Long v. State
| Decision Date | 20 October 1975 |
| Docket Number | No. 1--375A53,1--375A53 |
| Citation | 166 Ind.App. 282,335 N.E.2d 631 |
| Parties | William Robert LONG, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Donald R. Peyton, Lebanon, for appellant.
Theo. L. Sendak, Atty. Gen., Lawrence B. O'Connell, Deputy Atty. Gen., Indianapolis, for appellee.
Before ROBERTSON, C.J., and LYBROOK and LOWDERMILK, JJ.
Defendant-appellant, Long, appeals from his conviction of second degree burglary, IC 1971, 35--13--4--4, Ind.Ann.Stat. § 10--701 (Burns 1956), contending the evidence was not sufficient on the element of intent to commit a felony therein.
We affirm.
The facts most favorable to the State are: On May 10, 1973, defendant was observed outside the Model Sports Center in Lebanon, Indiana, by Officer Large of the Lebanon Police Department. The officer saw defendant first look around and then proceed to throw a large piece of concrete through the lower pane of the Sports Center's front door. Defendant again looked around, stepped through the broken part of the door, and then dropped his right shoulder down to go through the opening. At that time, the officer identified himself as a police officer and ordered defendant to stop.
After warning the subject, the subject fled. The officer again warned the subject, but as he continued to run, the officer shot him. The officer's testimony disclosed that defendant had a man's sock covering one hand and another sock was lying in the gutter.
When this Court is requested to review the sufficiency of the evidence, we will look only to the evidence most favorable to the State and the reasonable inferences to be drawn therefrom. Martin v. State (1974), Ind., 314 N.E.2d 60; Keyton v. State (1972), 257 Ind. 645, 278 N.E.2d 277; Cabell v. State (1974), Ind.App., 312 N.E.2d 142; Hauk v. State (1974), Ind.App., 312 N.E.2d 92; Caywood v. State (1974), Ind.App., 311 N.E.2d 845. In examining the evidence presented, this Court will consider inferences drawn therefrom reasonable if there was substantial evidence of probative value presented. Birkla v. State (1975), Ind., 323 N.E.2d 645; Allbritten v. State (1974), Ind., 317 N.E.2d 854; Releford v. State (1975), Ind.App., 325 N.E.2d 214.
The elements of second degree burglary are: (1) breaking (2) and entering (3) into a building or structure other than a dwelling house or place of human habitation (4) with intent to commit a felony therein. Cook v. State (1973), 258 Ind. 667, 284 N.E.2d 81; Reas v. State (1975), Ind.App., 323 N.E.2d 274; Gorbett v. State (1974), Ind.App., 318 N.E.2d 592.
Defendant contends that evidence of breaking and entering, without more, is not sufficient to prove an intent to commit a felony. Faulkner v. State (1973), Ind., 292 N.E.2d 594; Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Nichols v. State (1973), Ind.App., 301 N.E.2d 246. Similarly, evidence of flight alone may not be used to infer the element of intent, since flight simply indicates a consciousness of guilt or fear of being apprehended on the part of the subject for breaking and entering as well as for burglary. Faulkner v. State, supra. However, if flight is combined with other circumstantial evidence which sustains the crime charged, then flight may be used to infer a guilty knowledge. Sargent v. State, infra.
Since intent is a subjective state of mind, this element must be inferred from the circumstances of the particular case. Chapman v. State (1975), Ind.App., 321 N.E.2d 863; Lamb v. State (1974), Ind.App., 318 N.E.2d 587; Martin v. State (1973), Ind.App., 300 N.E.2d 671; Sargent v. State (1973), Ind.App., 297 N.E.2d 459. It is not necessary to show that an actual felony has been committed, only that the defendant had the intent to commit a felony. Gorbett v. State, supra; Gibson v. State (1973), Ind.App., 303 N.E.2d 666.
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Carson v. State
...see also Markoff v. State, 553 N.E.2d 194, 196 (Ind.Ct.App.1990) (“intent is a mental state of the actor”); Long v. State, 166 Ind.App. 282, 285, 335 N.E.2d 631, 632 (1975) (“intent is a subjective state of mind”). Carson does not cite any case law in which an appellate court was asked to e......
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Brown v. State
... ... Defendant's instruction #8 is not an accurate statement of the law in Indiana. Flight alone is not sufficient to establish the necessary element of intent, but flight, when combined with other circumstantial evidence, may sustain a finding of that intent. Long v. State (1975), Ind.App., ... 335 N.E.2d 631; Sargent v. State (1973), Ind.App., 297 N.E.2d 459 ... In any event, the trial court's final instruction #7 instructed the jury concerning circumstantial evidence. That the trial court chose to instruct on circumstantial evidence as a ... ...
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...may be considered along with all the other circumstantial evidence in this case to sustain a finding of that intent. Long v. State (1975), Ind.App., 335 N.E.2d 631. Brown et al. v. State (1976), Ind.App., 43 N.E.2d Also under specification 1 Moss argues he did not have the mental capability......
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