Combs v. State, 1171S340
| Decision Date | 03 May 1973 |
| Docket Number | No. 1171S340,1171S340 |
| Citation | 260 Ind. 294,295 N.E.2d 366 |
| Parties | Michael Ray COMBS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.
This is an appeal from a conviction of second degree burglary after a trial by jury in the Vanderburgh Circuit Court, the Honorable William H. Miller presiding. Appellant bases his appeal on two grounds: (1) The evidence was insufficient because the State failed to prove the specific ownership of any articles taken in the burglary, and (2) the verdict is contrary to law since the theory upon which the State proceeded in this case was that the appellant acted as an accessory to the burglary (I.C. 1971, 35--1--29--1, being Burns § 9--102) and the principal to the crime entered a plea only to the lesser offense of malicious trespass.
The evidence of the State in this case included the testimony of Charles Gubler, the President of the Garvin Park Little League in Evansville. He testified that on the 16th of May, he and a group of volunteers had spent the day cleaning up the ball field at Garvin Park in preparation for the Little League season. They had also painted and cleaned a building located at the park which served as a combination storage, concession and office structure. The building was described as a one story cinder block structure with a metal door on one end and several 'window' type arrangements which could be opened up in order to sell refreshments from the concession part of the building. A wooden waisthigh fence surrounded the flat roof of the building and a covering roof was constructed above that. Metal fencing had been attached between this second roof and teh primary roof in order to close in this otherwise open area on top of the structure. This platform was used as a kind of an announcement area and score board. The only means of access to it was a trap door which led from the storage area below to the roof area. The inside of the structure itself was divided into three rooms: a concession room, a storage room and a small office room. There was an air conditioner set in a hole in the wall between the supply and office rooms.
Mr. Gubler testified that on May 16th he was the last to leave the Little League building at about 5:00 or 5:15 p.m. When he left he locked the door to the building and made sure the concession windows were bolted down. He stated that the interior of the building had been cleaned and was in order when he left.
At about 9:45 p.m. that same night Mr. Gubler returned to the Little League park to pick up a transistor radio he left behind in the office section of the building. As he approached the door he heard what he described as 'ransacking noises' from inside. He also noticed that two of the three floodlights were out, but the padlock on the door was still locked and intact. Gubler unlocked the padlock and pushed the door open. Inside the saw the figure of one person crawl through the hole in the office wall in which the air conditioner was usually placed. The air conditioner had been removed from the hole and was now resting on the floor of the office. Gubler stated that he chased after this person but he was not able to stop him or identify him. The person crawled through to the supply room and Gubler ran outside, locking the door again with the padlock.
Once outside Gubler climbed up a row of bleachers which was set up next to the building. From the top of the bleachers he could look over on to the top of the building and as he did so he saw two people lying on the roof next to the trap door that lead down into the supply room. Gubler had a flashlight with him and he shined it on the two figures. He testified that one of the persons looked up at him and he identified that person as being the appellant.
At about this time three other persons were crossing the ballfield as a short cut to their homes on the other side. Gubler called to them and they climbed up the bleachers to watch the two men on the roof while he went to call the police. One of these three testified at the trial and identified appellant as being one of the men on the roof.
Before climbing down from the bleachers Gubler called to the two men and told them that if they went down into the building again and cleaned up the mess they had made be would not call the police. The two then opened the trap door and went down into the building.
Shortly thereafter Officers Redman and Koewler of the Evansville Police Department arrived at the field. By this time Gubler had told the men inside the building that he was not going to let them out, and they began to kick open one of the widows. Officer Redman went around to the window side of the building while Officer Koewler and Mr. Gubler opened the front door. As they did so appellant kicked out the side window and attempted to flee. After a struggle he was subdued by Officer Redman. The other intruder was apprehended by Gubler and Koewler in the building. A search of appellant by Officer Redman produced a prior of wire cutters, a knife and a piece of lead pipe with tape wrapped around one end.
Gubler further testified that he inspected the building after the incident and that, in addition to the removed air conditioner, he found the drawers on the desk had all been pulled out and between five and ten dollars in change was missing from a drawer in a popcorn machine. A sandwich, which had been in the refrigerator, was found half eaten on the desk and a drink had been taken from a soda machine. Gubler also stated that the fencing which ran around the top of the building had been cut and there were apparent pry marks on the trap door.
Mr. Guy Andress testified that he was Commissioner of the Evansville Little League Corporation and that the building at Garvin Park was the property of that corporation.
Appellant's first contention is that his conviction should be reversed because the State failed to prove the ownership of any articles missing from the building. At the outset we must repeat that when a conviction is appealed on the grounds of insufficiency of the evidence it is not the function of this Court to weigh the evidence nor resolve questions of credibility of witnesses, but to look to that evidence and the reasonable inferences therefrom which support the verdict of the jury. Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558.
The burglary statute and affidavit with which we are concerned here requires the State to establish two elements: (1), a breaking and entering into a structure other than a dwelling, (2) with the intent to commit the felony of theft therein. I.C. 1971, 35--13--4--4, being Burns § 10--701, and I.C. 1971, 35--17--5--3, being Burns § 10--3030. The evidence concerning the cut wiring, the pry marks on the trap door and the 'ransacking noises' from within the Little League building clearly establishes a breaking and entering. Moreover this Court has consistently held that where there are facts which allow reasonable inferences as to the intruder's specific intention once in the building the second element of this offense will be sufficiently established. Faulkner v. State (1973), Ind., 292 N.E.2d 594; Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498. There was clear evidence presented here that an air conditioner had been removed from the wall, that the drawers of desk had been searched, that a money drawer and a refreshment machine had been opened and an indetermined amount of change taken. We believe these facts lead to the reasonable inference that the intruder's intention in breaking into the building was a theft of its contents.
Appellant asserts that the State's case failed to sufficiently establish the ownership of any property missing...
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