Miller v. State

• Decision Date: 12 December 1990
• Docket Number: No. 54S00-8808-CR-773,54S00-8808-CR-773
• Citation: 563 N.E.2d 578
• Parties: Don MILLER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 578

563 N.E.2d 578

Don MILLER, Appellant, v. STATE of Indiana, Appellee.

No. 54S00-8808-CR-773.

Supreme Court of Indiana.

Dec. 12, 1990.

Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Burglary, a Class B felony and Theft, a Class D felony, and a finding of habitual offender status. For the burglary he received the maximum sentence of twenty (20) years, enhanced by thirty (30) years by reason of the habitual finding, for a total of fifty (50) years on that conviction; for the theft he received the maximum sentence of four (4) years, enhanced by twenty (20) years by reason of his habitual status, for a stated total of twenty-four (24) years on that conviction, to be served concurrently with the sentence for burglary.

The facts are: At approximately 8:00 on the evening of August 8, 1987, sixty-nine-year-old Mildred Hurt was in the living room of her home in Crawfordsville, Indiana when she heard the sound of her front door being opened. She went to see who it was and discovered a black man had entered the house. Startled at the sight of the stranger, Hurt asked him who he was and what he wanted. The man mumbled something about "Brown" and, leading him toward the door, Hurt told him no one by that name lived there. After he stepped out the door, the man turned and asked Hurt if he could use her bathroom. She replied in the negative and shut the door. About forty-five minutes later, the same man came back to her door and asked to use her telephone. She told him no, shut the door, and called her son, who lived across the street, and the police, who said they would check it out and told her to lock her doors and "stay put."

Around 11:30 the following morning, a Sunday, Hurt came downstairs into her kitchen and noticed something amiss with her hutch: the "boom box" stereo radio/cassette player that she kept on one of its shelves was unplugged with the power cord dangling over the edge. The General Electric multi-band portable radio she kept beside the boom box was missing. Instantly alarmed by the thought that someone had been in her home and taken her radio, she went over to her son's home. At his suggestion, Hurt went down to the police station and filed a report but, wanting to keep her name and address out of the newspaper, changed her mind and had the officer destroy the report.

The following day, August 10, 1987, appellant, who had been released by the Department of Correction just five days earlier, had his initial interview with his probation officer, Neil Remaklus. Midway through the interview, which took place in appellant's efficiency apartment, Remaklus noticed a portable radio (later identified as the one taken from Hurt's home) and, considering it odd that a person so recently paroled would have such a radio, questioned appellant about it. Appellant denied knowing how it had come to be in his apartment and said that someone must have put it there to set him up to frame him. Remaklus suggested he turn it in to the township trustee, who managed the apartments where appellant lived, and he did so, repeating his claim of ignorance as to its source. A check with the police by the trustee turned up no reports of lost or stolen radios, so when appellant claimed a week later that he had discovered that the person leaving it in his room had meant for him to have it, it was returned to him.

A couple of weeks later, Hurt discovered through a mutual friend that her neighbor, Elizabeth Buck, had seen a black man carrying a radio exiting Hurt's home by the back door on the day she had discovered her radio missing. Buck later positively identified appellant from each of two six-photograph arrays as the man she had seen with the radio. Hurt positively identified her radio and testified she was "80% sure" that appellant was the same man who had entered her house the night before she discovered her radio missing. It was recovered by police from one of appellant's friends to whom appellant, after his arrest, had relayed a message to secure the radio for him.

Appellant contends the evidence is insufficient to support his burglary and theft convictions. He points to Hurt's equivocal identification of him as the man who entered her home, her inability to select his photograph from an array, and discrepancies in Buck's statements regarding the time she witnessed appellant exiting Hurt's back door and her recollection of the appearance of the radio he was carrying. He argues there is no evidence he moved any impediment to gain entry and thus no proof exists of the "breaking" element of burglary. He maintains the State caused the record to be silent as to that element by its failure to question its witnesses whether any doors or windows of the victim's house had been left open. He cites Kidd v. State (1988), Ind., 530 N.E.2d 287 and other cases for the proposition that his possession of Hurt's radio one or two days after it was taken is not sufficient to support his conviction of burglary or of theft.

On sufficiency review, we will not reweigh the evidence nor judge the credibility of the witnesses. We consider only that evidence most favorable to the State, together with all reasonable inferences to be drawn therefrom, in determining whether there is substantial evidence of probative value to support the jury's verdict. Miller v. State (1989), Ind., 544 N.E.2d 141. A burglary or theft conviction may be sustained by circumstantial evidence alone; the unexplained possession of recently stolen property will support an inference of guilt of theft of that property. Id.

Appellant cites Evans v. State (1986), Ind., 497 N.E.2d 919 for the proposition that no presumptions may be drawn from a silent record. Here, however, no presumption of "breaking" was involved. Although no direct evidence was presented to prove appellant opened a door or window to gain entry to the victim's home, Buck's direct testimony of having seen appellant exit the house by swinging open the back screen door entitled the jury circumstantially to infer he entered the home in the same manner. Miller, supra. While the testimony of any one witness may not have been sufficient to support the burglary and theft convictions, Buck's positive identification of appellant leaving the house carrying a radio, Hurt's testimony that appellant had been in her home the previous night, taken together with the testimony of Remaklus and others that appellant had been in the unexplained possession of Hurt's radio, supported an inference that appellant had taken the radio in question from the victim's home with the intent to deprive the owner of its use and had entered her home with the intent to do so.

The evidence was sufficient to support appellant's convictions.

Appellant contends the trial court erred in allowing the State to present evidence that he recently had been paroled from prison. Appellant sought a pretrial motion in limine to prevent any mention by probation officer Remaklus of appellant's release from prison, his parole status, or why the radio's presence in appellant's room seemed anomalous to the witness. The trial court denied the motion (which was renewed and denied at trial), finding the evidence prejudicial but probative of the circumstances surrounding appellant's possession of the radio, thus relevant and admissible.

The State here contends Remaklus's testimony regarding appellant's recent release and parole status was admissible because it was relevant to the likelihood of appellant's legal possession of the stolen radio and because his response to Remaklus's inquiry was probative of his guilty state of mind. Appellant disputes the State's contention, arguing Remaklus's suspicions were purely speculative and unduly prejudicial given that other State's witnesses testified to appellant's possession of the radio.

"Evidence which is otherwise competent and relevant and which tends to prove or disprove a fact in issue is not inadmissible even though it tends to show guilt of another crime." Maldonado v. State (1976), 265 Ind. 492, 495, 355 N.E.2d 843, 846.

We agree with the trial court and the State that in view of the facts brought out in Remaklus's testimony to the effect that appellant could not have possessed such a radio in prison and its purchase would have required his parole officer's prior permission, these circumstances were relevant to appellant's legitimate ownership of the radio and thus were admissible.

Appellant contends the trial court erred in failing to dismiss the habitual offender count as ultimately filed and for failure to specify the county and court of the prior convictions alleged. Appellant was charged with burglary and theft on November 9, 1987 and on December 22, 1987 filed a motion for early trial which the court granted, setting as the trial date February 23, 1988. The trial began on that date at which time the State filed its habitual offender count. Appellant filed a motion to dismiss the count or to exclude evidence, which motion was denied. At the outset of the habitual phase, the trial court, over appellant's objection, allowed the State to amend the habitual count to include the court and county of the prior convictions.

Appellant acknowledges that a habitual offender allegation may be filed at any time so long as it does not prejudice the substantial rights of the defendant, citing Russell v. State (1986), Ind., 487 N.E.2d 136. He maintains he was prejudiced here by being unable to investigate an alleged Michigan...