Lane v. State, No. 3-477A109

• Docket Nº: No. 3-477A109
• Citation: 372 N.E.2d 1223, 175 Ind.App. 543
• Case Date: February 27, 1978
• Court: Court of Appeals of Indiana

Page 1223

372 N.E.2d 1223 175 Ind.App. 543 Dennis LANE, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3-477A109. Court of Appeals of Indiana, Third District. Feb. 27, 1978.

Page 1224

[175 Ind.App. 544] Jeanne J. Swartz, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

Page 1225

HOFFMAN, Judge.

Defendant-Appellant Dennis Lane was charged by information with the offense of first degree burglary. ¹ He was convicted by a jury of the included offense of theft, ² not from a person, of property with a value of one hundred dollars ($100) or more. Lane was sentenced to a period of not less than one (1) nor more than ten (10) years.

The appellant presents two issues for consideration:

I. Did the trial court err in striking the alibi testimony of the appellant's sister?

II. Was there sufficient evidence to support the conviction?

I.

The appellant sought to introduce the alibi testimony of his sister, Helen James, who resided in Fort Knox, Kentucky. She testified that she saw Dennis Lane in Fort Knox on June 17, 1976. The following day, June 18, Mrs. James and her family journeyed to South Bend, Indiana. Appellant did not accompany them. Helen James stated that she did not see the appellant in South Bend, but when she returned to Fort Knox on June 20, the appellant was in her home. She further testified that it took 51/2 to 6 hours to drive between Fort Knox and South Bend. Upon the State's motion this testimony was stricken as irrelevant.

The appellant contends that this evidence was worthy of jury consideration since it tended to prove the appellant's absence at the time and place of the crime. The State argues that the testimony was properly stricken since it did not relate to the actual day of the crime, June 19, 1976.

The theory of alibi is that defendant's presence elsewhere is essentially inconsistent with his presence at the place and time of the alleged offense. 21 Am.Jur.2d, Criminal Law, § 136 at 205.

In Vaughn v. State (1939), 215 Ind. 142 at 148, 19 N.E.2d 239 at 242, our Supreme Court commented, by way of the following example, on the exclusion of alibi evidence:

"If a resident of Chicago is charged with the commission of a crime in a small village in southern Indiana, the State would [175 Ind.App. 545] be permitted to prove that he purchased a railroad ticket in Chicago the day before the date of the crime, since it would tend to support the allegation that he was at the place of the crime at the time it was charged to have been committed. No reason is seen why any other or different rule should control the character of evidence admissible to prove that the defendant was at another place at a given time. The sole test must be whether the evidence offered tends to prove the fact sought to be established." (Emphasis supplied)

The evidence offered by the defendant in the present case might tend to prove that he was present elsewhere at the time of the alleged offense. Despite the obvious weakness of this evidence, the courts are bound by the "tendency to prove" test for relevancy as announced in Vaughn v. State, supra. Thus, alibi evidence may be relevant although it does not absolutely preclude the possibility of the defendant's presence at the alleged time and place of the criminal act. 1 Wigmore on Evidence, § 136, at 570 (3rd Ed. 1940).

The testimony of Helen James was improperly stricken. Vaughn v. State, supra. However, the self-evident weakness of this alibi evidence coupled with the strong evidence offered by the State to prove that Lane was in South Bend at the time and place of the crime and committed a crime, renders the error harmless.

II.

When an appeal questions the sufficiency of the evidence to support a conviction, this Court may consider only that evidence which is most favorable to the State, together...