Atkins v. State

• Decision Date: 20 February 1974
• Docket Number: No. 3--473A36,3--473A36
• Citation: 159 Ind.App. 387,307 N.E.2d 73,40 Ind.Dec. 675
• Parties: Howell ATKINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 73

307 N.E.2d 73

159 Ind.App. 387

Howell ATKINS, Appellant, v. STATE of Indiana, Appellee.

No. 3--473A36.

Court of Appeals of Indiana, Third District.

Feb. 20, 1974.

Rehearing Denied April 11, 1974.

Anthony V. Luber, South Bend, for appellant

Thedore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

I. STATEMENT ON THE APPEAL

South Bend Police received a call on May 31, 1972 that three men were acting suspiciously in a dark alley behind Goff Heating, Inc. located at 1417 South Michigan Street. It was 1:00 o'clock A.M. in the morning when the police squad car, with the headlights off, turned into the dark, dirt alley and saw Howell Atkins leaning against a handcart next to a trailer. Howell Atkins and two other men ran when they realized that the police were nearby. The handcart wheels left an easily identifiable trail in the soft dirt to the back door of the building. Pry marks were found on the door. Goff Heating, Inc. had been burglarized. The trailer was wired to an automobile and loaded with bulky cartons which were identified at the scene by the office manager as the property of Goff Heating, Inc. Howell Atkins and the two accomplices were caught shortly after their discovery in the alley and arrested. The automobile and attached trailer were taken to the police station a few hours later. A pry bar was found under the front seat of the automobile. It matched the pry marks on the door perfectly.

A jury found Howell Atkins guilty of second degree burglary. ¹ He was sentenced to two (2) to five (5) years and placed in the custody of the Department of Corrections. His motion to correct errors raises six issues. Four of these issues question the sufficiency of the evidence. These issues are treated as a single issue and denominated 'Issue One' in this opinion pursuant to Rule AP. 8.3(A)(7) of the Indiana Rules of Procedure. The second issue questions the validity of the warrantless search of the automobile at the police station. Issue three concerns the State's tendered instruction number one (1) which addressed itself to fragmentary and circumstantial evidence presented at trial.

Our opinion concludes: 1) that the evidence was sufficient; 2) that the warrantless search at the police station was valid; and 3) that the State's tendered instruction was proper. We affirm.

II. STATEMENT OF THE FACTS

Mr. Neal Lee resides at 1406 South Main Street in South Bend, Indiana. The rear of his home faces toward the rear of the property owned and occupied by Goff Heating, Inc. At approximately 1:00 o'clock A.M. on the morning of May 31 Officers Singleton and Hayes of the South Bend police force arrived at the scene about 15 to 20 minutes later. The officers drove their patrol car down the alley with the headlights turned off to where the men had been observed. They turned their spotlight on only after discovering the three men. Howell Atkins was identified by the officers as the man they observed next to the parked trailer leaning against a handcart in the alley behind Goff Heating, Inc. Upon their discovery, the three men fled the scene. Officer Singleton pursued the apprehended Atkins and a second man, placed them under arrest and returned them to his patrol car. The third man was apprehended shortly afterwards.

1972, Mr. Lee observed three men in the alley which separates these two parcels of property. Although he could not specify the identity or describe the theft activities of those men, Mr. Lee did note movement and observed the men attaching a trailer to a car parked in the alley. Fearing that the men were entering his garage, Mr. Lee telephoned the police.

Officers Singleton and Hayes later discovered that the trailer connected to the car parked at the scene contained several large cartons and noted that some were labeled 'Air-Conditioner.' Further investigation resulted in the discovery of tracks in the dirt alley leading from the trailer to the doors of the Goff Heating, Inc. storage building. Those tracks matched the trail left by the handcart in the possession of Howell Atkins when Officers Singleton and Hayes arrived at the scene. Following those tracks, the officers noticed that the latches on two of the doors to the Goff Heating, Inc. building had been pried off.

Mr. Lee Ullery, the office manager of Goff Heating, Inc., arrived at his employer's place of business after being notified of the break-in. Ullery was apprised of the situation by Officers Singleton and Hayes. Ullery confirmed that the handcart at the scene and the cartons in the trailer were the property of his employer.

