Brooke v. State

• Decision Date: 09 December 1987
• Docket Number: No. 75S00-8610-CR-886,75S00-8610-CR-886
• Citation: 516 N.E.2d 9
• Parties: Lonnie BROOKE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 9

516 N.E.2d 9

Lonnie BROOKE, Appellant, v. STATE of Indiana, Appellee.

No. 75S00-8610-CR-886.

Supreme Court of Indiana.

Dec. 9, 1987.

Martin R. Lucas, North Judson, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury found appellant guilty of two counts of Burglary, a Class C felony, and two Counts of Theft, a Class D felony. He received two five (5) year sentences for the Burglary convictions to run concurrently. He received two two (2) year sentences for the Theft convictions to run concurrently with his sentences for Burglary. The Count IV theft sentence was enhanced by thirty (30) years due to a finding that he was an habitual offender.

The facts are: At approximately 2:30 a.m. on December 6, 1985, two police officers noticed footprints in the newly-fallen snow which led to the Family Tree Restaurant in Knox, Indiana. They drove to the back of the restaurant and found a door standing wide open. They entered the building and found that the office had been ransacked and the cash register had been pried open.

One officer remained inside the restaurant while the other began to follow footprints which led away from the building. In the light of the full moon, the officer observed a man fleeing who was small, had light hair and was wearing a dark coat and dark pants. The officer ordered him to stop but he did not. As the officer chased him, the suspect fell in the snow and dropped a money bag, some cash and a knife.

The officer lost sight of the suspect but he and his partner followed his tracks in the snow. The tracks ended at the door of a residence and no tracks led away from the house. Police obtained a search warrant and in their search they found the following: four persons inside the home, the only one fitting the description of the fleeing suspect being appellant; a wet blue coat on the floor of a closet underneath other clothes; a fifty-dollar money wrapper from the Knox Farmer's Bank and Trust Company in a crawl space; a pair of jeans, wet from the knees down, in the dryer along with other clothes which were dry; $730.00 stuffed into a beer stein; and a poster on the wall covering a hole in which soaking wet tennis shoes which had been cut up were placed. The shoes matched the size and tread of the footprints and they bore the same logo which was imprinted in the middle of the footprints.

Appellant argues that the evidence is insufficient to support the verdict. He asserts that the evidence is only circumstantial and his conviction should be reversed.

This Court will not reweigh the evidence nor judge the credibility of witnesses. Hooks v. State (1980), 274 Ind. 176, 409 N.E.2d 618.

Appellant concedes that circumstantial evidence may be sufficient to support a conviction. Choate v. State (1984), Ind., 462 N.E.2d 1037. We find there is substantial evidence of probative value to support the verdict. Harris v. State (1981), Ind., 425 N.E.2d 112.

Appellant also argues that error occurred at trial when a police officer testified that in his opinion, the cut up tennis shoes made the tracks in the snow. In appellant's view, the officer went beyond rendering an opinion as to the similarity of the shoes to the footprints and erroneously opined that the shoes were in fact the same shoes which made the footprints.

An expert witness is one who, due to his experience or education, has knowledge of a certain subject about which persons with no particular training are incapable of forming an accurate opinion. Wade v. State (1986), Ind., 490 N.E.2d 1097. An expert witness may give his or her opinions and conclusions. The jury may weigh the testimony of the expert witness in the same manner it weighs the testimony of any other witness, taking into consideration the probability of truth of the testimony with the facts from which the witness draws his or her conclusions. Van Orden v. State (1984), Ind., 469 N.E.2d 1153, cert. denied, 471 U.S. 1104, 105 S.Ct. 2335, 85 L.Ed.2d 851.

In appellant's case, the police officer testified that he had twelve years of experience in examining and identifying footprints, which established the foundation for his expert testimony. It was therefore proper for him to give his opinion regarding the footprints. The jury was free to attach as little or as much credibility to his testimony as they felt was deserved. No error is found on this issue.

Appellant argues that the admission of certain articles of clothing into evidence was improper and prejudicial. He contends that the admission of a dark blue jacket and a nylon stocking was error because the foundation of relevancy was nonexistent.

Any fact which legitimately tends to connect a defendant with a crime is admissible when a reasonable inference may be deduced from such evidence. Harris v. State (1985), Ind., 480 N.E.2d 932.

The police officer who saw the fleeing subject described his outerwear as being a waist-length black or brown vinyl jacket. The suspect had fallen in the snow and it was logical to assume that his clothing might be wet. The jacket admitted into evidence was a waist-length dark blue vinyl quilted jacket which was wet and hidden in a closet. These facts tend to connect appellant with the crime. The relevancy foundation was established and the jacket was properly admitted.

For the same reason as above-mentioned, appellant objects to the admission of a nylon stocking. It was found in the pocket of the jeans which were wet from the knees down and inside a dryer full of dry clothes. The stocking was cut off, knotted at one end and open at the other. Appellant states in his brief that the nylon is an apparent stocking mask. The fact that the jeans were wet from the knees down is consistent with the theory that they were worn while the owner walked in the snow. These facts connect the nylon stocking and appellant to the crime. It was correctly admitted. Id.

Appellant also contends that the jeans and a pair of gloves were improperly admitted into evidence. At trial he objected to the admission of these items on the basis of their changed material condition. These exhibits were wet when they were placed in plastic bags and by the trial date they had deteriorated from mold and mildew. Because they had changed in appearance, appellant argues that the exhibits lacked relevancy because they no longer matched in...