Kappes v. State
| Decision Date | 16 July 1975 |
| Docket Number | No. 2--974A225,2--974A225 |
| Parties | Dan KAPPES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Stephen J. Cuthbert, Lafayette, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.
Before STATON, P.J., and GARRARD and HOFFMAN, JJ.
Dan Kappes, defendant, is appealing his conviction of second-degree burglary, 1 for which he was sentenced to the Indiana Department of Correction for a term of two to five years. The sole issue presented is whether there was sufficient evidence to support the conviction.
We affirm.
Facts viewed most favorably to the State reveal that early on the morning of March 29, 1973, Officer James Withers of the Lafayette Police Department had three men under surveillance. All there were known to Withers personally. At approximately 2:00 a.m., William Crank, Larry Morrison and defendant were observed by Withers approaching Friendly Foster's, a restaurant in Lafayette. Defendant was seen hiding behind a trash barrel as Crank attempted to kick down a side door. Crank failed to gain entry through the door but successfully kicked out a window in the front portion of the restaurant.
After radioing for assistance, Withers proceeded toward the front of the building. Although Withers was only able to identify Crank and Morrison as running from the building, Officer Lloyd Brown, a member of the assistance team, observed three individuals running from inside the restaurant, one of whom then slipped around the building. Crank and Morrison were picked up shortly after the break-in, while defendant was eventually apprehended thirty to forty-five minutes later and approximately a mile from the scene of the crime.
Defendant concedes in his brief that sufficient evidence existed establishing that both Crank and Morrison entered the restaurant with intent to commit a felony. 2 Defendant's argument rests on the fact that Withers saw only Crank and Morrison exit the building and that no one witnessed defendant either enter or leave the building.
It is well established that a conviction may be sustained on circumstantial evidence alone. McAfee v. State (1973), Ind., 291 N.E.2d 554; Lamb v. State (1974), Ind.App., 318 N.E.2d 587. As stated in Atkins v. State (1974), Ind.App., 307 N.E.2d 73, 76:
'The specific test for the examination of circumstantial evidence requires that we view the evidence, not for the purpose of determining whether or not it is adequate to overcome every reasonable hypothesis of innocence, but with the view of deciding whether an inference may be reasonably drawn therefrom which tends to support the finding of the trial court.'
Officer Withers testified that he was acquainted with all three individuals involved, he witnessed Crank attempting to kick down the door as defendant hid behind a trash barrel, he witnessed Crank break the front window of the restaurant, and that he saw Crank and Morrison exit the building. The circumstantial evidence is that Officer Brown observed three unknown individuals running from inside the store. The one individual he captured was later identified as Morrison.
It is felt from the above facts that an inference can reasonably be drawn that defendant was one of the three individuals attempting to flee from inside the restaurant. Sufficient circumstantial evidence existed from which the jury could find guilt beyond a reasonable doubt.
Even if Officer Brown's testimony was...
To continue reading
Request your trial
- Moe v. Koe
-
Monroe v. State, 2--375A84
...view of deciding whether an inference may be reasonably drawn therefrom which supports the judgment of the trial court. Kappes v. State (1975), Ind.App., 330 N.E.2d 755. 'Any such inference, however, must be a logical deduction flowing directly from the circumstantial evidence which initiat......