Justice v. State

Decision Date23 November 1988
Docket NumberNo. 22S00-8604-CR-362,22S00-8604-CR-362
PartiesTerry D. JUSTICE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Michael J. McDaniel, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Lisa Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

A jury found appellant Terry Justice guilty of burglary, a class B felony, Ind. Code Sec. 35-43-2-1 (Burns 1985 Repl.) The trial court sentenced him to twenty years in prison.

Justice raises three issues on direct appeal, but we need consider only one: whether the evidence is sufficient to establish intent to commit theft. It is not.

On May 11, 1985, at approximately 2:45 a.m., a crashing noise awakened Tammy Bryant. She heard someone trying to enter her house. Bryant turned on a lamp and telephoned her parents. While her father drove to her house, she continued to speak to her mother on the telephone. Bryant heard someone come down the hallway and then saw a man standing in the hallway outside her room. He walked into her room and toward her bed. She noticed that he had black socks on his hands. Bryant recognized him as a former friend of her brother and said: "Terry Justice, what are you doing here? I'm Anthony's little sister." Upon hearing this, the man turned around and immediately left the house. When the police arrived, they discovered that a screen had been removed from a dining room window and left on the ground outside. The back door had also been left open. The State charged Terry Justice with breaking and entering with intent to commit theft.

Justice argues that the evidence is insufficient to establish intent to commit theft. In reviewing a sufficiency claim, this Court looks only at the evidence most favorable to the verdict and any reasonable inferences which may be drawn from that evidence. If a reasonable finder of fact could determine from the evidence that the defendant was guilty beyond a reasonable doubt, then we will uphold the verdict. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Proof of an illegal entry only establishes criminal trespass. Ind. Code Sec. 35-43-2-2(a)(5). 1 Burglary requires proof of intent to commit a felony inside the structure. Ind. Code Sec. 35-43-2-1. 2 To establish intent to commit a felony the State must specify what felony the defendant intended to commit. Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge.

Intent to commit a given felony may be inferred from the circumstances, but some fact in evidence must point to an intent to commit a specific felony. Gilliam v. State (1987), Ind., 508 N.E.2d 1270. The State argues the intent to commit theft can be inferred from the evidence that Justice entered the premises illegally, fled when the victim recognized him and covered his hands. We do not agree.

Intent to commit a felony may not be inferred from proof of breaking and entering alone. Timmons v. State (1986), Ind., 500 N.E.2d 1212. Similarly, evidence of flight alone may not be used to infer intent, though other factors, such as the removal of property from the premises, may combine with flight to prove the requisite intent for burglary. Sargent v. State (1973), 156 Ind.App. 469, 297 N.E.2d 459.

Evidence of breaking and entering, and evidence of flight are not probative unless tied to some other evidence which is strongly corroborative of the actor's intent. The evidence does not need to be insurmountable, but it must provide "a solid basis to support a reasonable inference" that the defendant intended to commit the underlying felony. Gilliam, 508 N.E.2d at 1271. While there is evidence of breaking and entering, and evidence of flight in this case, there is no evidence that Justice touched, disturbed or even approached any valuable property.

The State asks us to infer that the reason Justice had socks on his hands was because he intended to commit theft. The Indiana Court of Appeals has held that a jury can reasonably infer that "covering one's hands with socks in May was for the purpose of avoiding detection...

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29 cases
  • Hahn v. State
    • United States
    • Indiana Appellate Court
    • February 8, 1989
    ...intent to commit theft, as here required, even though such evidence might demonstrate a general felonious intent. In Justice v. State (1988) Ind., 530 N.E.2d 295, 297, the Court "Evidence of breaking and entering, and evidence of flight are not probative unless tied to some other evidence w......
  • Patterson v. State
    • United States
    • Indiana Appellate Court
    • June 14, 2000
    ...The charged felony was theft. In a series of cases including Gilliam v. State, 508 N.E.2d 1270 (Ind.1987), Justice v. State, 530 N.E.2d 295 (Ind.1988), Gebhart v. State, 531 N.E.2d 211 (Ind.1988), and Robinson v. State, 541 N.E.2d 531 (Ind.1989), our supreme court held that proof of an ille......
  • Rider v. State
    • United States
    • Indiana Appellate Court
    • April 30, 1991
    ...intent to commit a particular underlying felony cannot be established, criminal trespass is the appropriate charge, see Justice v. State (1988), Ind., 530 N.E.2d 295, 296, this argument is not helpful to Rider's case. The intent necessary for burglary may be inferred from circumstantial evi......
  • Baker v. State
    • United States
    • Indiana Supreme Court
    • June 12, 2012
    ...beyond a reasonable doubt, then we will uphold the verdict.” Freshwater v. State, 853 N.E.2d 941, 942 (Ind.2006) (citing Justice v. State, 530 N.E.2d 295, 296 (Ind.1988)) (citations omitted) (internal quotation marks omitted). We do not reweigh the evidence or judge the credibility of witne......
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1 books & journal articles
  • Balancing Conservation and Development Through Environmental Impact Review
    • United States
    • Protecting the environment through land use law: standing ground
    • September 6, 2014
    ...141 Sun Co., 625 N.Y.S.2d at 379; N.Y. Comp. Codes R. & Regs. tit. 6, §617.3(g)(1). 142 See Save the Pine Bush, Inc. v. City of Albany, 530 N.E.2d 295 (App. Div. 1988). 143 N.Y. Comp. Codes R. & Regs. tit. 6, §617.2(i). 144 Mass. Gen. Laws ch. 30, §§61-62I (2014). 145 Town of Gardiner, N.Y.......

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