Mikel v. State

• Decision Date: 29 April 1975
• Docket Number: No. 2--774A177,2--774A177
• Citation: 326 N.E.2d 621,164 Ind.App. 26
• Parties: Herbert Stanley MIKEL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 621

326 N.E.2d 621

164 Ind.App. 26

Herbert Stanley MIKEL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--774A177.

Court of Appeals of Indiana, Third District.

April 29, 1975.

Mark W. Shaw, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Russell W. Sims, Deputy Atty. Gen., for appellee.

HOFFMAN, Judge.

On March 4, 1974, defendant-appellant Herbert Stanley Mikel was charged by affidavit with the crime of first degree burglary as defined in IC 1971, 35--13--4--4, Ind.Ann.Stat. § 10--701 (Burns 1956), which provides, in pertinent part, as follows:

'(a) Whoever breaks and enters into any dwelling-house or other place of human habitation with the intent to commit any felony therein, or to do any act of violence or injury to any human being, shall be guilty of burglary in the first degree, and on conviction thereof shall be imprisoned not less than ten (10) years nor more than twenty (20) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.'

Following trial before a jury, Mikel was found guilty as charged, sentenced to imprisonment for not less than ten nor more than twenty years, and ordered committed to the custody of the Indiana Department of Corrections for classification and confinement. Thereafter, appellant's motion to correct errors was overruled and the present appeal was perfected.

The sole issue preserved on appeal is whether appellant's conviction of the offense of first degree burglary is supported by sufficient evidence.

It is to be noted that when questions concerning the sufficiency of evidence are presented on appeal, this court may consider only that evidence which is most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Further, it is not our function to weigh the evidence or determine the credibility of witnesses. McAfee v. State (1973), Ind., 291 N.E.2d 554. It has been held that a conviction may be sustained upon circumstantial evidence alone so long as the evidence is of such probative value that an inference of guilt beyond a reasonable doubt may be drawn therefrom. Gregory v. State (1972), Ind., 286 N.E.2d 666. A conviction which rests in whole or in part upon such evidence will not be reversed unless this court can state as a matter of law that reasonable persons could not form inferences with regard to each material element of the offense so as to ascertain a defendant's guilt beyond a reasonable doubt. Guyton v. State (1973), Ind.App., 299 N.E.2d 233.

An examination of the evidence most favorable to the State discloses that at approximately 9:30 P.M., on June 21, 1973, Officers Amos Edgar Atwood and James Briner of the Indianapolis Police Department were dispatched to a residence located at 2053 East Michigan Street in Indianapolis to investigate a report of a burglary in progress. Upon their arrival, they heard the 'back door slam' and observed two individuals running away. One of the fleeing subjects, later identified as appellant-Mikel, was 'holding two guns, two rifles, over his right shoulder as he was running, with a bottle in his left hand.' As Officers Atwood and Briner pursued the two individuals who were running in the direction of a nearby house, they observed Mikel drop a bottle of whiskey and found a .22 calibre rifle in an alley. Officer Atwood determined that the other suspect who was later identified as Kenneth Dixon had entered a house located at 2048 East Michigan Street. Following a search of the area, a pillow case containing nickels, dimes, quarters and half dollars, together with boxes of 12 gauge shotgun shells, .22 calibre cartridges, and a bottle of J.W. Dant whiskey was recovered from a doorway. Appellant was found hiding under a wood pile in the vicinity of a nearby garage.

Kenneth Gordon occupied an apartment in the residence located at 2053 East Michigan Street. He testified that he had left for his place of employment earlier in the evening of June 21, 1973, that at such time all of the doors to the residence had been locked, and that the windows were closed and secured by nails. Gordon stated that upon his return to the house at approximately 6:30 or 7 A.M., the following morning he noticed that '(t)he kitchen window was busted out' and that his rifle was missing together with 'a few other odds and ends', including a quantity of pennies and quarters, boxes of 12 gauge shotgun shells and .22 calibre rifle cartridges, two bottles of whiskey and a pillow case. Officer Briner testified that upon his arrival at the residence in question he observed that a side window had been broken and that the rear door was standing open. During trial, Kenneth Gordon identified as his property the rifle and items found in the pillow case...