Cato v. State, No. 1179S310

Docket NºNo. 1179S310
Citation396 N.E.2d 119, 272 Ind. 102
Case DateNovember 08, 1979
CourtSupreme Court of Indiana

Page 119

396 N.E.2d 119
272 Ind. 102
Steven D. CATO and Onice Fields, Appellants (Defendants below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1179S310.
Supreme Court of Indiana.
Nov. 8, 1979.

[272 Ind. 103]

Page 120

Havill & Arthur, Washington, for appellants.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

HUNTER, Justice.

This case comes to us on a petition to transfer filed by the state based upon a claim of error in the decision of the Court of Appeals, First District, in regard to the issue of the sufficiency of the evidence to sustain Cato's conviction. Steven Cato and Onice Fields were both convicted by a jury of second-degree burglary. The Court of Appeals affirmed the conviction of Fields but reversed Cato's conviction because of the insufficiency of the evidence. Cato v. State, (1979) Ind.App., 389 N.E.2d 332. Their decision was based upon their determination that the evidence was insufficient to prove that Cato was involved in the burglary since there was no eyewitness identification of him and there were insufficient facts in the record from which to infer that Cato participated in the burglary.

[272 Ind. 104] We disagree, grant transfer, and affirm the convictions of both Cato and Fields.

The testimony from the record shows that on July 16, 1977, a store near Salem, Indiana, was broken into and a sizable quantity of firearms and ammunition was taken. A neighbor who lived about one-half mile from the store testified that on the afternoon of the burglary he had seen a car driving up and down the road past his house several times. He also saw a young man walking down the road and being picked up by the car on one of its passes by his house. He obtained the license number and a general description of this car and was able to identify Fields as the young man who was picked up by the car.

Two days later Fields was stopped in Georgia while driving this car and Cato was

Page 121

riding with him. A search of the trunk revealed several of the firearms taken from the store in Indiana. Cato had the key to the trunk of the car in his pocket. Neither man had a driver's license; the car was registered to Fields's father.

The Court of Appeals found that this was sufficient evidence to support the conviction of Fields but was not sufficient as to Cato. They stated:

"The record shows that, although the neighbor testified that the car contained two male occupants, he could not identify Cato as one of the occupants. The only evidence against Cato was that he was a passenger in the car when Fields was stopped in Georgia and that he had the key to the car trunk in his pocket." Cato v. State, supra at 338.

We cannot agree with the Court of Appeals' conclusions on this issue of the sufficiency of the evidence. The evidence before the jury included a pair of boots and a door panel. At the trial, the prosecution introduced as evidence part of a door panel which had been kicked out of a door during the burglary of the store. A boot print was clearly visible on the door panel. A pair of leather boots was also introduced into evidence which had been worn by Cato when he was arrested in Georgia. Since the jury had the physical objects to examine, they were able to determine for themselves how closely the boots' soles matched the prints on the door panel.

[272 Ind. 105] We note that neither the defendant nor the state provided photographs of this evidence for the Court of Appeals to consider. In fact, none of the exhibits introduced at trial was included in the transcript when it was sent to the Court of Appeals.

However, since the record clearly indicates that there was evidence before the jury that was not in the record for the court's review, it was not proper for the reviewing court to make any conclusions or assumptions about that which was not in the record. When the sufficiency of the evidence is challenged, the burden is upon the defendant to convince the reviewing court that the evidence is insufficient. The court cannot come to such a conclusion from a record that omits a portion of the evidence for the obvious reason that the omitted evidence may furnish the missing link, as it apparently did in the instant case.

It is well settled that in reviewing the sufficiency of the evidence, that evidence most favorable to the state, together with the reasonable and logical inferences to be drawn therefrom must be considered. When there is substantial evidence of probative value supporting the jury's verdict, the conviction will not be set aside. Poindexter v. State, (1978) Ind., 374 N.E.2d 509; Grigsby v. State, (1978) Ind., 371 N.E.2d 384; Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776. Therefore, we cannot uphold the Court of Appeals' decision in reversing on the issue of the insufficiency of the evidence when the record was incomplete. The sufficiency of the evidence to support the convictions of both Cato and Fields must be affirmed.

We have further examined the record and find that the Court of Appeals has correctly decided the remaining issue in the case. We therefore adopt the following from the opinion of Judge Lybrook:

"The defendants argue that certain evidence should not have been admitted at their trial for either of two reasons: 1) their initial stop by Georgia police was illegal because the police stopped them without probable cause and on mere suspicion alone; or 2) the subsequent search of their car was illegal because Fields' consent to the search was not freely and voluntarily given.

