Malone v. State

• Citation: 660 N.E.2d 619
• Decision Date: 29 January 1996
• Docket Number: No. 20A05-9410-CR-398,20A05-9410-CR-398
• Parties: Frederick MALONE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 619

660 N.E.2d 619

Frederick MALONE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 20A05-9410-CR-398.

Court of Appeals of Indiana.

Jan. 29, 1996.

Transfer Denied May 23, 1996.

Appeal from the Elkhart Superior Court, Donald W. Jones, Judge; Cause No. 20D01-9309-CF-090.

Susan K. Carpenter, Public Defender, Gregory L. Lewis, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Office of Attorney General, Indianapolis, for appellee.

OPINION

SHARPNACK, Chief Judge.

Frederick Malone appeals his burglary conviction. He raises six issues, which we restate as:

1. whether Malone received ineffective assistance of counsel when his trial attorney failed to object to hearsay statements relevant to Malone's intent;

2. whether the trial court committed fundamental error by giving an instruction which defined reasonable doubt using the term "moral certainty";

3. whether the trial court's final instructions were unconstitutional because they diluted the State's burden of proof regarding Malone's intent;

4. whether the trial court committed fundamental error by giving a preliminary instruction which vitiated Malone's due process right to the presumption of innocence;

5. whether the trial court's final instructions violated Article I, § 19 of the Indiana Constitution; and

6. whether Malone was improperly sentenced on the basis of an inaccurate pre-sentence investigation report.

We affirm.

The facts relevant to this appeal follow. Ruth Duran, Sandra Baumer, and Kim George shared an apartment in Elkhart. On August 28, 1993, at approximately 6:30 a.m., Duran walked into the bathroom and was attacked by Malone. Malone held a knife to her throat and ordered her to be quiet. Malone closed the bathroom door, shoved Duran against it, and demanded that she perform oral sex on him. As Malone removed his hands from Duran's throat, he heard a noise. Duran told him that it might be her husband. Malone became frightened, ran out of the bathroom and jumped out the window in Baumer's bedroom. Duran observed Baumer's wallet in the bathroom. Duran testified at trial that Baumer did not usually leave her wallet in the bathroom. Duran further testified that Baumer told her approximately one hundred dollars was missing from the wallet after the attack. Evidence was submitted at trial that Malone entered the apartment by moving a window fan which was in Baumer's bedroom window.

Malone was soon after apprehended and questioned. Malone was charged and later convicted of burglary, a class B felony. He now appeals his conviction.

I.

The first issue for our review is whether Malone received ineffective assistance of counsel when his trial attorney failed to object to hearsay statements relevant to Malone's intent. To prove Malone guilty of burglary, the State had to demonstrate that he broke and entered the dwelling of Ruth Duran with the specific intent to commit a felony in the dwelling. See Ind.Code § 35-43-2-1. The State chose theft as the underlying felony for the burglary charge. Thus, in addition to the other elements of burglary, the State also had to prove that Malone intended to knowingly exert unauthorized control over the property of the owner and to deprive the owner of the property's value and use. Id.

Malone argues that the State introduced inadmissible hearsay evidence to prove Malone's intent to commit theft. He specifically objects to Duran's testimony that Baumer told her money was missing from the wallet after the attack. Malone, therefore, contends that his counsel was deficient for failing to object to the admission of the hearsay testimony.

Indiana evaluates ineffective assistance of counsel claims on the basis of a two-part standard. First, the defendant must show that his trial counsel's performance was "deficient." Clark v. State (1990), Ind., 561 N.E.2d 759, 762 (citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864). A counsel's performance is deficient when it falls "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. Reasonableness is measured by the "prevailing professional norms" within the legal profession as applied to the particular facts of the case. Id. "An accused is entitled to be assisted by an attorney ... who plays the role necessary to ensure that the trial is fair." Id. at 685, 104 S.Ct. at 2063.

Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 693-694, 104 S.Ct. at 2068.

During the State's case-in-chief, Duran testified that a wallet belonging to her roommate, Baumer, was in the bathroom at the time of the attack. Subsequently, Duran testified as follows:

"[Prosecutor Wicks:] And do you know if any money turned up missing?

[Ruth Duran:] One hundred dollars.

