Carter v. State

• Decision Date: 20 April 1976
• Docket Number: No. 3--975A200,3--975A200
• Citation: 345 N.E.2d 847
• Parties: Garrett CARTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 847

345 N.E.2d 847

Garrett CARTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3--975A200.

Court of Appeals of Indiana, Third District.

April 20, 1976.

Rehearing Denied May 26, 1976.

Opinion Superseded, see 356 N.E.2d 220.

Jay A. Charon, Spangler, Jennings, Spangler & Dougherty, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Garrett Carter was charged with second degree burglary ¹ and carrying a pistol without a permit. ² After a trial to the court, he was convicted on both counts. On appeal, Carter challenges only the sufficiency of the evidence to support the burglary conviction. We reverse.

The State must prove the elements of second degree burglary beyond a reasonable doubt. These elements are (1) breaking (2) and entering (3) into a building to structure other than a dwelling house or place of human habitation (4) with intent to commit a felony therein. Cook v. State (1972), 258 Ind. 667, 284 N.E.2d 81; Reas v. State (1975), Ind.App., 323 N.E.2d 274; Apple v. State (1973), Ind.App., 304 N.E.2d 321.

The evidence and inferences most favorable to the State show that, early on the morning of August 26, 1972, Officer Fleming arrived at Mr. Miles Beauty Salon in response to a call that a burglary was in progress. He saw a broken window on the east side of the building, looked through the window, and saw a person in the building whom he identified as the defendant Carter. Officer Davis arrived, looked through the broken window, and saw what he thought was a head moving inside the building. Davis ran to the back of the building, and saw Carter open the rear door of the shop and step out into the alley. Davis pointed a shotgun at Carter and told him to halt. Carter halted. When the officers searched Carter, they found a revolver and a holster in his belt. Mr. Miles, the owner of the shop, testified that, when he left the shop the previous day, the window was not broken and all the doors were locked.

There is ample evidence in the record to show that Carter broke and entered into Mr. Miles Beauty Salon without the permission of the owner. The fact that Carter was in the building demonstrates entry, and his logical entry through the broken window shows breaking. See Beard v. State (1975), Ind.App., 327 N.E.2d 629. There is, however, a lack of sufficient evidence to allow the inference that Carter intended to commit a felony when he entered. ³ There is no evidence that any property of Miles Beauty Salon was missing or disturbed in any way. There is no evidence that Carter had burglary tools or tools that could be used in a burglary attempt. There is simply a lack of any indication of what Carter was doing in the building or what he proposed to do. When the evidence fails to establish any facts which would allow a reasonable inference of the intruder's intent once in the building, it is insufficient to sustain a conviction of burglary. ⁴ Faulkner v. State (1973), 260 Ind. 82, 292 N.E.2d 594; Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795; Goodloe v. State (1967), 248 Ind. 411, 229 N.E.2d 626; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6.

The presence of a revolver cannot be deemed sufficient to meet the requirement of substantial proof that Carter had broken into the building with the intention to commit a felony. The Indiana Supreme Court, in Faulkner v. State, supra, 260 Ind. at 86--87, 292 N.E.2d at 596, stated:

'Similarly the presence of a pistol or the fact that appellant was attempting to start a body shop such as Rice's cannot be deemed sufficient to meet the requirement of substantial proof that appellant had broken into the building with intention to steal certain items located there. Evidence such as this may provide suspicion of his intention or an opportunity or possible motive for a theft but mere suspicions or opportunities are not sufficient to satisfy our requirement of substantial proof on each element of the charge. Crawford v. State, supra.

'. . . Circumstances such as flight, the carrying of pistols or possible motives do not sufficiently demonstrate the intention to commit the felony of theft in the Rice building. They are ambiguous as to this element or at most raise suspicions of appellant's intentions. They do not, however, meet the required level of proof.'

Since the evidence is insufficient to establish the necessary element of intent to commit a felony, Carter's conviction of second degree burglary must be reversed.

HOFFMAN, J., concurs.

GARRARD, J., concurs in result.

1 IC 1971, 35--13--4--4(b) (Burns Code Ed.).

2 Ch. 63, § 3, (1935) Ind.Acts 159 (repealed 1973). Present law is codified at IC 1971, 35--23--4.1--3 (Burns Code Ed.).

3 There must be evidence other than that concerning the breaking and entering to show intent. Faulkner v. State (1973), 260 Ind. 82, 292 N.E.2d 594; Kondrup v. State (1968), 250 Ind. 320, 235 N.E.2d 703. Carter did not attempt to flee when the police officer told him to halt, but, even if he had attempted to flee, flight under the circumstances would have been an ambiguous gesture, which could just as well indicate fear of being apprehended for trespassing. Faulkner v. State, supra.

4 In all cases in which the Indiana appellate courts have found sufficient circumstantial evidence to infer the intruder's intent to commit a felony, there was some...