Joy v. State, 1-783A228

Citation460 N.E.2d 551
Case DateMarch 08, 1984
CourtCourt of Appeals of Indiana

John A. Kesler II, Terre Haute, for defendant-appellant.

Linley E. Pearson, Atty, Gen, Theodore E. Hansen, Deputy Atty, Gen., Indianapolis, for plaintiff-appellee.



From his convictions for burglary, a class C felony, 1 and theft, a class D felony, 2 in a Gibson Circuit Court jury trial, the defendant, Robert Joy, now appeals.

We affirm.


On July 18, 1978, employees of the Leland Lumber Company in Princeton, Indiana, arrived at work to discover the premises had been burglarized. A subsequent investigation revealed the fence surrounding the lumber yard had been cut, presumably with a pair of wire cutters found nearby, and two of the company's flat bed trucks had been driven through the opening into an adjoining cornfield. In addition, a small tractor owned by the company had been driven into the field and left near the trucks.

The lumber company premises consisted of a main building which housed a showroom and offices. Also on the premises were three detached storage sheds, two of which were completely open on one side to facilitate easy storage and removal of lumber. The entire premises was enclosed by a fence; on the north side with a chain link fence and a gate which served as the sole entrance to the lumber yard, and on the remaining three sides with a farm fence which was in a poor state of repair.

In the course of his investigation, Indiana State Trooper Joseph Fitch spoke with Larry Joe Taylor, who admitted his involvement in the crime and implicated the defendant. Taylor subsequently gave Fitch a statement wherein he stated that he, the defendant, the defendant's two brothers, Stanley and Delbert Joy, and two other individuals committed the burglary. According to Taylor, the defendant drove the group to the scene in a van, gave them a list of items he wanted to have stolen, and dropped them off. Taylor and the others then gained entry into the lumber yard by jumping over the farm fence and loaded the trucks with the materials specified by the defendant. Once loaded, they drove the trucks through the fence and transferred the lumber to a waiting semitrailer. 3 During this entire time, Taylor claims, the defendant remained in the van.

Upon leaving the field, the group took the lumber to the defendant's house in Pimento, Indiana, where it was eventually unloaded and used to construct a hog barn. 4

Additional facts are stated in our discussion of the issues.


In all, the defendant has stated 24 separate issues. For purposes of clarity, as well as brevity, we have distilled this number to the following:

1. Was there sufficient evidence to establish that a burglary was committed?

2. Did the trial court err in failing to read the charging informations to the jury?

3. Should the trial court have granted a new trial on the basis of newly discovered evidence which allegedly indicated a key witness against the defendant had committed perjury?

4. Did the trial court err in requiring the defendant to reveal on cross-examination that his brother Delbert was confined in a federal prison for the commission of an unrelated crime?

5. Should the trial court have accepted and read to the jury the defendant's tendered instruction concerning circumstantial evidence?

6. Did the trial court err in allowing Trooper Fitch to testify to matters contained in Taylor's statement?

7. Was the denial of defendant's request for an omnibus hearing reversible error?

8. Did the trial court err in rendering a sentence on both the burglary and theft counts and ordering the terms to be served consecutively?

9. Was the information charging the defendant with burglary jurisdictionally sufficient?

10. Did the trial court err in refusing the defendant's tendered instructions concerning the jury's right to believe or disbelieve the testimony of certain witnesses?

11. Did the trial court err in refusing the defendant's tendered instruction defining the terms "breaking and entering" and "building or structure", and by instructing the jury to give such terms their ordinary and common meaning?

Issue One

The defendant first challenges the sufficiency of the evidence supporting the burglary conviction. Specifically, he contends the evidence is deficient with respect to the element of breaking and with respect to whether the fence and open storage sheds constituted structures. In addition, the defendant argues that even if the acts committed constituted a burglary, he cannot be held accountable since he did not enter the premises, but instead, remained in the van during the commission of the crime. The defendant is wrong in each and every respect.

