Hubble v. State, 1271S383

• Decision Date: 06 August 1973
• Docket Number: No. 1271S383,1271S383
• Citation: 299 N.E.2d 612,260 Ind. 655
• Parties: Joseph A. HUBBLE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 612

299 N.E.2d 612

260 Ind. 655

Joseph A. HUBBLE, Appellant, v. STATE of Indiana, Appellee.

No. 1271S383.

Supreme Court of Indiana.

Aug. 6, 1973.

John C. Mowrer, Danville, for appellant.

Theo. L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice. ^*

Appellant was charged by affidavit with the crime of second degree burglary. After trial by jury in the Hendricks Superior Court appellant was found guilty as charged and was sentenced to imprisonment at the Indiana Reformatory for a period of not less than two (2) nor more than five (5) years.

On appeal the appellant raises two issues, namely whether State's Exhibits 2, 3, 4, and 5 were properly admitted into evidence and whether the evidence was sufficient for the court to overrule defendant's motion for a directed verdict at the close of the state's evidence.

Appellant contends that it was reversible error for the court to admit State's Exhibits 2, 3, 4, and 5. Those Exhibits were photographs of the Maplecroft Drive-In premises taken by a deputy sheriff on July 9, 1971, three days before the trial of this cause. Defendant objects to the admission of these photographs for the reason that they did not depict the scene as it existed on March 31, 1971, the date of the burglary. At the outset it should be noted that although defendant's contention applies to each of the above-mentioned Exhibits, it is obvious that two of them are not involved in this issue. Two of the photographs are irrelevant to the issue presented. The major contention of the appellant is that the photographs showed a greater amount of foliage existing on the date they were taken than existed on the date of the crime. However, State's Exhibit 2 contains no foliage at all, but rather is a photograph of the door to the concession stand at the theater. In addition, State's Exhibit 3 does not show the bushes around the theater where the stolen goods were allegedly hidden by the defendant. Instead, Exhibit 3 showed bushes around the concession stand and the condition of the buildings on the date the photograph was taken. However, State's Exhibits 4 and 5 do show foliage near the motion picture screen where the stolen goods were hidden. The appellant contends that State's Exhibits 4 and 5, because they show additional foliage existing on the dates the photographs were taken, prejudiced the defense by misleading the jury with respect to whether the hidden stolen goods could have been seen by a normal passerby on March 31, 1971. The appellant suggests that this is crucial because the state sought to prove that only the perpetrators of the burglary would have known where the goods were hidden and could have gone so directly to them at the time the alleged perpetrators were observed by the state's witnesses. We think the appellant's contention is without merit because in offering the photographs into evidence the prosecution was careful to ask the deputy sheriff who took the photographs what they depicted and on what date the photographs were taken. In addition, the deputy sheriff testified that the premises did look somewhat different on March 31 than they did at the photographs were taken by saying, 'I think there would probably be more foliage now.' Since the jury was specifically apprised of the difference between what the scene looked like on the date of the burglary and the date the photographs were taken, we do not believe that they could have been misled. The fact that some conditions had changed at the time photographs were taken does not necessarily render the photographs inadmissible, but the changes, if material should be explained in such a way that the jury would not be misled. 3 Jones on Evidence § 17:53 (6th ed. 1972) and cases cited therein. In addition, after reviewing the record, it is clear that the photographs in question were not introduced for the sole purpose of showing the jury the shrubery in the area where the stolen goods allegedly were hidden, but were also introduced for the purpose of showing the jury certain areas around the theater so that they could understand the relationship of the various parts of the premises. In our view there could be nothing prejudicial in the admission of the photographs for the last mentioned purpose.

Finally, the photographs in question were not the only evidence that the boxes of goods taken by the defendant were effectively concealed from view when placed in the bushes. No less than six witnesses gave direct testimony establishing that the boxes of goods taken from the concession stand were not easily observable by passersby. In our view, the state's theory that the perpetrators of the burglary had hidden the goods in the bushes hoping to return the next evening to retrieve them, and that no one but the burglars would know that anything was in the bushes was emphatically established by the six witnesses. The evidentiary role of the photographs was merely cumulative of other direct testimony. New v. State (1970), Ind., 259 N.E.2d 696. Hawkins v. State (1941), 219 Ind. 116, 37 N.E.2d 79.

It is equally well settled in this state that the admission of the evidence of a photograph is within the sound discretion of the trial court and the court's action therein will not be disturbed except for abuse. New v. State (1970), Ind., 259 N.E.2d 696; Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d 860. No such abuse has been shown in the instant case.

Appellant's final contention is that the court erred in refusing to direct a verdict of acquittal at the close of the state's case. However, in arguing this point the appellant makes it unclear whether he is suggesting that the motion for a directed verdict should have been sustained or that the evidence was not sufficient to support the verdict. In either case the test to be applied by this court is whether there was a total absence of evidence on an essential element of the crime. See Wojcik v. State (1965), 246 Ind. 257, 204 N.E.2d 866; State v. Patsel (1960), 240 Ind. 240, 163 N.E.2d 602.

This Court is bound by well-settled...