O'Hara v. State

• Decision Date: 09 July 1975
• Docket Number: No. 2--374A74,2--374A74
• Citation: O'Hara v. State, 330 N.E.2d 396, 165 Ind.App. 11 (Ind. App. 1975)
• Parties: William O'HARA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 396

330 N.E.2d 396

165 Ind.App. 11

William O'HARA, Defendant-Appellant, v.STATE of Indiana, Plaintiff-Appellee.

No. 2--374A74.

Court of Appeals of Indiana, Second District.

July 9, 1975.

Stephen M. Sellmer, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

Before SULLIVAN, P.J., and BUCHANAN and WHITE, JJ.

PER CURIAM.

Defendant-appellant O'Hara appeals his conviction of Second Degree Burglary, ¹ claiming that it was not supported by sufficient evidence and that certain evidence was improperly admitted.

We affirm.

The constraints upon this Court's review of the sufficiency of evidence are summarized by the following passage from Napier v. State (1973), Ind., 298 N.E.2d 427, 427--428:

'When the sufficiency of evidence is raised on appeal, this Court will neither weigh the evidence nor resolve questions concerning the credibility of witnesses.Only that evidence most favorable to the State will be considered together with all reasonable inferences to be drawn therefrom, and if, from that viewpoint, there is substantial evidence of probative value to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed.'

The facts most favorable to the State are as follows:

The Allright parking garage was routinely checked at 8:00 P.M. on March 9, 1973 by Officer Hunt of the Indianapolis Police Department and he found the lights on and the vending machines intact.Officer Hunt returned to the garage at 9:25 P.M. and observed that the front door had been forced open.The lights were off and one or more of the vending machines had been broken into.Several people reported that they had seen O'Hara inside the garage after it had closed and one witness stated that he had observed O'Hara exiting from the parking garage through a fire exit.O'Hara was arrested at the scene shortly thereafter, at which time he was searched and found to be in possession of a pair of wirecutters, a screwdriver, and $14.15 in small change.

O'Hara was convicted of Second Degree Burglary, the elements of which are: '(1) breaking (2) and entering (3) into a building other than a dwelling house or place of human habitation (4) with the intent to commit a felony therein.'Apple v. State (1973), Ind.App., 304 N.E.2d 321, 326.These elements may be proven by circumstantial evidence alone.Wright v. State (1974), Ind.App., 316 N.E.2d 385.

O'Hara attacks his conviction on the ground that it was not supported by sufficient evidence.The evidence outlined above was, however, sufficient upon which the trial court could have found that each material element was established beyond a reasonable doubt.O'Hara was seen inside the parking garage after it had closed and the front door had been forced open.These facts and reasonable inferences therefrom support a finding that O'Hara broke and entered the parking garage.Similarly, the requisite intent to commit a felony therein may be inferred from the facts that the vending machines had been broken into, that O'Hara had wirecutters and a screwdriver in his possession shortly thereafter, and that O'Hara was in possession of $14.15 in small change, of the type that would be found in vending machines.Felonious intent at the time of entry may be inferred from criminal acts committed after entry.Farno v. State (1974), Ind.App., 308 N.E.2d 724.

O'Hara additionally contends that his arrest was improper and that the evidence obtained as a result of the search incident to that arrest was therefore improperly allowed into evidence.O'Hara argues that the arrest was improper in that the arresting officer did not have an arrest warrant and did not have probable cause to make the arrest.The State acknowledges that Officer Hunt did not have an arrest warrant, but contends that he did have probable cause to make the arrest.

A police officer is authorized to make a warrantless arrest provided that he have probable cause to believe that a felony has been committed and that the person to be arrested has committed it.Capps v. State(1967), 248 Ind. 472, 229 N.E.2d 794;Thurman v. State (1974), Ind.App., 319 N.E.2d 151.The frequently cited test for determining whether an officer had probable cause to make an arrest was stated in Smith v. State(1971), 256 Ind. 603, 607, 271 N.E.2d 133, 136, as follows:

'The test for probable cause to make an arrest...