Holtel v. State, No. 572A230

• Docket Nº: No. 572A230
• Citation: 155 Ind.App. 1, 290 N.E.2d 775
• Case Date: December 27, 1972
• Court: Court of Appeals of Indiana

Page 775

290 N.E.2d 775 155 Ind.App. 1 Steven HOLTEL, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 572A230. Court of Appeals of Indiana. First District. Dec. 27, 1972.

[155 Ind.App. 2]

Page 776

Stephen C. Moberly, Shelbyville, Glass & Moberly, Shelbyville, of counsel, for appellant.

Theodore L. Sendak, Atty. Gen., Frank Gleaves, III, Deputy Atty. Gen., for appellee.

LYBROOK, Judge.

Defendant-appellant (Holtel) was charged by affidavit with second degree burglary and theft, convicted by jury of both counts, and sentenced to the Indiana Youth [155 Ind.App. 3] Center for a period of two to five years on Count I and for a period of one to five years on Count II, said sentences to be surved concurrently.

The issues presented here are: (1) Was there sufficient evidence to support the conviction? (2) Did the trial judge err in questioning a witness? (3) Did the trial court err in refusing to suppress evidence obtained during an unlawful search? (4) Did the trial court err in allowing a witness to testify who was not named in the State's witness list?

Concerning Holtel's first contention, this court must proceed on the basis of the well established principle that:

'This Court will not weigh the evidence or resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the trial court or jury. (Citations omitted.) A conviction must be affirmed, if having applied the rule, there is evidence of probative value from which the trier of the facts could reasonably infer that the appellant was guilty beyond a reasonable doubt.' (Citations omitted.) Buise v. State (1972), Ind., 281 N.E.2d 93.

This basic principle must, however, be applied in conjunction with another standard set by the Supreme Court in Liston v. State (1969), 252 Ind. 502, 250 N.W.2d 739:

'We recognize the rule that we may not weigh the evidence and may only review that evidence most favorable to the state to determine, on a sufficiency of the evidence question, whether we shall affirm or reverse the judgment of the trial court. Such appellate duty, of which we take cognizance, in far too many cases requires that we probe and sift the evidence. Thus, if as a result of our probing and sifting the evidence most favorable to the state, we determine that the residue of facts is so devoid of evidence of probative value and reasonable inferences adduceable therefrom, as to preclude guilt beyond a reasonable doubt, we should so declare. A failure to do so is a rejection of our duty as an appellate tribunal and tantamount to the enunciation of a rule that any evidence no matter how infinitesimal or inferences drawn therefrom, whether based on speculation or conjecture, would be sufficient[155 Ind.App. 4] to establish guilt beyond a reasonable doubt. This we are not inclined to do for to assume such a judicial posture, neglecting our appellate responsibility, would reduce the appellate process to an exercise in impotent and meaningless futility. See Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874, 235 N.E.2d 62; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641.'

In another case similar to the one at bar, the Supreme Court, in reversing a Burglary conviction, held:

'When the evidence before the jury is entirely circumstantial, as in the case before

Page 777

us, certain rules have been established for the jury's guidance. It is not enough that the circumstances be consistent with the hypotheses of guilt. They must be of so conclusive a character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypotheses of his innocence. It must be such that the trier of the facts may reasonably and naturally infer to a moral certainty the existence of the fact sought to be proved.' (Citations omitted.)

'It is true that the above rules are for the guidance of trial courts and juries, (Citations omitted) and it is for them to weigh the evidence and determine the guilt of the accused. But there is always the question for the reviewing court of whether or not there was evidence of circumstances from which the jury under the above rules reasonably might have drawn an inference of guilt.' McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671.

In the case at bar, Holtel was convicted of second degree burglary and theft. The only evidence offered to link Holtel to these charges was the testimony of Cathy Phillips. After proof of a burglary, Miss Phillips testified that that night she arrived at her apartment at 12:15 A.M. and found Holtel, her roommate Beth Lewis and Bill Stiles in the apartment. At approximately 12:45 Miss Phillips went to take a bath, and while she was so engaged, the boys left to go out 'riding around'. Miss Phillips further testified that after her bath, she, together with Holtel, Stiles and Beth Lewis carried the furniture in question into the apartment. There is no other evidence linking Holtel to the burglary or theft.

[155 Ind.App. 5] This court is well aware of the oft pronounced maxims that unexplained, exclusive possession of recently stolen goods will support an inference of guilt of the theft and that if the goods were stolen in a recent burglary, it will support an inference of guilt of the burglary. Hart v. State (1972), Ind.App., 285 N.E.2d 676.

In the case at bar, there was no evidence to connect Holtel with the stolen goods other than the testimony that he helped three other people carry them up the stairs, into an apartment in which he didn't live, and one of the occupants of which has testified that she 'couldn't stand him'. Merely helping someone carry furniture into a residence in which he has no possessory interest, fails to show the requisite 'obtaining or exerting control' for the theft statute, I.C.1971, 35--17--5--3; Ind.Ann.Stat. § 10--3030 (Burns' 1956), or the possession necessary for the above presumption. In Williams v. State (1969), 253 Ind. 316, 253...