In addressing the defendant's initial argument, we are bound by our well established standard of review. We will neither reweigh the evidence nor judge the credibility of witnesses. Wilson v. State, (1983) Ind., 455 N.E.2d 1120, 1122; Coker v. State, (1983) Ind., 455 N.E.2d 319, 322; Napoli v. State, (1983) Ind., 451 N.E.2d 35, 37. Rather, we look solely to the evidence and reasonable inferences drawn therefrom which support the verdict. Thomas v. State, (1983) Ind., 451 N.E.2d 651, 652, quoting Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105; Napoli, 451 N.E.2d 37; McMillian v. State, (1983) Ind., 450 N.E.2d 996, 999. Then, from this viewpoint, we will 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 person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelling, and a class A felony if it results in either bodily injury or serious bodily injury to any other person."

Id. Thus, to sustain the defendant's conviction for burglary in the instant case, the evidence must be sufficient to establish that a breaking and entering occurred and that the fence and/or the open storage sheds were either buildings or structures as contemplated in the statute.

Addressing first the defendant's contention that his conviction cannot stand even if his confederates committed a burglary, we direct his attention to the cases of Harden v. State, (1982) Ind., 441 N.E.2d 215, cert. denied --- U.S. ----, 103 S.Ct. 794, 74 L.Ed.2d 998 (1983), and Proctor v. State, (1979) 272 Ind. 357, 397 N.E.2d 980. The gist of these cases is that the acts of a confederate in the commission of a crime may be imputed to a defendant who did not personally commit each and every element of the offense. Indeed, as the supreme court noted in Proctor, "[a]n accomplice is criminally liable for everything done by his confederates which was a probable and natural consequence of their common plan." Id. at 983. See also Wilson v. State, (1983) Ind., 455 N.E.2d 1120, 1123; Parks v. State, (1983) Ind., 455 N.E.2d 904, 904-05; Stroud v. State, (1983) Ind., 450 N.E.2d 992, 996.

Accordingly, if in the instant case there is sufficient evidence of the commission of each of the requisite elements of burglary by either the defendant or his confederates, the acts of each may be imputed to him in order to sustain the conviction. 6 See Indiana Code section 35-41-2-4 (1979 Repl.).

Looking to the evidence most supportive of the judgment it reveals that the defendant's confederates entered the lumber yard by either hopping over or cutting their way through the fence. Once inside, they removed lumber and various other building materials from the open storage sheds, loaded them on the trucks, and drove them through the fence into the adjoining cornfield. In the defendant's view these acts did not constitute a burglary because, he asserts, there can be no breaking of a fence or an open storage shed and because neither the fence nor the sheds can be viewed as a building or structure.

Citing the aid of "Divine Providence" in his research, Appellant's brief at 60, the defendant directs our attention to Day v. State, (1976) Tex., 534 S.W.2d 681. Therein, the defendant cut through a chain link fence to enter a lumber yard. Once inside the fence, he entered a building on the premises by passing through an open doorway and proceeded to remove some of the lumber. The Texas court, applying that state's burglary statute, 7 held there had been no burglary because the fence did not constitute a building for purposes of breaking and because the defendant did not commit a breaking by passing through an open doorway into the building. In the court's view:

"The cutting and entry through the chain link fence in this case, although in violation of V.T.C.A., Penal Code Sec. 28.03, Criminal Mischief, in its injury to the owner's interest in the fence, and in violation of V.T.C.A., Penal Code Sec. 30.05, Criminal Trespass, in its injury to the owner's interest in the premises enclosed by the fence, nevertheless was not an entry into a building in violation of V.T.C.A., Penal Code Sec. 30.02, Burglary, which is designed to protect the interests of owners in the security of habitations and buildings as those terms are defined in Sec. 30.01, supra. If a burglary was committed, it was not until the concrete block structure was entered."

Day, 534 S.W.2d at 683-84 (footnote omitted). Thus, relying on Day, the defendant argues the acts committed in the instant case cannot be construed as a burglary.

Divine providence notwithstanding, the defendant has ignored several other cases which are more readily analogous...

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