The car and trailer were taken to police headquarters. Mr. Ullery again identified the contents of the trailer as the merchandise of Goff Heating, Inc. A warrantless search of the trailer and the automobile was then conducted by the police and resulted in the discovery of a pry bar under the front seat of the automobile. Marks left by that pry bar were later matched with those on the doors of the Goff Heating, Inc. storage building.

Howell Atkins made vigorous objections to the testimony of the arresting officers concerning the pry bar. He contended that this testimony violated his Fourth Amendment rights since the pry bar was the product of an unlawful search and seizure. The trial court excused the jury and held a hearing on Howell Atkins' motion to suppress. The trial court overruled the motion to suppress.

In his defense, Atkins presented the testimony on an alibi witness. James Wilder lived near Goff Heating, Inc. on South Main Street. Wilder testified that Howell and two companions had visited his home at approximately 11:30 o'clock P.M. on May 30, 1972. Wilder further testified that he had gone to his bedroom to lie down sometime after his guests arrived. Later, he noticed that he could no longer hear his guests. Finally, the next sound he recalled was a policeman apprehending someone at the side of his home. Wilder testified that this last event occurred some five or ten minutes after he had noticed the absence of his guests.

Howell Atkins' motion to correct errors presents the issues set forth below.

III.

STATEMENT OF THE ISSUES

We will consider six issues:

ISSUE ONE: Four (4) of the issues concern sufficiency of the evidence and will be treated here as a single issue.

ISSUE TWO: Was the warrantless search valid and the pry bar testimony admissible?

ISSUE THREE: Did the trial court err in giving State's tendered final instruction number one?

IV.

STATEMENT ON THE LAW

ISSUE ONE: Sufficiency of the Evidence.

Atkins contends that the State failed to present sufficient evidence connecting him to the burglary of the Goff Heating, Inc. storage building on May 31, 1972. He contends that only an opportunity to commit the crime was proven by the State. Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874, 235 N.E.2d 62.

When reviewing the sufficiency of the evidence, this Court cannot weigh the evidence nor determine the credibility of witnesses, but may look only to the evidence and reasonable inferences therefrom most favorable to the State. A conviction will be affirmed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the Appellant was guilty beyond a reasonable doubt. Walker v. State (1973), Ind.App., 293 N.E.2d 35; Shank v. State (1972), Ind.App., 289 N.E.2d 315. Circumstantial evidence is subject to the same general review. Walker v. State, supra, Miller v. State (1972), Ind.App., 285 N.E.2d 843; Taylor v. State (1972), Ind., 284 N.E.2d 775. The specific test for the examination of circumstantial evidence requires that we view the evidence, not for the purpose of determining whether or not it is adequate to overcome every reasonable hypothesis of innocence, but with the view of deciding whether an inference may be reasonably drawn therefrom which tends to support the finding of the trial court. McAfee v. State (1973), Ind., 291 N.E.2d 554, 556; Glover v. State (1973), Ind.App., 300 N.E.2d 902.

The circumstantial evidence before us is that Atkins was discovered by police in a dark, dirt alley where a neighbor had reported suspicious activities. Atkins was first seen by Officers Singleton and Hayes leaning against a handcart, later identified as one belonging to Goff Heating, Inc. The handcart was located next to a trailer containing cartons identified as merchandise of Goff Heating, Inc. Tracks left by the handcart led from the trailer to the door of the storage building which had been forcibly entered. A pry bar seized from the car matched the pry marks on the door of the storage building. When Atkins was discovered at the scene, he fled. Evidence of flight or other actions calculated to hide a crime or effect an escape is admissible as evidence of guilt. It is for the trier of fact to assign the weight to such evidence. Turner v. State (1970), 255 Ind. 427, 429, 265 N.E.2d 11. Presence at the scene of a crime in connection with other circumstances tending to show Atkins' participation may be sufficient to support a finding of his guilt. McGill v. State (1969), 252 Ind. 293, 247 N.E.2d 514.

The above circumstantial evidence and the reasonable inferences therefrom support the conclusion that Atkins was guilty beyond a reasonable doubt.

ISSUE TWO: Search and Seizure.

Atkins contends that the pry bar testimony was erroneously admitted since the discovery of the pry bar was the result of a constitutionally prohibited warrantless search. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. After Atkins' arrest, the automobile with the attached trailer containing contraband was removed from the dark, dirt alley to the rear of the South Bend Police Station. 'Q. Now Officer may I turn your attention to the early morning hours of the...