Q. Where is Sandy Baumer now, do you know?

A. I have no idea at this moment.

Q. As far as you know, $100 was taken from Sandy Baumer's--

A. Right.

Q. --wallet by the defendant?

A. Right, because that's what she said she had missing was $100."

Record, p. 128. Malone's trial counsel failed to object to this testimony on the basis of hearsay.

Hearsay is an out of court statement offered in a judicial proceeding to prove the truth of the matter asserted therein, and rests on the credibility of a declarant who is not in court and is unavailable for cross-examination. Hughes v. State (1989), Ind., 546 N.E.2d 1203, 1208; Robinson v. State (1994), Ind.App., 634 N.E.2d 1367, 1374. If the challenged evidence is hearsay and does not fall within one of the exceptions to the rule, it is inadmissible. Robinson, 634 N.E.2d at 1374.

The parties agree that Duran's challenged testimony constitutes inadmissible hearsay. It is an out of court statement which was offered to prove that approximately one hundred dollars had been stolen from Baumer's wallet. Therefore, defense counsel erred in failing to object to the statement. However, our analysis is not complete. Rather, we must address whether counsel's error requires us to reverse Malone's conviction. Reversible error occurs only if prejudice results to the defendant. Id. at 1374; see also Hall v. State (1994), Ind.App., 634 N.E.2d 837, 843.

The improper admission of evidence is harmless error when the conviction is supported by such substantial independent evidence of guilt as to satisfy the appellate court that there is no likelihood that the challenged evidence contributed to the conviction. Wickizer v. State (1993), Ind., 626 N.E.2d 795, 800.

We conclude that Malone failed to demonstrate a reasonable probability that, but for counsel's error, the result of the trial would have been different. Although a criminal conviction of burglary requires proof beyond a reasonable doubt of a specific criminal intent which coincides in time with the acts constituting the breaking and entering, the State need not establish by direct evidence that an individual possessed a specific intent. Johnson v. State (1993), Ind.App., 605 N.E.2d 762, 765, trans. denied. While it is generally true that proof of a mere breaking and entry does not constitute evidence of intent to commit a felony, such intent may be inferred from the time, force, and manner of entry if there is no evidence the entry was made with lawful intent. Batie v. State (1984), Ind.App., 464 N.E.2d 1319, 1320, reh'g denied, trans. denied. Circumstantial evidence supporting facts beyond the mere breaking and entering may support the intent element. Id., Blow v. State (1983), Ind., 445 N.E.2d 1369. We do not have to find that circumstantial evidence is sufficient to overcome every reasonable possibility of innocence but only that an inference may reasonably be drawn therefrom which tends to support the finding of the jury. Parks v. State (1979), 270 Ind. 689, 389 N.E.2d 286, 290.

In the case before us, the State presented evidence independent from the testimony about the missing money (which should have been excluded upon a proper hearsay objection) from which the jury could infer Malone's intent to commit theft. Testimony was presented at trial that Malone entered the house through Baumer's bedroom window after moving the window fan. Furthermore, testimony was presented that Baumer's wallet was in the bathroom during the attack and that it was unusual for the wallet to be there. Specifically, Duran stated:

"[Duran] There was a wallet.

* * * * * *

A It was in the bathroom. It ended up being my roommate's wallet.

[Prosecutor] Who was that?

A Sandra Baumer.

Q Did the defendant have the wallet?

A It was in the bathroom so it had to--he had to have, because Sandy's room is the room he entered into and that's where she keeps her wallet and stuff.

But when I woke up he was in the bathroom, so it was in the bathroom. And I know Sandy hadn't left it in the bathroom. She don't [sic] leave her wallet laying around."

Record, pp. 127-128. Moreover, Duran testified that Malone ran out of the bathroom and jumped out Baumer's bedroom window after she told him that a noise they heard was probably her husband.

In Sipes v. State (1987), Ind., 505 N.E.2d 796, 797, our supreme court addressed a similar issue. The court held that evidence of the defendant fleeing without taking money on a nearby table did not preclude the finding of the intent to steal in a burglary case because there was evidence that the defendant fled after the victim screamed. Id. Similarly, Malone fled from the bathroom where the wallet was located after panicking when Duran told him the noise they heard was her husband. Furthermore, the jury reasonably could have concluded that the wallet was in the bathroom with Malone...