Hahn v. State
Decision Date | 08 February 1989 |
Docket Number | No. 18A02-8801-CR-26,18A02-8801-CR-26 |
Parties | Kevin S. HAHN, Appellant (Defendant Below), v. STATE of Indiana, Appellee. |
Court | Indiana Appellate Court |
Geoffrey A. Rivers, Muncie, for appellant.
Linley E. Pearson, Atty. Gen., Lisa Anne McCoy, Deputy Atty. Gen., Indianapolis, for appellee.
Kevin S. Hahn appeals his conviction for Burglary, a Class C felony. I.C. 35-43-2-1 (Burns Code Ed.Repl.1985). Because we reverse and remand for a new trial, we discuss only whether either or both of two instructions given were so misleading, in light of the evidence, as to have influenced the verdict. Stated conversely, unless we can say as a matter of law that the giving of both instructions was harmless beyond a reasonable doubt, we must reverse. See Carter v. State (1977) 266 Ind. 196, 361 N.E.2d 1208, cert. denied 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142 (1977); Brewer v. State (1969) 253 Ind. 154, 252 N.E.2d 429. The Brewer decision cited Emge v. Sevedge (1948) 118 Ind.App. 277, 76 N.E.2d 687, trans. denied, a civil case, with approval. Emge held that prejudice is presumed from an erroneous instruction and reversal will lie unless "the verdict under proper instructions could not have been different." 118 Ind.App. at 285, 76 N.E.2d 687.
Hahn, age 18, went AWOL from the Army during basic training at Fort Sill, Oklahoma. He hitchhiked to Indianapolis to see his girlfriend. She would not allow him to stay with her but drove him to Muncie where he had formerly lived. On the night of March 26, 1987, after playing pool with a juvenile acquaintance, he entered Bob's Furniture Store through a broken second-story window after climbing to that level on an outside pole. The juvenile also entered the premises in the same manner but some moments later. Hahn testified that he merely wanted a place to stay the night, had been turned down by his mother, and was afraid to seek lodging from other family or friends because the Army would be looking for him. As a result of a triggered burglar alarm, police arrived.
Without question, Hahn broke and entered the premises. The only other evidence, however, which could reasonably bear upon intent was that when the officers arrived, a hole, perhaps one foot wide, was observed in the ceiling between the first and second floors and a bicycle had been moved on the second floor. No tools or implements likely to make such a hole were found, and Hahn and his juvenile accomplice (who had no charges pending against him) both testified that Hahn's foot went through the floor inadvertently and not intentionally. The bicycle was too large to be removed from the premises either through the hole or through the broken window.
There was no additional suspicious conduct by Hahn, other than when the officers arrived they found Hahn hidden under some mattresses. Although such conduct may not technically constitute flight, it is sufficiently evasive as to be considered as a factor in resolution of the question of intent.
Over defendant's objection, the court gave Final Instructions 11 and 12 which read respectively as follows:
Three very recent cases from our Supreme Court have held that time, force and manner of entry, even when coupled with flight is not sufficient to demonstrate a specific felonious intent, i.e., intent to commit theft, as here required, even though such evidence might demonstrate a general felonious intent.
In Justice v. State (1988) Ind., 530 N.E.2d 295, 297, the Court held:
1 (Emphasis supplied.)
In Gebhart v. State (1988) Ind., 531 N.E.2d 211, 212, the court held:
Earlier, in Gilliam v. State (1987) Ind., 508 N.E.2d 1270, 1271, trans. denied, the Court stated:
Accordingly, to the extent that prior cases, beginning with Lisenko v. State, supra, 355 N.E.2d 841, have held that intent to commit theft may be inferred by time and manner of entry, even when coupled with flight, they have been impliedly overruled. 3
Cases which are to be distinguished and which involve the "strongly corroborative" additional evidence required by Justice v. State, supra, 530 N.E.2d 295, include: Stanley v. State (1988) Ind., 531 N.E.2d 484 ( ); Gee v. State (1988) Ind., 526 N.E.2d 1152 (residence "partially ransacked"); Finley v. State (1988) Ind., 525 N.E.2d 608 ( ); Whicker v. State (1987) Ind., 511 N.E.2d 1062 ( ); Slaton v. State, supra, 510 N.E.2d 1343 ( ); Timmons v. State, supra, 500 N.E.2d 1212 ( ); Pratt v. State (1986) Ind., 492 N.E.2d 300 ( ); Dziepak v. State (1985) Ind., 483 N.E.2d 449 ( ); Williams v. State (1985) Ind., 481 N.E.2d 1319 (...
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