Howard v. State
| Decision Date | 06 April 1982 |
| Docket Number | No. 1280S456,1280S456 |
| Citation | 433 N.E.2d 753 |
| Parties | Herbert Brooks HOWARD, III, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Wendall W. Mayer, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.
Herbert Brooks Howard, III, defendant-appellant, was charged with and convicted of burglary, Ind.Code § 35-43-2-1 (Burns 1979 Repl.), and theft, Ind.Code § 35-43-4-2 (Burns 1979 Repl.). The trial court sentenced Howard to twenty years' imprisonment on the burglary charge and two years' imprisonment on the theft charge, the sentences to be served concurrently with each other and with a sentence he was already serving in Kentucky.
This appeal follows denial of a motion to correct errors and raises three issues:
(1) Whether the defendant was denied his right to a speedy trial under the Interstate Agreement on Detainers, or under the Indiana and United States Constitutions.
(2) Whether the evidence was insufficient to prove burglary.
(3) Whether the evidence was insufficient to prove theft.
On January 25, 1978, several items were stolen from the apartment of Leatrice Shepard. The defendant was arrested for the crime that day and was originally charged in Marion Municipal Court. In May, 1978, that court dismissed the charges and directed the prosecutor to refile them in Marion Criminal Court. The charges were then filed in Marion Criminal Court on June 7, 1979. In the meantime the defendant had begun serving a prison sentence in Kentucky.
The defendant claims that he was denied his right to a speedy trial as it is provided for in the Interstate Agreement on Detainers, Ind.Code § 35-2.1-2-4 (Burns 1979 Repl., repealed effective September 1, 1982) and as guaranteed by the Sixth Amendment to the United States Constitution and by Art. 1, § 12 of the Constitution of Indiana.
Concerning the claim under the Interstate Agreement, the defendant in his brief asserts that he initiated a request for disposition of the Indiana charge on August 7, 1979, triggering the running of a one hundred-eighty-day time period within which the State was required to bring the defendant back to Indiana for trial. The record, however, does not support this allegation, or an alternate allegation that the triggering date was August 30, 1979. On appeal the burden is on the appellant to establish his claims. In this case the defendant has failed to meet this burden. The claim under the Interstate Agreement on Detainers is therefore foreclosed because the defendant cannot identify the dates crucial to a determination of the issue.
Turning to the constitutional claims, we are similarly unable to review them because the defendant has not met his burden of establishing his claims. In Barker v. Wingo, (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court enunciated four factors to be considered in determining whether the Sixth Amendment right to a speedy trial had been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. A five-year delay in that case was not a violation of the speedy trial right in light of defendant Barker's failure to assert his rights and his inability to demonstrate prejudice as the result of the delay. The Supreme Court had earlier considered the case of the defendant imprisoned in one state who seeks disposition of a criminal charge pending in another state, Smith v. Hooey, (1969) 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. "Upon the petitioner's demand, (the state has) a constitutional duty to make a diligent, good faith effort to bring him before the ... court for trial." Id., 393 U.S. at 383, 89 S.Ct. at 579. In Smeltzer v. State, (1970) 254 Ind. 165, 258 N.E.2d 647, following the guidelines of Smith v. Hooey, supra, this Court announced that, in the case of accused persons incarcerated outside Indiana, the following factors were to be considered: (1) the length of time that transpires between the demand by the accused for a speedy trial and the initiation of action by the proper Indiana authorities for the accused's return; (2) the procedures followed by the state in seeking release from the jurisdiction in which the accused is incarcerated; and (3) compliance by state officials with pertinent statutes of Indiana and the other jurisdiction. The defendant has not presented a reviewable claim because in connection with the first factor there is an insufficient record as to when, if ever, he made a demand for a speedy trial.
The next claim is that the evidence on the burglary charge was insufficient to support the defendant's conviction. The burglary statute provides:
Ind.Code § 35-43-2-1 (Burns 1979 Repl.)
Two points are advanced in support of this claim. First, the defendant claims that the State failed to present any evidence showing that defendant broke into the apartment. Second, he claims that there was no evidence of an intent to commit a felony.
As to the first point, the defendant argues that the record reveals no direct or circumstantial evidence that the door to the apartment was closed before he entered it. A witness testified that the door was open when he pursued the defendant, and that he saw pry marks on the door, although the witness could not tell whether they were fresh marks, and he stated that most of the doors in the apartment complex had pry marks on them.
The State claims that circumstantial evidence and inferences from the testimony proved the element of breaking.
In reviewing claims of insufficiency, this Court neither weighs the evidence nor resolves questions of credibility, but only looks to the evidence and reasonable inferences therefrom that support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657; Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890.
On the element of breaking and entering, the evidence revealed that the defendant was seen trying to get into another apartment at the same complex within minutes of the charged burglary, by opening the lock with a screwdriver. When a security guard cornered the defendant after the defendant was seen leaving the apartment he was charged with burglarizing, he found a screwdriver on him.
Leatrice Shepard, the tenant of the apartment, testified that she lived there alone, had left it in the morning to go to work, and had given no one permission to enter it. She said that when she returned in the evening she discovered that the apartment had been broken into and ransacked.
The evidence that the defendant had entered another apartment minutes earlier by using...
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Joy v. State
...affirm the conviction if there is substantial evidence of probative value to support it. McMillian, 450 N.E.2d at 999; Howard v. State, (1982) Ind., 433 N.E.2d 753, 756. At the time of this offense, the crime of burglary was defined in Indiana Code section 35-43-2-1 (1979 Repl.), 5 as: "A p......
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Canaan v. Davis, Cause No. IP 97-1847-C H/K (S.D. Ind. 1/10/2003)
...does not constitute evidence that appellant applied any force to gain unauthorized entrance. 541 N.E.2d at 912, citing Howard v. State, 433 N.E.2d 753 (Ind. 1982). The majority's analysis of the issue is supported by the trial record. The majority both (1) fairly described the evidence in t......
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Bellmore v. State
...even slight force was used to gain unauthorized entry, as where a door left partially ajar is opened further in entering. Howard v. State (1982), Ind., 433 N.E.2d 753. The proof in this instance is that the victim answered a knock to her door after dark on a summer evening. There was a regu......
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Canaan v. State
...of credibility, lacks probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Howard v. State (1982), Ind., 433 N.E.2d 753. To prove burglary, the State must show a breaking and entering occurred. I.C. 35-43-1-4. Proof of a breaking and entering re......