Anderson v. State, 980S382

• Citation: 426 N.E.2d 674
• Decision Date: 14 October 1981
• Docket Number: No. 980S382,980S382
• Parties: Reginald ANDERSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 674

426 N.E.2d 674

Reginald ANDERSON, Appellant, v. STATE of Indiana, Appellee.

No. 980S382.

Supreme Court of Indiana.

Oct. 14, 1981.

Ellen S. Podgor, Crown Point, for appellant.

Theodore L. Sendak, Atty. Gen., George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Reginald Anderson, the appellant, was charged with burglary, a class B felony, in violation of Ind.Code § 35-43-2-1, and was convicted of the charge after a jury trial. In addition, the State sought to have Anderson sentenced as an habitual offender pursuant to Ind.Code § 35-50-2-8. The jury found that Anderson was an habitual offender. The trial court sentenced him to imprisonment for ten years on the burglary charge and a "consecutive" term of thirty years on the habitual offender finding, making a total of forty years.

I.

Anderson was charged with breaking and entering a dwelling with intent to commit theft of property.

The first claim is that there was insufficient evidence of his intent to commit a felony and that the trial court therefore erred in overruling his motion for a directed verdict. The burglary statute provides:

"A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelling, and a class A felony if it results in either bodily injury or serious bodily injury to any other person."

Anderson argues that there was no evidence that he intended to commit a theft and no evidence that any things were taken from the house that was broken into. He asserts that the evidence established only that there was a breaking and entering of a dwelling house, and that he was found by police near the house. Indeed, Anderson argues, the fact that he left the dwelling without taking anything demonstrated the absence of the intent to commit a felony.

Two cases have held that convictions for burglary could not be sustained merely by evidence of breaking and entering or entry without consent: Faulkner v. State, (1973) 260 Ind. 82, 292 N.E.2d 594; and Crawford v. State, (1968) 251 Ind. 437, 241 N.E.2d 795. Faulkner, Anderson acknowledges, was expressly overruled in Carter v. State, (1976) 265 Ind. 535, 356 N.E.2d 220, to the extent that it did not permit an inference of specific intent from the breaking and entering of a building at 2:00 a. m. by a defendant armed with a revolver. He urges, however, that since no weapon was involved in the breaking and entering here, the Faulkner rationale that proof of the breaking and entering element is not sufficient to establish proof of the intent element should apply.

Similarly, in Crawford v. State, supra, this Court held that an inference of intent to commit a felony could not be drawn merely from the fact that a defendant was in a garage without the consent of the owner or manager. Crawford was expressly overruled (Lisenko v. State, (1976) 265 Ind. 488, 355 N.E.2d 841) to the extent that it did not permit an inference of specific intent from defendants' failure to explain their presence at 4:00 a. m. in a building to which they gained entry by prying open a door, and from their statement to a police officer, who responded to an alarm, that they "gave up." Anderson urges that since no statement was made in his case, the rationale of Crawford should apply.

We agree that the mere breaking and entering of a dwelling does not constitute evidence of intent to commit a felony. But the inferences permitted in Carter, supra and Lisenko, supra, constitute circumstantial evidence that goes beyond the mere fact of breaking and entering and may support the intent element. The record in this case supports even more than the indirect inferences permitted in Carter and Lisenko. Joe Tillman, a fifteen-year-old boy who lived with his family in the house Anderson entered, gave the following testimony: He was at home alone in his upstairs bedroom when he heard the sound of breaking glass. He called his aunt and the police, procured a gun from his mother's bedroom, and hid in his closet. He heard one intruder come upstairs. This intruder said, "look, there's a big old T.V., too heavy to carry." A second voice downstairs said, "go to the next room," and then the person upstairs said, "ain't nothing but a bunch of dolls in here."

On review of claims of insufficient evidence, this Court does not weigh the evidence or resolve questions or credibility but looks to the evidence and reasonable inferences therefrom that support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657; Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890.

