
fact walked
prevail, appellant
clear error. To
must
through
proper-
an unfenced section of the
placed
demonstrate that he
in
posi
was
ty. He believes the instruction was manda-
grave peril
tion of
to which he should not
tory
province
and invaded the
jury.
of the
subjected.
have been
A mistrial is an ex
remedy
treme
only
and is warranted
where
The business owner testified that
the
lesser-curative measures will not suffice.
completely
by
was
encircled
(1985), Ind.,
fence,
Bedwell v. State
481 N.E.2d
openings.
which had no holes or
1090.
allegations
instruction referred to
con-
cerning
crime,
an element of the
"break-
motion,
hearing
After
on his
ing,"
specific
allegations.
and not
factual
per
Officer Morrolf was asked whether the
jury
also
they
was instructed that
are
son
appel
whom he earlier hаd seen was
judges
the sole
of both the law and the
lant,
any
and whether on June 25 he saw
they
presume
evidence and
must
the defen-
up
alley.
one run
Officer Morrolf re
dant's
proves
innocence unless the State
plied
questions.
"no" to both
Because the
every
charged
element of the offense
be-
implications
possibly
arose from ask
yond
questions
negated
reasonable doubt. Wе find the in-
by
were
Offi
answers, appellant
cer's Morrolf's
struction
not mandatory
ap-
was not
and was
placed
position
grave
in
peril.
propriate
under the facts of the case.
Appellant argues the trial court commit-
Because
the evidence in
case
by refusing
pro-
is not
interpretation
ted reversible error
his
to the
that the
greater
posed
offense of
instructions.
was not com-
mitted, we find no
error
the refusal of
Appellant's proposed Instruction
his tendered Instruction No. 4.
compe
No. 2 stated that the defendant is a
Appellant's proposed Instruction
behalf,
tent
they
witness
his own
have
No. 7
topic
flight
covered the
of the
right
upon
testimony
no
to look
bearing
defendant as
evidence of the con
suspicion,
testimony
and his
should be
guilt.
sciousness of
An instruction similar
weighed
any
that
other witness. We
appellant's proposed
giv
instruction was
giving
have held that no
error occurs
en
argues
at trial.
now
that
refusing
this instruction or
it. Jackson v.
evidence
support
does not
the instruction.
Ind.,
State
to the attention of the 85-18-4-4(c) (Burns 1.C. Supp.1975). Having IC. 35-48-2-2. read these two highly likely degree It seems that third burglary, statutes, which was often not a lesser and predecessors, and their immediate degree included offense of first second thus,
burglary important respect, in an species all, burglary
not often a of at was
moved at time codification to and of trespass subsumed in the criminal statute. duty give
theWith due deference to legislative prerogative to define crimes King, Div., Appellate Point, Seott Crown punishments hand, on the one and the petitioner-appellant. for duty narrowly ambiguity construe in Pearson, Linley Atty. Gen., E. John D. hand, criminal the other statutes on Shuman, Gen., Deputy Atty. Indianapolis, correct conclusion to be here is reached respondent-appellee. yard that a fenced is not a "structure" meaning
within the of in term
burglary statute. I would the con- reverse GARRARD, Presiding Judge.
viction for and affirm the convie- Charles Stinson was tried resisting tion for law enforcement. was convicted of challenge theft. His sole appeal
on sufficiency is the of the evidence. spring In the of 1987 Stinson and David Gurdian, victim, were students at University Indiana Northwest and were among employees four student of the cam- pus photography kept lab. Gurdian in camera a steel closet in the lab. That STINSON, Petitioner-Appellant, Charles employees. area was restricted to v. In March Gurdian discovered that his camera had been removed from its case Indiana, STATE of missing. promptly reported He Respondent-Appellee. suspicion the theft and his of Stinson since No. 45A03-8901-CR-20. he had seen Stinson in the lab several Indiana, Appeals Court of February occasions and March before anyone Third District. else was around.
May 31,1989. Nearly year later the camera dis- possession.
covered Stinson's cam- readily era was identified as Gurdian's (A through its рhotogra- serial numbers. phy professor possess- recalled Stinson as style an older camera when he was 1987.) photography spring class in the agree that no sufficient inference guilt may be drawn from Stinson's mere possession Indeed, of the camera in 1988. stranger if he were otherwise a to the agree events of we would that the That, however, evidence was insufficient. is not the case. *8 totality sup-
Here the of cireumstances port the reasonable inference that Stinson was the thief.
Whether to draw that inference or not jury. having was the function of the It