Evans v. State

• Decision Date: 04 June 1986
• Docket Number: No. 2-985A286,2-985A286
• Citation: 493 N.E.2d 806
• Parties: Rodney EVANS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 806

493 N.E.2d 806

Rodney EVANS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-985A286.

Court of Appeals of Indiana,

Second District.

June 4, 1986.

Aaron E. Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Marguerite M. Sweeney, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Defendant-appellant, Rodney Evans (Evans), appeals his convictions of burglary and theft contending the evidence is insufficient to support his convictions.

Our standard of review in sufficiency claims is well-established. We neither weigh the evidence nor judge the credibility of the witnesses, but look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105 (1980). We will affirm if there is substantial evidence of probative value to support the fact finder's conclusion the defendant is guilty beyond a reasonable doubt. Jones v. State (1983), Ind., 456 N.E.2d 1025.

The record reveals the victim, Frankie Nolden, left his home at 10:00 or 10:30 in the morning. When he returned at 2:00 or 2:30 in the afternoon, Nolden noticed the garage door was not fastened as he had left it and a window on the alley side of the garage had been broken. The garage was separated from the alley by a fence with a gate. Several items were missing from the garage. Broken glass pieces found outside the garage revealed a latent fingerprint which was later identified as belonging to Evans. Gary Sharp, a companion of Evans's, testified he usually plays basketball with Evans each day at one of two playing sites which are both within blocks of Nolden's garage. The missing items were never recovered or linked in any way to Evans.

Evans contends the evidence is insufficient to prove, beyond a reasonable doubt, he committed either burglary or theft. Citing Nichols v. State (1973), 157 Ind.App. 605, 301 N.E.2d 246, Evans argues the mere evidence his fingerprints were found on the outside of the burglarized garage is insufficient to identify him as the burglar and thief. In Nichols, defendant's latent fingerprints were found on a tool box inside a place of business and on broken glass near the front door. The court held the presence of the defendant's fingerprints in places which may have been accessible to him as a business invitee or as an employee was insufficient to prove the defendant was the individual who broke and entered the building with the intent to commit a felony. 157 Ind.App. at 609-10, 301 N.E.2d at 249.

Our appellate courts have held fingerprint evidence alone may be sufficient to establish the identity of the burglar. However, in the Indiana decisions affirming burglary convictions where identification of the offender is based solely on fingerprint evidence, the location of the defendant's fingerprints provided evidence from which the trier of fact could reasonably conclude the defendant was the individual who not only forcibly entered the structure, but did so with a felonious intent. ¹ Fingerprints located inside a private dwelling which the defendant did not have permission to enter, on an object not legitimately accessible to the defendant prior to the burglary, and on both sides of a piece of broken window glass when the prints were made after the glass was broken have been held to satisfactorily support this conclusion.

In Scott v. State (1982), Ind., 434 N.E.2d 86, a burglary and rape conviction was affirmed based upon identification evidence consisting of three of the defendant's latent palm and fingerprints inside the victim's home. The court held the prints, inside a dwelling the defendant did not have permission to enter, reasonably supported the convictions. 434 N.E.2d at 90.

The defendant's fingerprint in Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158, was found on a forcibly opened vending machine's coin box. The court held the defendant's fingerprint on the coin box, not accessible to him prior to the break in, was sufficient to establish, beyond a reasonable doubt, his identification as the burglar. 254 Ind. at 119, 258 N.E.2d at 159.

Similarly, in Curry v. State (1982), Ind.App., 440 N.E.2d 687, latent fingerprints, matching those of the defendant, were found on each side of a piece of broken glass still in the molding of the burglarized business's door. A fingerprint expert concluded, from the position of the fingerprints, the glass was touched after it was broken. In affirming Curry's conviction based upon that evidence, this court observed the nature of the fingerprint evidence must establish more than the mere presence of the defendant inside the burglarized premise. In addition, the evidence must reveal the fingerprints were not made in a legitimate manner so that felonious intent may be inferred. The evidence in Curry met this standard inasmuch as Curry's fingerprints were placed on the door's glass window only after it was broken, and thus the trier of fact could reasonably conclude Curry was the individual who broke the glass and entered the structure with felonious intent. 440 N.E.2d at 689-90. See also Powell v. State (1974), 160 Ind.App. 557, 312 N.E.2d 521 (defendant's latent fingerprint on a television inside burglarized residence) and Paschall v. State (1972), 152 Ind.App. 408, 283 N.E.2d 801 (defendant's fingerprint on the inside doorknob of the burglarized residence).

More recently, in Hanks v. State (1985), Ind., 484 N.E.2d 14, the defendant's fingerprints were found on a mirror which was moved to gain access to items stolen from the victim's house. The defendant, an acquaintance of the victim, had visited the victim's home ten days before the burglary, but the mirror was not present at that time. On the day of the crime, the defendant again visited the victim at his home, but the two men had a conversation on the front porch and the defendant did not enter the house. In the course of conversation, the defendant told the victim he needed money. The victim later told the defendant he had to leave to run an errand, and the defendant left. The victim in turn left the house, locking the doors behind him. When he returned later in the day, he discovered his home had been burglarized. The defendant was convicted of burglary and theft and he appealed. The supreme court affirmed the convictions, finding "[t]he jury could have concluded from [defendant's] ... print on an object which clearly was handled by the burglar in order to commit the crime, coupled with his presence and familiarity with the premises, and his knowledge of the best moment to commit the crime, that ... [defendant] was guilty as charged beyond a reasonable doubt." 484 N.E.2d at 16.

Examining the facts of the present case, the print evidence does not reasonably support the inference Evans was the individual who burglarized the garage. There is no evidence the prints were recovered from the inside of the glass. There is no evidence the prints were made after the glass was broken. There is no other evidence relating to the location of the prints which reasonably supports the conclusion Evans was the individual who did the breaking and entering with a felonious intent. Further, although the victim's garage was a private building, the window side of the garage was separated from the alley by only a fence with a gate, making it relatively accessible to passerbys.

The evidence merely establishes Evans's presence at Nolden's garage at some undetermined time. Unlike Curry, the State failed to present additional evidence with reference to the fingerprint from which the trier of fact could reasonably conclude Evans was the burglar. Although Evans's conduct of entering upon Nolden's property without right constitutes the common law tort of trespass, see Sigsbee v. Swathwood, (1981), Ind.App., 419 N.E.2d 789, 799, ² we decline to find proof beyond a reasonable doubt of the crime of burglary from the unauthorized presence of the defendant outside the victim's burglarized structure. Accordingly, the State did not present sufficient evidence from which the trier of fact could reasonably find Evans guilty of burglary beyond a reasonable doubt. So, too, under the facts of this case, the evidence is insufficient to support Evans's theft conviction.

The State was...