" In reviewing a trial court's determination of the validity of a search, the appellate tribunal considers the evidence favorable to [272 Ind. 106] the trial court's ruling and any uncontradicted contrary evidence, and upholds the trial court's ruling if it is supported by the evidence. Bruce v. State, (1978) Ind., 375 N.E.2d 1042.

"The record shows the following evidence concerning the stop and search of Fields' car by Georgia police. Two officers of the Newton County Sheriff's Department,

Page 122

Newton County, Georgia, received radio dispatches from department headquarters to proceed to the Pony Express Diner to investigate an out-of-state black over green Buick automobile and its occupants who, according to some unnamed source, were attempting to sell firearms from the trunk of the car. The sale of firearms without a license is a crime in Georgia.

"One officer positioned his car behind a nearby sale barn where he could observe a car which fit the description and which was parked at the side of the diner. The other officer positioned his car along the road about one-fourth mile south of the diner. The first officer observed Fields and Cato leave the diner, open the trunk of the car, look into the trunk for a short time, get into the car, and proceed north with Fields driving.

...

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13 practice notes
  • Funk v. State, No. 880S334
    • United States
    • Indiana Supreme Court of Indiana
    • November 18, 1981
    ...Battle, supra; Taylor v. State, (1980) Ind., 406 N.E.2d 247; Benton v. State, (1980) Ind., 401 N.E.2d 697; Cato v. State, (1979) Ind., 396 N.E.2d 119; Crane v. State, (1978) 269 Ind. 299, 380 N.E.2d In the case at bar police had received a tip from a citizen that appellant's car was seen in......
  • State v. Austin, No. 80-KA-2403
    • United States
    • Louisiana Supreme Court
    • May 18, 1981
    ...was at least some additional element of direct or circumstantial evidence which linked the defendant to the crime. See Cato v. State, 396 N.E.2d 119 (Ind.1979); State v. Burclaff, 137 Vt. 354, 404 A.2d 512 (1979), overruled on other grounds, (State v. Larose ) 415 A.2d 210; Maddox v. State,......
  • Covelli v. State, No. 20A03-9101-CR-25
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1991
    ...The test for involuntariness is whether the defendant's will was overborne by express or implied coercion. Cato v. State (1979), 272 Ind. 102, 396 N.E.2d 119, 123. Here, there is no indication that Flood's will was overborne; in fact, she was admittedly cooperative with the 3 To the extent ......
  • Enamorado v. State, No. 49S00-8607-CR-00694
    • United States
    • Indiana Supreme Court of Indiana
    • March 2, 1989
    ...cause may be established by verification of extrinsic evidence 1 which demonstrates the reliability of the tip. Cato v. State (1979), 272 Ind. 102, 396 N.E.2d Wheelington's information was corroborated by "Mexico Joe's" call to his pager and the arrival at the hotel room of two Hi......
  • Request a trial to view additional results
13 cases
  • Funk v. State, No. 880S334
    • United States
    • Indiana Supreme Court of Indiana
    • November 18, 1981
    ...Battle, supra; Taylor v. State, (1980) Ind., 406 N.E.2d 247; Benton v. State, (1980) Ind., 401 N.E.2d 697; Cato v. State, (1979) Ind., 396 N.E.2d 119; Crane v. State, (1978) 269 Ind. 299, 380 N.E.2d In the case at bar police had received a tip from a citizen that appellant's car was seen in......
  • State v. Austin, No. 80-KA-2403
    • United States
    • Louisiana Supreme Court
    • May 18, 1981
    ...was at least some additional element of direct or circumstantial evidence which linked the defendant to the crime. See Cato v. State, 396 N.E.2d 119 (Ind.1979); State v. Burclaff, 137 Vt. 354, 404 A.2d 512 (1979), overruled on other grounds, (State v. Larose ) 415 A.2d 210; Maddox v. State,......
  • Covelli v. State, No. 20A03-9101-CR-25
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1991
    ...The test for involuntariness is whether the defendant's will was overborne by express or implied coercion. Cato v. State (1979), 272 Ind. 102, 396 N.E.2d 119, 123. Here, there is no indication that Flood's will was overborne; in fact, she was admittedly cooperative with the 3 To the extent ......
  • Enamorado v. State, No. 49S00-8607-CR-00694
    • United States
    • Indiana Supreme Court of Indiana
    • March 2, 1989
    ...cause may be established by verification of extrinsic evidence 1 which demonstrates the reliability of the tip. Cato v. State (1979), 272 Ind. 102, 396 N.E.2d Wheelington's information was corroborated by "Mexico Joe's" call to his pager and the arrival at the hotel room of two Hi......
  • Request a trial to view additional results

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