Jones v. State

• Decision Date: 21 December 1983
• Docket Number: No. 882S91,882S91
• Parties: Arthur JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1025

456 N.E.2d 1025

Arthur JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 882S91.

Supreme Court of Indiana.

Dec. 21, 1983.

John F. Davis, Mary Jane Humphrey, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Arthur Jones, was convicted of burglary, a Class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1983 Supp.), and was sentenced to fourteen years imprisonment. The defendant raises six issues in this direct appeal:

1. Whether the trial court erred in not instructing the jury that criminal trespass was an included offense of burglary;

2. Whether the evidence was sufficient to establish that defendant had the necessary intent to commit a felony;

3. Whether the trial court erred in admitting certain photographic evidence;

4. Whether the trial court erred in admitting into evidence certain State exhibits;

5. Whether the trial court erred in permitting the State to amend the information by interlineation; and

6. Whether the length of the sentence was manifestly unreasonable.

The facts most favorable to the State show that the defendant and two others were driving in an automobile in Evansville on October 4, 1981. They stopped in front of the home of Kyle Sharum, and, after determining no one was home, pried open the back door. The defendant and one of his accomplices then ransacked the house. The police apprehended all three while they were still at the scene.

I.

The defendant first contends the trial court erred when it refused to give defendant's tendered instruction number four, which stated:

"Included in the crime charged in the lesser crime of Criminal Trespass.

"The crime of criminal trespass is defined by statute as follows:

"A person who, (not having a contractual interest in the property), knowingly or intentionally enters the dwelling of another person without his consent, commits criminal trespass, a Class A misdemeanor.

"To convict the defendant, the State must have proved each of the following elements:

"The defendant:

"1. (not having a contractual interest in the property)

"2. knowingly or intentionally

"3. entered the dwelling of another person

"4. without his consent

"If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.

"If the State did prove each of these elements beyond a reasonable doubt, (and the defendant did not have a contractual interest in the property), you should find the defendant guilty of Criminal Trespass, A Class A misdemeanor."

The defendant asserts that criminal trespass is a "lesser included" offense of burglary and that he therefore had a right to an instruction on the matter. In support of this argument the defendant cites Jones v. State, (1982) Ind., 438 N.E.2d 972. In Jones, we discussed the two-step approach outlined in Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d 208, to determine the propriety of an instruction on a lesser offense. The first step involves examining the statutes involved and the charging information to determine if the lesser offense is alleged to have been committed. If the State, through careful drafting of the information, chooses to not charge a lesser offense, the defendant is not entitled to an instruction on it. As we stated in Jones v. State, "the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense." Id., Ind., 438 N.E.2d at 975. Here, the information charged that the defendant "did break and enter the building and structure occupied by Sharum Kyle [sic], situated at 629 E. Powell, in the City of Evansville, County of Vanderburgh, State of Indiana, which said building and structure was the dwelling of said Sharum Kyle [sic], with the intent to commit a felony, to-wit: theft, all in violation of I.C. 35-43-2-1."

It is clear by the language of the information and by the reference to the burglary statute that the State intended to charge the defendant only with burglary. The information did not mention lack of contractual interest, which is a necessary element of the type of criminal trespass contained in the tendered instruction. See Ind.Code Sec. 35-43-2-2(a)(5) (Burns 1979 Repl.). The State has absolute discretion to determine the crime with which the defendant will be charged. Jones v. State. Here they chose to rest their case entirely on the burglary charge.

The present issue is very similar to one raised in Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239. In Goodpaster, we were asked to determine whether criminal trespass was an included offense of Class A burglary. After holding that criminal trespass under Ind.Code Sec. 35-43-2-2(a) (Burns 1979 Repl.) was not necessarily an inherently included offense of burglary, we held the defendant was not entitled to an instruction on criminal trespass, since the information only alleged burglary. Thus, we stated:

"The exclusion of these criminal trespass elements as allegations in the charging instrument reflects the State's desire in this case to prosecute only for burglary, and none of its possibly included offenses, and to 'avoid the opportunity for the jury to convict the defendant of a lesser offense in lieu of the crime charged.' Roddy v. State, supra, 394 N.E.2d [1098] at 1104."

Goodpaster v. State, Ind., 402 N.E.2d at 1243.

Here, as in Goodpaster, if the charging instrument alleged the defendant burglarized a dwelling in which he had no "contractual interest", the defendant would have been on notice that a conviction for criminal trespass was possible. In such a case, an instruction on criminal trespass would be appropriate. But the prosecutor chose to charge burglary only. The defendant could not, by way of instruction to the jury, inject the lesser charge of criminal trespass. Since the defendant has therefore failed to pass the first step of the Lawrence approach, it is unnecessary to determine whether the second step is satisfied, i.e. whether the evidence warrants the giving of the instruction. Roddy v. State, (1979) Ind.App. 394 N.E.2d 1098. Even so, we note that there was no evidence establishing any contractual relationship or interest by the defendant in the property. In fact, the defendant testified that he thought he was visiting one of his accomplice's residence. Thus, the evidence did not warrant the giving of the instruction, and it was properly refused.

II.

The defendant next contends the evidence was insufficient to establish all of the elements of burglary. Specifically, he alleges the State failed to prove intent to commit theft.

Under our standard of review for sufficiency of evidence issues, we will neither reweigh the evidence nor judge the credibility of witnesses. Instead, we look at the evidence most favorable to the State and all reasonable inferences drawn therefrom to determine whether there is substantial evidence of probative value to support the conclusion of the trier of fact. Walker v. State, (1982) Ind., 442 N.E.2d 696; Fielden v. State, (1982) Ind., 437 N.E.2d 986.

The State needed to prove that the defendant (1) broke, (2) entered, (3) the dwelling of another, (4) with the intent to commit a felony, in order to establish an conviction for burglary. The defendant asserts that since nothing was missing from the premises, the State failed to prove the defendant intended to commit theft, as charged in the information.

The focus here is upon the intent of the defendant. This intent may be inferred from the time, force, and manner in which the entry was made. Lisenko v. State, (1976), 265 Ind. 488, 355 N.E.2d 841. Contrary to the defendant's assertion, a completed theft is not required for a conviction of burglary. The State was required only to prove the defendant intended to commit theft. The evidence here showed that the defendant pried open the back door of the house and then ransacked the interior. The defendant was found hiding in a closet when the police arrived, and jewelry belonging to the victims was found in a bag nearby. Also, property belonging to the victim was found on Ernest Johnson, a co-defendant. The jury would reasonably infer from all of this that the defendant had the requisite intent to commit theft.

III.

State's exhibits 9, 10 and 13 through 18 were admitted into evidence over the defendant's objections. All of these exhibits were photographs of the burglary scene and were taken by a police photographer, Robert Greenfield. The defendant now asserts that the State failed to establish a proper foundation for the introduction of the photographs.

Admission of photographic evidence is within the discretion of the trial court and the trial court's decision will not be disturbed unless he exceeded his discretion. Bray v. State, (1982) Ind., 430 N.E.2d 1162; Wilson v. State, (1978) 268 Ind. 112, 374 N.E.2d 45. The photograph must be established as a true and accurate representation of the things they are intended to portray. Bray v. State; ...