The evidence given by Joe Tillman was sufficient to support the inference that Anderson, who was seen by Tillman in his bedroom and identified by him shortly after he and his accomplice fled the house, intended to commit a felony theft upon breaking and entering the Tillman house. The trial court did not err in denying the motion for a directed verdict.

II.

Anderson's next two issues, which we combine for review, concern the claims that the evidence on the habitual offender allegation was inadmissible, that the State failed to establish a prima facie case that he was an habitual offender, and that the trial court erred in denying a directed verdict on the question, because the testimony and documentary evidence of his prior felony convictions did not adequately identify him as an habitual offender, citing Smith v State, (1962) 243 Ind. 74, 181 N.E.2d 520. The statute provides:

"(a) The state may seek to have a person sentenced as an habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two prior unrelated felony convictions. A person who is found to be an habitual offender shall be imprisoned for an additional fixed term of thirty years, to be added to the fixed term of imprisonment imposed under section 3, 4, 5, 6, or 7 of this chapter.

(b) After he has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction, a person has accumulated two prior unrelated felony convictions. However, a conviction does not count, for purposes of this subsection, if:

(1) It has been set aside; or

(2) It is one for which the person has been pardoned.

(c) If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing; if the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing, under IC 35-4.1-4-3.

(d) The jury (if the hearing is by jury), or the court (if the hearing is to the court alone), may find that the person is an habitual offender only if the state has proved beyond a reasonable doubt that the person had accumulated two prior unrelated felony convictions." Ind.Code § 35-50-2-8.

The State alleged two prior felony convictions, a 1974 conviction for entering with intent to commit a felony and inflicting injury upon a police officer, and a 1975 conviction for robbery.

The State sought to prove the 1974 conviction by introducing, over the defendant's objection, the following: Exhibit 1, a copy of an information charging Reginald Anderson with burglary and inflicting injury upon a police officer, and containing the following certification:

"Superior Court of Lake County, Criminal Division I hereby certify that the foregoing is a true copy of the original on file in this court and cause.

Nick Krochta, Clerk

By Marlene Gooch, Deputy Clerk

Date December 12, 1979 "

This statement is signed by Marlene Gooch. Exhibit 2, a copy of an order by Judge Clement accepting Reginald Anderson's plea of guilty certified in the same form as Exhibit 1. Exhibit 3, a copy of an order by Judge Clement sentencing Reginald Anderson on each count, certified in the same form as Exhibit 1. All three Exhibits bore the same criminal case number. In addition, the prosecuting attorney who was assigned to the 1974 case testified that he was present when Reginald Anderson entered his guilty plea and when he was sentenced on the charges referred to in Exhibits 1, 2 and 3. He identified the appellant as the same Reginald Anderson who was convicted in the 1974 case.

The State sought to prove the 1975 robbery conviction by the following evidence: Exhibit 4, a copy of an information in Marion County Criminal Court charging Reginald Anderson with robbery, stamped "Official Certified Copy, Bernard J. Gohmann, Clerk of Courts True and Complete," signed by a deputy clerk of court; Exhibit 5, a copy of an order by Judge Dougherty, Criminal Court of Marion County, accepting Reginald Anderson's plea of guilty to the charge of robbery, stamped with the same certification as on Exhibit 4; and Exhibit 6, a copy of an order of Judge Dougherty sentencing Reginald Anderson on the charge, stamped with the same certification as on Exhibit 4. In addition, the State introduced Exhibit 7, consisting of a notarized affidavit signed by Edward Jones, keeper of the Records for the Indiana State Prison, certifying that an attached order of commitment, a photograph, and fingerprints were true and correct copies of the record of Reginald Anderson. The State also introduced Exhibit 8, a set of fingerprints taken from the appellant on the day of the hearing on the habitual offender count by Kenneth Roberts.

In addition, the State called Officer Wleklinski, who was in charge of the Lake County Crime Laboratory. Wleklinski testified that the fingerprints in Exhibit 7 belonged to the same person whose...