Berry v. State, No. 372A141

Docket NºNo. 372A141
Citation287 N.E.2d 557, 153 Ind.App. 387
Case DateOctober 03, 1972
CourtCourt of Appeals of Indiana

Page 557

287 N.E.2d 557
153 Ind.App. 387
David A. BERRY, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 372A141.
Court of Appeals of Indiana, First District.
Oct. 3, 1972.

[153 Ind.App. 388]

Page 559

Lawrence D. Renfro, Renfro & Whitton, New Castle, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Defendant (appellant) was convicted in a trial by jury of First Degree Burglary, and sentenced accordingly. Defendant's Motion to Correct Errors, which was overruled, alleges twelve specifications of error, the first seven of which he has elected to consolidate and present one [153 Ind.App. 389] argument in support thereof. In so doing, it would appear that the main thrust of the argument in support of Specifications Nos. 1 through 7, is that the verdict is not supported by sufficient evidence upon all the necessary elements of the crime charged, and that the verdict is contrary to law in that the State did not prove beyond a reasonable doubt that the defendant was guilty of the crime of First Degree Burglary.

As it is correctly pointed out in defendant's brief, in determining whether there is sufficient evidence to uphold a conviction, this court will not weigh the evidence or determine the credibility of witnesses, but will consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom. Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970), 254 Ind. 150, 258 N.E.2d 407. Furthermore, the conviction will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Coleman v. State (1971), Ind., 275 N.E.2d 786; Gibson v. State (1971), Ind., 271 N.E.2d 706; Taylor v. State (1971), Ind., 267 N.E.2d 383.

In the instant case, the evidence most favorable to the State reveals the following:

On the evening of August 3, 1971, Mrs. Gertrude Gaddis, a fifty-six year old widow, visited a local tavern in New Castle, where she became acquainted with David Berry, the defendant. The defendant was accompanied by George Ford whom Mrs. Gaddis had known for some time. Pursuant to a conversation, Mrs. Gaddis agreed to drive the two men to Indianapolis the following day, which she did. Ford and the defendant also accompanied Mrs. Gaddis on the return trip to New Castle that same day. On the following evening of August 5, Mrs. Gaddis left her home at approximately 8:00 P.M., for the X Club in New Castle. Prior to leaving her home she locked [153 Ind.App. 390] the front and rear screen doors to the house. While at the X Club, Mrs. Gaddis received a phone call from George Ford. At approximately midnight, Mrs. Gaddis departed the X Club, and proceeded to the Twilight Club, where she once again encountered the defendant and George Ford. Ford immediately left the Twilight Club upon Mrs. Gaddis' arrival, while defendant remained with her until approximately 2:30 A.M., when they both returned to her home. Upon entering the home Mrs. Gaddis discovered that her jewelry boxes had been opened and the contents removed. She immediately called the police, and while awaiting their arrival she further discovered that a television, a radio and a lighter with her name engraved on it had also been removed from the home. The police officer who arrived on the

Page 560

scene later discovered that the screen in the rear door to the house had been cut.

The defendant remained at Mrs. Gaddis' home until the following Monday morning, when he left for work in Muncie. Defendant returned shortly before noon and upon entering the house he sat down and placed a pack of cigarettes and a lighter on a coffee table. Mrs. Gaddis recognized the lighter as one of the articles which had been stolen from her home the previous Friday night. When Mrs. Gaddis asked defendant the following morning where he got the lighter, he replied that he found it.

The foregoing evidence was revealed by the testimony of Mrs. Gaddis. Another witness for the State, Mrs. Wilma Bolden, testified that her husband, her brother-in-law, George Ford and the defendant met outside her home on the Friday evening a week after the burglary, and after this meeting her husband discovered a white paper sack containing a large assortment of jewelry in the garage. When she asked her husband where it had come from, he stated it was probably 'hot'. The following day the four men once again gathered at the Bolden home where, according to Mrs. Bolden, she [153 Ind.App. 391] overheard the defendant 'talking about this girl he'd robbed'. She also stated that defendant referred to the 'girl he'd robbed' as 'Pat' which was Mrs. Gaddis' nickname. Mrs. Bolden testified, without objection from counsel for defendant, to other statements which she overheard defendant make connecting him with the burglarizing of Mrs. Gaddis' home. Mrs. Bolden subsequently turned a portion of the stolen articles into the police who obtained a search warrant and recovered the rest of the loot from the Bolden home.

The testimony of Mrs. Bolden's brother-in-law, Cecil Bolden, revealed that the defendant had sold him a...

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10 practice notes
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...v. State (1975), Ind.App., 324 N.E.2d 835, 837; Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 96; Berry v. State (1972), Ind.App., 287 N.E.2d 557, This principle, obligating a party to tender desired instructions or to make specific objection when the trial court has failed to properly ins......
  • State v. Bodtke, No. 84-447
    • United States
    • Supreme Court of Nebraska
    • March 8, 1985
    ...accused, that it was freely and voluntarily made and was not the result of coercion or induced by promises." See, also, Berry v. State, 153 Ind.App. 387, 393, 287 N.E.2d 557, 561 (1972) (a defendant's admissions to private citizens are admissible "so long as they are voluntarily made"); In ......
  • Boland v. Greer, No. 3-479A109
    • United States
    • Indiana Supreme Court of Indiana
    • July 13, 1981
    ...such as love and affection can only be made by the trier of facts utilizing sound and liberal discretion." 153 Ind.App. at 338, 287 N.E.2d at 557. The court's opinion that the loss of love, affection and companionship are injuries capable of ascertainment echo the sentiments of Dean Prosser......
  • State v. Williams, No. 2--572A5
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1973
    ...to damages. Hardebeck v. City of Anderson (1965), 137 Ind.App. 455, 209 N.E.2d 769. Although Berry v. State (1972 Ind.Ct.App., 1st Dist.) 287 N.E.2d 557 was a criminal appeal, its quotation from Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680 has general application and is "Counsel, kn......
  • Request a trial to view additional results
10 cases
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...v. State (1975), Ind.App., 324 N.E.2d 835, 837; Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 96; Berry v. State (1972), Ind.App., 287 N.E.2d 557, This principle, obligating a party to tender desired instructions or to make specific objection when the trial court has failed to properly ins......
  • State v. Bodtke, No. 84-447
    • United States
    • Supreme Court of Nebraska
    • March 8, 1985
    ...accused, that it was freely and voluntarily made and was not the result of coercion or induced by promises." See, also, Berry v. State, 153 Ind.App. 387, 393, 287 N.E.2d 557, 561 (1972) (a defendant's admissions to private citizens are admissible "so long as they are voluntarily made"); In ......
  • Boland v. Greer, No. 3-479A109
    • United States
    • Indiana Supreme Court of Indiana
    • July 13, 1981
    ...such as love and affection can only be made by the trier of facts utilizing sound and liberal discretion." 153 Ind.App. at 338, 287 N.E.2d at 557. The court's opinion that the loss of love, affection and companionship are injuries capable of ascertainment echo the sentiments of Dean Prosser......
  • State v. Williams, No. 2--572A5
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1973
    ...to damages. Hardebeck v. City of Anderson (1965), 137 Ind.App. 455, 209 N.E.2d 769. Although Berry v. State (1972 Ind.Ct.App., 1st Dist.) 287 N.E.2d 557 was a criminal appeal, its quotation from Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680 has general application and is "Counsel, kn......
  • Request a trial to view additional results

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