England v. State
| Decision Date | 18 October 1988 |
| Docket Number | No. 86S00-8704-CR-428,86S00-8704-CR-428 |
| Citation | 530 N.E.2d 100 |
| Parties | James C. ENGLAND, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
E. Kent Moore, Donald Clementson-Mohr, Cooke Bache Moore Laszynski & Yeager, Lafayette, for appellant.
Linley E. Pearson, Atty. Gen., Donald B. Kite, Jr., Deputy Atty. Gen., Indianapolis, for appellee.
James C. England was convicted in the Warren Circuit Court on November 14, 1986 of burglary and theft and was found to be a habitual offender. He was sentenced to a total of fifty (50) years in prison. He directly appeals raising the following issues for our review:
1. whether the trial court erred in denying England's motion for directed verdict on the burglary charge;
2. whether the trial court erred in giving the State's final instruction No. 3;
3. whether the trial court erred in admitting an exemplified copy of England's 1969 Idaho conviction into evidence.
The facts most favorable to the verdict below show that shortly before 12:00 noon on July 21, 1982, James C. England and John David Trusty drove England's Ford van to the residence of Linda and Jerry Banning in Warren County, Indiana. The Bannings were not in the practice of locking their doors. On July 21, the Bannings had closed but not locked their doors when they left for work that morning. England and Trusty exited from England's van and knocked on the front door. After they discovered that no one was home and that the door was not locked, they entered the Banning residence through the front door. England and Trusty took the Bannings' microwave oven and their color television and then left the scene. When Linda Banning returned to her residence, she discovered her television and microwave oven were missing but that there were no signs of forced entry. She telephoned the Sheriff's Department and reported that the items had been stolen. The Bannings had not consented to anyone entering their residence and removing the items.
England and Trusty drove to Vermillion, Illinois after they left the Banning residence and burglarized another home in the same way that they had burglarized the Banning residence. They were arrested by Captain Robert Cannon of the Vermillion County Sheriff's Department who pulled England and Trusty over after he received a radio dispatch of a house burglary. England's van was subsequently searched pursuant to a warrant. Inside the van the police discovered the Bannings' microwave oven and television and other items including two other televisions.
England claims the trial court erred in denying his motion for directed verdict on the burglary charge because the State failed to present any evidence to prove the material element of breaking. He contends that the prosecutor responded to his directed verdict motion by misstating the evidence and that the circumstantial evidence introduced by the State did not sustain a legal inference of a breaking.
When used as a material element of the offense of burglary, "breaking" has a well settled meaning in Indiana:
The term "breaking" as used in our statute denouncing the crime of burglary does not imply the actual fracturing of or injury to a material part of a building, such as a door or window. It includes the putting aside of any material part of the building intended as a security against invasion, such as removing a window screen, ... breaking of a canvas shutter, ... or opening a closed door.
Barrick v. State (1954), 233 Ind. 333, 339, 119 N.E.2d 550, 553-54 (citations omitted). Accord Bieghler v. State (1985), Ind., 481 N.E.2d 78, 86, cert. denied (1986), 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349; Howard v. State (1982), Ind., 433 N.E.2d 753, 756. In order to establish that a breaking has occurred the State need only introduce evidence from which the trier of fact could reasonably infer that "the slightest force [was] used to gain unauthorized entry." Trice v. State (1986), Ind., 490 N.E.2d 757, 758-59. The opening of an unlocked door or window is sufficient to establish a breaking. Trice, 490 N.E.2d at 759.
At trial, the Bannings testified that when they discovered their residence had been broken into, they surveyed the area and found that their microwave oven and television had been stolen. Linda Banning testified that the door had been closed, but not locked, and that there were no signs of forced entry. The Bannings were not in the practice of locking their doors but had not given anyone permission to enter their home and remove the microwave and television. The stolen items were subsequently found in England's van after England and his accomplice were arrested in Illinois for the commission of another house burglary. Accomplice Trusty testified that he and England drove to the Banning residence in England's van. He stated that he and England drove up, got out and knocked. When they realized nobody was home, they went in. Once inside the Banning residence, they took a television and a microwave. Trusty also testified that he and England had committed other burglaries and that their method had been the same.
This evidence was clearly sufficient to prove the material element of breaking in that it established that England and Trusty opened the Bannings' door and entered their residence. While neither Linda Banning nor Trusty specifically testified that England went in the house through the door, the testimony compels the inference that entry was gained in this manner.
England claims the trial court erred in giving the State's final instruction No. 3, which reads:
A conviction may be sustained primarily upon the testimony of an admitted accomplice. The testimony of accomplices do not lack probative value as a matter of law, and there [sic] credability [sic] and weight to be given to their testimony are questions properly left to the jury.
England argues that while an accomplice instruction is not improper per se, the instruction given here was improper because it singled out Trusty's testimony for special consideration by telling the jurors that they may convict the defendant on the accomplice's testimony.
This issue has been waived as a result of England's failure to make a timely objection to the State's final instruction. A defendant must lodge a timely objection to the giving of an instruction in order to preserve error for appeal. Smith v. State (1984), Ind., 459 N.E.2d 355, 357; Williams v. State (1979), 271 Ind. 476, 481, 393 N.E.2d 183, 187. England's trial counsel did not object to this instruction until after the trial court had finished instructing the jury and the jury had begun deliberating.
Moreover, had this issue been properly preserved for review, this court would find no...
To continue reading
Request your trial
-
Bellmore v. State
...... In order to establish that a breaking has occurred, the State need only introduce evidence from which the trier of fact could reasonably infer that the slightest force was used to gain unauthorized . Page 125 . entry. England v. State (1988), Ind., 530 N.E.2d 100; Trice v. State (1986), Ind., 490 N.E.2d 757. . As noted previously, the events of the crime began on the exterior back porch of Donna Denney's home. The doorway to the porch consisted of a primary inside wooden door and an outside metal ......
-
Smith v. Farley, 92-1299
......state sentence that had been enhanced based on an allegedly invalid prior state conviction. We affirm and hold that a federal court should not entertain a ... Furthermore, since the Indiana sentencing courts apply the presumptively void scope of review to prior state convictions, see England v. State, 530 N.E.2d 100, 103 (Ind.1988), Smith did not have the opportunity to litigate his claims, contesting the validity of the '74 conviction, ......
-
Malone v. State
...... The record reveals that Malone did not object to this instruction at trial. Typically, failure to object to an instruction in a timely fashion results in waiving the issue on appeal. England v. State (1988), Ind., 530 N.E.2d 100, 102. However, Malone now contends that the instruction constituted fundamental error. Fundamental error is error so blatant and prejudicial that, if not corrected, it would deny the defendant due process. Faulisi v. State (1992), Ind.App., 602 N.E.2d 1032, ......
-
McGowan v. State
....... Initially, we note that McGowan did not object to the instruction at trial. Generally, the failure to object to an instruction at trial waives the issue for appellate review. England v. State, 530 N.E.2d 100, 102 (Ind.1988). However, the issue may be addressed if the error asserted is fundamental. James v. State, 613 N.E.2d 15, 25 (Ind.1993). Fundamental error is error that is a "substantial blatant violation of basic principles rendering the trial unfair to the defendant." ......