Hauger v. State

• Decision Date: 10 June 1980
• Docket Number: No. 1278S290,1278S290
• Citation: 405 N.E.2d 526,273 Ind. 481
• Parties: Gail HAUGER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 526

405 N.E.2d 526

273 Ind. 481

Gail HAUGER, Appellant, v. STATE of Indiana, Appellee.

No. 1278S290.

Supreme Court of Indiana.

June 10, 1980.

Harriette Bailey Conn, Public Defender, David P. Freund, Kurt A. Young, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Gail Hauger was charged in Sullivan Circuit Court with burglary, Ind.Code § 35-43-2-1 (Burns 1979 Repl.), and theft, § 35-43-4-2. He was found guilty by a jury on both counts. The trial court sentenced him to twenty years on the burglary count and to four years on the theft count. Appellant raises four issues for our consideration, concerning: (1) whether the trial court erred in allowing the prosecutor to ask appellant questions on cross-examination concerning prior convictions; (2) whether the trial court erred in refusing two of appellant's tendered instructions; (3) whether the evidence is sufficient to sustain the conviction; and (4) whether the trial court erred in imposing the maximum sentence allowed by statute.

I.

Appellant first contends the trial court erroneously allowed the prosecutor to ask improper questions on cross-examination. As appellant's direct testimony was drawing to a close, his counsel asked him, in seven separate questions, whether he had ever been convicted of robbery, burglary, arson, fraud, kidnapping, murder, or treason. Appellant answered "No" to each question. On cross-examination, the prosecutor established, over objection, that appellant had been convicted of assault on a police officer, theft on two occasions, and escape. Appellant now contends these questions were improper under the rule of Ashton v. Anderson, (1971) 258 Ind. 51, 279 N.E.2d 210.

We think, however, that this evidence, like the evidence defense counsel adduced on direct examination, related to appellant's character, not his credibility. By establishing that appellant had never been convicted of the crimes mentioned, which included burglary, the crime charged in the present case, appellant was attempting to present himself as a person of good character, one unlikely to have committed the charged crime. Once the defendant placed his character in issue in this manner, the prosecutor had a right to present evidence of his bad character. In this situation, Ashton v. Anderson, supra, does not apply. There is no error here. Robertson v. State, (1974) 262 Ind. 562, 319 N.E.2d 833.

II.

Appellant next argues the trial court erroneously refused two of his tendered instructions. His tendered final instruction number three reads as follows:

"Proof by circumstantial evidence must not only coincide with the hypothesis of guilt, but must be of so conclusive a character, and point so surely and unerringly to the guilt of the accused as to exclude every hypothesis of innocence."

Tendered final instruction number four states:

"In order to sustain a conviction for burglary on circumstantial evidence alone, circumstantial evidence must be such as to preclude all other reasonable inferences of defendant's innocence and must be such that the trier of facts may reasonably and naturally infer to a moral certainty the existence of fact sought to be proven."

Appellant argues that these instructions met the three-part test of Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836, and, therefore, should have been given. The Davis case pointed out:

"In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; (and) (3) whether the substance of the tendered instruction is covered by other instructions which are given."

Id. at 478, 355 N.E.2d at 838 (citations omitted).

In the case before us, we find that the third part of this test has not been met. State's tendered final instruction number six, which was given by the trial court, also deals with the concept of circumstantial evidence. That instruction states:

"Evidence may be either direct or circumstantial. Direct evidence is evidence of a particular fact or circumstance which forms a subject of judicial investigation. Circumstantial evidence is evidence of other or collateral facts and circumstances which the particular fact, which forms the subject of judicial investigation, is or may be inferred to justify a conviction of the defendant. In any case on circumstantial evidence alone, the circumstances disclosed by the evidence must be of such character and strength as to exclude every reasonable hypothesis except that of the defendant's guilt; if the circumstances disclosed by the evidence can be explained on any reasonable theory consistent with the defendant's innocence, he is entitled to an acquittal. But circumstantial evidence alone is enough to support a verdict of guilty of any crime provided the jury believe beyond a reasonable doubt from the evidence given in the case that the accused is guilty as charged. The proof must not only coincide with the hypothesis of guilt, but it must also be inconsistent with every other rational conclusion. No greater degree of certainty is required where the evidence is circumstantial than where it is direct, for in either case, the jury must be convinced beyond a reasonable doubt of such defendant's guilt as charged."

This instruction was based on an instruction approved by this Court in Wolfe v. State, (1928) 200 Ind. 557, 159 N.E. 545. We think this instruction correctly states the law and covers substantially the same ground as the two instructions tendered by appellant. Therefore, the court did not err in refusing to give these two instructions. Davis v. State, supra.

III.

Appellant next challenges the sufficiency of the evidence. He also argues that this Court should alter its review standard, citing Jackson v. Virginia, (1979) 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781. The Jackson case dealt strictly with the standard of review to be applied by federal district courts in habeas corpus actions in reviewing whether the evidence was sufficient to support a state court conviction. We think our own standard of review fully complies with the Fourteenth Amendment and the principles discussed in Jackson v. Virginia, supra.

Our standard of review regarding sufficiency questions is the same in all cases. We will not reweigh the evidence, judge the credibility of witnesses, or resolve conflicts in the evidence. To do so would usurp the function of the jury. Rather, we will look to that evidence most favorable to the State to determine if there was substantial evidence of probative value from which the jury could have found the defendant guilty beyond a reasonable doubt. Ruetz v. State, (1978) Ind., 373 N.E.2d 152.

In the case before us, the evidence most favorable to the State reveals that appellant Gail Hauger and apparently one other person went to the home of Vernal Powers at approximately 9:00 p. m. on February 8,...