Hinkle v. State, 2-177A10

• Decision Date: 10 June 1980
• Docket Number: No. 2-177A10,2-177A10
• Citation: 405 N.E.2d 556
• Parties: Jerry L. HINKLE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 556

405 N.E.2d 556

Jerry L. HINKLE, Appellant, v. STATE of Indiana, Appellee.

No. 2-177A10.

Court of Appeals of Indiana, Second District.

June 10, 1980.

Harriette Bailey Conn, Public Defender, John W. Bean, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Jerry Hinkle was convicted by jury of two counts of First Degree Burglary. He raises numerous issues for our review. Our disposition, however, requires treatment of only the following:

1. Did the trial court err in admitting evidence concerning statements by an informant who was deceased at the time of trial?

2. Did the trial court err in admitting evidence of a separate and distinct criminal act?

3. Was there sufficient evidence to support the verdicts?

The evidence adduced at trial was as follows. The Holloway residence was burglarized on January 26, 1973. Entry was gained through the patio door in the family room; the glass door had been shattered. Two television sets, a camera, a clock radio and three guns were stolen. The Bedford house was burglarized December 22, 1973. The front door jam was broken and a watch, a jewelry case, a small amount of cash and two guns were missing. Undercover agent Raymond Lewis testified that he negotiated the purchase of two guns from Jerry Hinkle. During the transaction, Hinkle purportedly stated that he had "been getting into places" for some time ¹ and that the guns were "hot". Further, Hinkle allegedly told Lewis that "my wife bought me the twenty-two caliber rifle and I got the rest of them myself." However, Hinkle never specifically explained how he obtained the guns, i. e., whether by theft, purchase, etc. Clearly, evidence was presented showing that Hinkle was in possession of some stolen firearms. Two guns which were obtained by the police in their search of Hinkle's home were identified at trial by Merrill Holloway as his guns. The State did not show that Hinkle was in possession of any of the Bedford's property. ²

When Hinkle took the stand in his own defense, he claimed that he had, with cash, purchased the guns one at a time "at bars and on the street". He could not recall how much he paid for any of the guns or from whom they were purchased, and he explained that he sold them to raise money for his overdue house payments. In addition, he maintained that he told Lewis the guns were stolen for the sole purpose of expediting the sale.

We reverse.

I.

The trial court admitted, over Hinkle's objection, evidence concerning statements purportedly made by an informant which linked Hinkle to other break-ins. The informant was deceased at the time of trial. The statements were introduced to establish probable cause for a search. Our review of the record discloses that probable cause was not in issue. Hinkle made no motion to suppress evidence derived from the search; rather, he objected to the admission of the informant's statements in the presence of the jury on the basis of irrelevancy.

The questionable testimony was elicited from Police Detective Larry Musall. He testified as follows.

"Q. Alright, Larry, once again would you tell us please, this is for the purposes of the probable cause for the search warrant, what it was the informant recited to you? First of all I think you should probably give his name so there is no question.

A. His name was Robert Crooks.

Q. Alright, and please now recite what that information was?

A. Okay, the information in establishing his reliability was, he advised me of several breakins that occurred and in reciting these breakins to me he advised me of the information that was related to him from Jerry Hinkle of how he actually entered the house on each breakin. I called Mr. Holloway, I asked Mr. Holloway how his house was entered, and the information that Mr. Holloway told me was exactly what the informant told me.

Q. Did the informant tell you where he acquired this information?

A. The informant said that Jerry Hinkle had asked him to go with him on several breakins with him."

And on cross-examination, Musall revealed:

"Q. What is that information, besides what you have already told us about, how did he say that he learned of this information from Jerry Hinkle?

A. First-hand from Jerry Hinkle that Hinkle was bragging about the places that he had broken into."

In the absence of any issue concerning probable cause for the search, the admission of such hearsay statements was erroneous and prejudicial.

II.

The trial court, over Hinkle's objection, admitted testimony from a victim of a third burglary for which Hinkle was not charged. ³ The trial court apparently admitted this evidence pursuant to the rule set forth in Watts v. State (1950) 229 Ind. 80, 95 N.E.2d 570, wherein it was held that evidence of separate and distinct crimes is admissible to show intent, motive, purpose, identification or a common scheme or plan.

Hinkle was charged with burglaries which occurred on January 26, 1973 (the Holloway burglary) and December 22, 1973 (the Bedford burglary). The burglary with which Hinkle was not charged, but of which evidence was introduced and admitted, the Gordon burglary, occurred on January 1, 1972. None of the prerequisites for admission of evidence of prior criminal acts, as set forth in Watts v. State, supra, are present here. The non-charged burglary was remote in time. There was no direct probative evidence which conclusively placed Hinkle at the scene of any of the burglaries. Although all three offenses occurred in the same county, the locations were nevertheless several miles apart.

It may be safely stated that neither "intent", "motive", nor "purpose" are at issue in the case before us. Furthermore, neither the mode of entry nor nature of the items taken in the three burglaries was indicative of any common scheme, plan, method of operation or identity. ⁴ See Brooks v. State (1st Dist. 1973) 156 Ind.App. 414, 296 N.E.2d 894. See Loveless v. State (1960) 240 Ind. 534, 166 N.E.2d 864; O'Conner v. State (4th Dist. 1978) Ind.App., 382 N.E.2d 994, 1002; Cf. Bruce v. State (1978) Ind., 375 N.E.2d 1042, 1077-78, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662.

The trial court committed error in the admission of such evidence.

III.

Where a claim of insufficiency of the evidence is raised, this Court on review will look only to the evidence most favorable to the State along with all reasonable inferences therefrom. Because of our instructions to the trial court on remand, we treat the two charged burglaries separately.

With respect to the Bedford burglary, there were no witnesses to the burglary and no identifiable fingerprints were found at the scene. While Mr. Bedford identified one of the exhibits at trial as his gun, the State did not explain where or from whom that gun was recovered. Further, the record is devoid of any other evidence or inferences linking Hinkle to that crime. On the basis of such a record, Hinkle's conviction for Count II cannot be sustained and must be discharged. See generally Pettigrew v. State (2d Dist. 1975) 165 Ind.App. 390, 332 N.E.2d 795.

There is some evidence of Hinkle's complicity in the Holloway burglary. Whether, however, there is...