Beard v. State, 282S47
| Decision Date | 23 May 1983 |
| Docket Number | No. 282S47,282S47 |
| Citation | 448 N.E.2d 1078 |
| Parties | Gary BEARD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
James G. McDonald, Jr., Princeton, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Attempted Burglary, Ind.Code Sec. 35-41-5-1; Sec. 35-43-2-1 (Burns 1979), and sentenced to twenty (20) years imprisonment. This direct appeal presents the following issues:
(1) Whether it was fundamental error for the trial court to allow a witness whose name was not endorsed upon the information, to testify at trial.
(2) Whether the evidence was sufficient to sustain a finding that Defendant was the perpetrator of the crime charged.
(3) Whether the sentencing criteria for enhancement of sentences by reason of aggravating circumstances, Ind.Code Sec. 35-4.1-4-7(c) (35-50-1A-7(c) (Burns 1979)), are unconstitutionally vague and overly broad.
(4) Whether the trial court erred in considering Defendant's expunged juvenile record in determining whether or not the presumptive sentence should be enhanced.
(5) Whether the trial court erred in considering Defendant's prior uncounseled juvenile adjudications in determining whether or not the presumptive sentence should be enhanced.
* * *
Defendant first contends that, over his objection, the State called, as a witness at trial, one Richard "Dick" Ballard, whose name had not been listed upon the information, to establish the ownership of the dwelling which Defendant had attempted to burglarize. We are at a virtual loss to understand Defendant's argument. The information lists a "Herb Ballard," and at trial "Herbert Ballard," whose address was the same as that shown upon the information for "Herb Ballard," testified that he is also known as "Dick." R. at 158. Defendant makes no claim that he was misled or surprised. Additionally, although he faults the trial court for failing to grant a continuance, the record shows that he never requested one and that he cross-examined witness Ballard in a manner suggesting his prior familiarity with the witness' expected testimony.
In challenging the sufficiency of the evidence, Defendant acknowledges that he was near the scene of the crime with a hammer shortly after its occurrence. He overlooks, however, the totality of the circumstantial evidence, that is, his presence near the scene only moments after the event, with an object which could easily have broken the window involved, accompanied by the manner in which he was apprehended.
The evidence most favorable to the State reveals that in Princeton, at about 4:00 a.m., Herbert Ballard was awakened by the sound of breaking glass. He discovered a broken back porch window and summoned the police. Officer Hardiman responded, interviewed Mr. Ballard, and, as he was returning to his squad car, espied something moving nearby in the backyard next to the Ballard residence.
Defendant, perhaps believing he had not been spotted, then attempted to hide behind a tree where he had left his bicycle and was arrested immediately thereafter by Officer Hardiman. An additional witness testified that at about 3:45 a.m. that morning, he had seen the defendant riding his bicycle at an intersection less than two blocks from the Ballard residence.
Contrary to Defendant's argument, his presence near the scene is not "unexplained." In Clayton v. State, (1976) 170 Ind.App. 689, 692-93, 354 N.E.2d 338, 340-41 (trans. denied), upon which Defendant relies, the Court recognized, from a review of precedents of this Court, that, upon a charge of Burglary, otherwise ambiguous circumstantial evidence of the intent of the intruder may be rendered unambiguous by the additional circumstance of flight or the possession of burglar's tools. Under Clayton, and cases cited therein, the mere presence nearby of the defendant, with a hammer in his hand, shortly after the breaking of a window, would not be sufficient evidence to sustain a conviction for Attempted Burglary; however the uncontradicted evidence of Defendant's contemporaneous flight from the police is evidence of a consciousness of guilt and when the previously mentioned evidence is considered in its light, the sum total rises to more than a mere suspicion of guilt and adequately supports a finding of guilt beyond a reasonable doubt. See Lisenko v. State, (1976) 265 Ind. 488, 490-91, 355 N.E.2d 841, 843; Bailey v. State, (1982) Ind.App., 438 N.E.2d 22, 23-24 (trans. denied).
Defendant next contends that Ind.Code Sec. 35-4.1-4-7(c) (35-50-1A-7(c) (Burns 1979)) is unconstitutionally vague and overly broad. Specifically, he urges the term "prior criminal history" is too vague to operate as an aggravating circumstance. He makes unsupported assertions that the statute does not adequately apprise the trial court of what it may consider when imposing a sentence, thereby assertedly providing "carte blanche" authority to disregard the basic or presumptive sentence.
The actual gist of his complaint is that the trial court assertedly considered, as one aggravating circumstance, a then pending unrelated charge of Rape of which Defendant was eventually acquitted. We need not address any of these contentions, because the trial court noted several aggravating circumstances: the intended victim, Mr. Ballard, was seventy-three (73) years of age; the other potential victims, Mr. Ballard's four children, present at the time, were retarded; the Defendant had a prior felony conviction, a pending Rape charge, and a lengthy juvenile record, all supported by the Presentence Investigation...
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