Clayton v. State, 2--476A165

• Court: Court of Appeals of Indiana
• Citation: 170 Ind.App. 689,354 N.E.2d 338
• Docket Number: No. 2--476A165,2--476A165
• Parties: Robert CLAYTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Decision Date: 22 September 1976

Page 338

354 N.E.2d 338 170 Ind.App. 689 Robert CLAYTON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 2--476A165. Court of Appeals of Indiana, Second District. Sept. 22, 1976.
Rehearing Denied Oct. 25, 1976.

Page 339

Kenneth T. Roberts, Wilson, Coleman & Roberts, Indianapolis, for appellant.

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

SULLIVAN, Judge.

Appellant Robert Clayton (Clayton) appeals his conviction for second degree burglary ¹ of an Indianapolis gas station on October 6, 1975.

The elements of second degree burglary are: (1) breaking and (2) entering into a building other than a dwelling house or place of human habitation (3) with the intent to commit a felony therein. Cook v. State (1972) 258 Ind. 667, 284 N.E.2d 81; Carter v. State (2d Dist. 1976), Ind.App., 345 N.E.2d 847; Apple v. State (1st Dist. 1973), Ind.App., 304 N.E.2d 321.

[170 Ind.App. 690] The only issue presented to us on appeal is whether the evidence is sufficient to establish the elements of breaking and of specific intent to commit a felony. In reviewing the sufficiency of the evidence to establish these elements, we may not weigh the evidence or judge the credibility of the witnesses. Furthermore, we must consider only the evidence most favorable to the State, together with reasonable and logical inferences which may be drawn therefrom. Siblisk v. State (1975) Ind., 336 N.E.2d 650; Lisenko v. State (3d Dist. 1976), Ind.App., 345 N.E.2d 869. It was, however, incumbent upon the State at trial to present sufficient evidence to establish all elements of the crime beyond a reasonable doubt. Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Carter v. State, supra. If there is evidence of probative value to support a conviction, that judgment will be sustained. Sharp v. State (1970), 254 Ind. 435, 260 N.E.2d 593.

We find that there is no evidence of probative value to establish Clayton's specific intent to commit a felony in the gas station building and accordingly reverse.

The facts most favorable to the State reveal that Officer Daniel Wade of the Indianapolis Police Department was patrolling the district in which the gas station was located in the early morning of October 6, 1975. A parking lot enterprise was operated in conjunction with the gasoline filling station. Wade noticed that the overhead door of the building was open and that Clayton was inside using the telephone. Having worked that particular district for seven years, Officer Wade knew that the station was not normally open at that hour, so he observed Clayton for about two minutes. He then walked into the building and asked Clayton what he was doing there. Clayton replied that he was trying

Page 340

to contact the owner of the premises. The officer called John Grimme, the owner, and ascertained that Clayton did not have permission to be in the building. Grimme was asked to come to the gas station. In [170 Ind.App. 691] the meantime, Officer Wade kept Clayton at the station. When Grimme arrived, he found that a window on the building had been broken and that the gasoline price sign had been moved from a crate inside the bay of the garage to outside the building, where it was leaning against a gasoline pump. Nothing else was disturbed. Officer Wade then placed Clayton under arrest for second degree burglary. Clayton professed his innocence and resisted arrest. Testimony of Grimme and Herbert Stratton, the parking lot attendant at the gas station, indicated that both had known Clayton prior to the alleged burglary, Stratton for about three years. For about a month prior to the incident, Clayton came to the building every day for lunch and spent several hours there, walking inside the building and answering the telephone for Stratton when he was out on the lot. Stratton also testified that he had been at the lot on Sunday, October 5, the day before the incident, and that the building had been locked and secure with no windows broken.

Mere breaking and entering or unexplained presence in or about the premises is insufficient to establish intent to commit a felony. Faulkner v. State (1973), 260 Ind. 82, 292 N.E.2d 594; Nichols v. State (2d Dist. 1973), Ind.App., 301 N.E.2d 246. While an element of an offense (here, intent to commit a felony) may be proven by circumstantial evidence, evidence which establishes only a suspicion of guilt is insufficient to meet the State's burden of proof beyond a reasonable doubt. Tom v. State (1973), 261 Ind. 295, 302 N.E.2d 494; Nichols v. State, supra.

The evidence in this case establishes at best a mere suspicion of guilt. The State hypothesizes that it is reasonable to infer that Clayton intended to steal gasoline or to sell gasoline for his own profit while the business was closed. There is nothing of record to indicate what Clayton was doing in the building other than his own statement to Officer Wade that he was trying to contact Grimme.

[170 Ind.App. 692] Although the gasoline price sign had been moved, nothing else in the building was disturbed, nor does the record permit any reasonable inference that the removal of the sign was preliminary to, or part of a plan to commit any...