Marshall v. State, 481S115

• Decision Date: 25 August 1982
• Docket Number: No. 481S115,481S115
• Citation: 438 N.E.2d 986
• Parties: Donald E. MARSHALL a/k/a Donald Merrell, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 986

438 N.E.2d 986

Donald E. MARSHALL a/k/a Donald Merrell, Appellant, v. STATE of Indiana, Appellee.

No. 481S115.

Supreme Court of Indiana.

Aug. 25, 1982.

Thomas P. Hallett, Hallett & Hallett, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with one count for Burglary of a dwelling. He was tried before a jury and convicted. He was sentenced to a twelve year term of imprisonment, ten years being the basic sentence and two years added thereon for aggravating circumstances.

Early in the evening of October 10, 1980, appellant came to the home of Mrs. Erisa Thomas in Gary looking for Mrs. Thomas's son Arthur. Mrs. Thomas informed him Arthur was at the home of Judith Davis, the burglary victim, who lived just two doors down the street from Mrs. Thomas. Arthur came over to his mother's house and took appellant back to Davis's home. The three spent the next several hours visiting with one another there. Around 2:00 A.M. appellant left. At about 3:00 A.M., Arthur Thomas and Judith Davis left and did not return until 7:00 A.M. When they returned they found the front door of the house had been pried open. Several items were found to be missing, including some clothing.

Erisa Thomas testified after directing appellant to Judith Davis's home early in the evening, she did not see him again until about 4:45 A.M., when he knocked on her front door and asked if Arthur was there. She replied that he was not. She watched him go toward Judith Davis's home. She also testified a car was sitting in her driveway and kept pace with him as he walked down the street. Mrs. Thomas called the Davis home and got no answer. She got a handgun and walked out into her front yard. She testified she saw appellant on the walkway leading from the Davis residence with some clothing in his arms. She then went back inside the house.

Appellant alleges the evidence is not sufficient to support the verdict of the jury. He recognizes the general rule that in sufficiency questions we review the record for substantial evidence of probative value from which a reasonable inference of guilt beyond a reasonable doubt can be drawn. He contends because the evidence in this case is circumstantial, however, we are required to reverse the conviction because it "fails to exclude every reasonable hypothesis of the presumption of innocence of the defendant".

Appellant cites Easton v. State, (1967) 248 Ind. 338, 228 N.E.2d 6 in support of his contention. Appellant errs in the assumption the exclusion of every reasonable hypothesis of innocence test is applied by this Court on review of questions of the sufficiency of the evidence. What appellant does not understand is that this test is a trial court standard for determining guilt. A defendant is entitled to an instruction on the test if all the evidence or all the evidence on one element of the offense is circumstantial. However, it does not provide the standard for appellate review in cases where an element or all the elements of the offense are proven by circumstantial evidence. In Easton we said:

"Where the evidence of an issuable fact is wholly circumstantial in nature the evidence must be so conclusive and compelling in character that it excludes every reasonable hypothesis of the presumption of innocence of the defendant. White v. State (1948), 226 Ind. 309, 79 N.E.2d 771. While the above rule has been held to be for the guidance of the trial court and on appeal it is not the province or right of this Court to weigh the evidence, however, it is the duty of this Court to examine the record of the evidence to determine whether there was sufficient evidence substantial in character to support the court's finding on each of the issuable facts or elements of the crime charged beyond a reasonable doubt." (Emphasis added). Id. at 344, 228 N.E.2d at 10-11.

Other cases make it clear the standard of review we use on appeal does not require the exclusion of every reasonable hypothesis of innocence to support a guilty verdict. See, e.g., Hall v. State, (1980) Ind., 405 N.E.2d 530; Parks v. State, (1979) Ind., 389 N.E.2d 286.

Rather, we indicated by the Easton case and those cited above, as well as a host of others, on appeal we do not reweigh the evidence nor judge the credibility of witnesses.

The evidence that the burglary took place between 3:00 A.M. and 7:00 A.M. is unrefuted. Further, direct evidence in the form of testimony from Mrs. Thomas established appellant was seen on the walkway leading from the Davis home with an armload of clothing. Coupled with Davis's testimony that some clothing was among the property taken from the burglary, it is not unreasonable to infer it was appellant who broke into the home with intent to commit a felony therein.

Appellant points to various factors in the testimony which he claims make it impossible to support a finding of guilt beyond a reasonable doubt. However, we find his assertions go to the weight of the evidence and do not preclude a finding the evidence and inferences drawn therefrom show guilt beyond a reasonable doubt. He repeatedly refers to a comment made by Mrs. Thomas that what she saw appellant carrying "appeared to be clothes." However, he ignores the fact she also stated affirmatively, "I saw [appellant] coming from Judith's house with some clothes." On several other occasions during direct and cross-examination, she stated without equivocation she saw appellant carrying clothes. Also, appellant asserts it is significant Mrs. Thomas never testified she saw appellant enter or leave the house. However, given all the evidence adduced it is reasonable to infer appellant had entered the house by way of the front door and had done so with the intent to commit a felony therein.

We hold the evidence here, though all circumstantial, is of sufficient probative value to support a finding of guilt beyond a reasonable doubt.

Appellant claims he was not granted adequate time to prepare his defense and as a result was deprived of the right to effective assistance of counsel. The record shows at his December 16, 1980 arraignment, at which he was represented by counsel, he requested a speedy trial. The trial was set for and conducted on December 22, 1980. At the end of that day, the verdict of guilty was returned.

Appellant cites Powell v. Alabama, (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, where the United States Supreme Court held the appointment of trial c...