Defendant was convicted by a jury of the offense of burglary second degree. Under the Second Offender Act, he was sentenced by the court to the custody of the Department of Corrections for a period of six years. On this appeal, he contends that the evidence was insufficient to sustain a judgment of conviction and that the court, therefore, erred in not sustaining his motion for judgment of acquittal. He further contends that the court erred in allowing the jury to hear identification testimony from the state’s eyewitness because the photographic identification and subsequent lineup were impermissibly suggestive so as to assure misidentification. We affirm.
The facts that sustained the conviction may be briefly stated. Juanita Person, then age 10 years, with her brother, Timothy Person, age 20 years, returned to the home of their parents, Mr. and Mrs. Timothy Person, Sr. on August 16,1974, between 4:00 and 5:00 p. m. Juanita was seated on the passenger side of the front seat of the automobile in which she was riding, and her brother was driving. As her brother pulled the car in the driveway at the home, she saw a green car in front of their house with a man sitting inside of it. She heard the car horn signal about five times and then a man, whom she identified as the defendant, came running out of the house. He first came out of the front door, ran across a front porch, down the steps, then through the yard within about ten or twelve feet from where she was getting out of the car. This man then entered the other automobile and it was driven away. When her parents came home, they determined that about $200.00 in money and a .25 caliber pistol had been taken from the house. They found a tire tool on a coffee table in the living room. The front door had been forced open. Upon viewing some black and white photographs submitted to her by the police,
Mr. Timothy Person, Sr. took an active interest in investigating this burglary and subsequent burglaries to his house after his house had been broken into some three times. Because of his activities in another investigation which had nothing to do with defendant, he was arrested and placed in jail. While he was there, through a conversation with another inmate, he learned that the defendant was in the cell next to him. In an ensuing conversation with the defendant, the defendant suggested to Mr. Person that he, the defendant, could get some of Mr. Person’s things back if Mr. Person didn’t prosecute. Mr. Person identified the defendant in the courtroom as the man who had this conversation with him.
In order to sustain his first point on appeal, that the evidence failed to make a case for the jury, defendant urges that we invoke the standards necessary for sustaining a conviction based on circumstantial evidence of defendant’s identity as set out in State v. Phillips,
Clear evidence of a forcible entry coupled with defendant’s presence inside a building is sufficient evidence to support a finding of guilty on a charge of second degree burglary. State v. Williams,
Defendant’s second contention of error concerns the allowance of the identification testimony of Juanita Person into the evidence. The defendant charges this testimony was impermissibly suggestive because of the circumstances surrounding the photographic identification and the subsequent lineup. Without going into these circumstances, which do not seem to support the charge, we fail to find that defendant has in any way preserved this point on appeal. In order to preserve this point for appellate review, defendant should have filed a pretrial motion to suppress the identification testimony, kept the issue alive by a timely objection at trial, and then should have presented this issue to the trial court' in his motion for new trial. State v. Miller,
The judgment is affirmed.