Nelson v. State, 3-380A72

• Decision Date: 29 December 1980
• Docket Number: No. 3-380A72,3-380A72
• Parties: E. L. NELSON, Appellant (Defendant Below) v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 988

413 N.E.2d 988

E. L. NELSON, Appellant (Defendant Below) v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-380A72.

Court of Appeals of Indiana, Fourth District.

Dec. 29, 1980.

Thomas L. Ryan, Deputy Public Defender, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Kathleen L. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

E. L. Nelson was convicted of burglary, IC 35-43-2-1 ¹ and sentenced to ten years. From this he appeals raising several issues. Due to our decision we need only discuss one:

Whether the trial court erred by refusing to give Nelson's tendered instruction on circumstantial evidence.

We reverse and remand.

FACTS

On October 29, 1978, at approximately 7:00 a. m., the police discovered Nelson in the attic of Frank Johnson, Jr.'s upstairs apartment in Fort Wayne. The police had been summoned thereby Johnson's neighbor who, knowing him not to be home, reacted when noises were heard in the apartment. When the police arrived Johnson's door was padlocked from the outside, a bathroom window had been broken and some of Johnson's stereo equipment was outside the broken window on the roof.

Johnson acknowledged at trial that he and Nelson had engaged in a sexual affair in the course of which Nelson had, on occasion, slept at Johnson's apartment. However, he testified that he had not seen Nelson recently, and had neither given him permission to be at his apartment on October 28, 1978, nor to remove any of his stereo equipment.

Nelson testified to the following: he had entered the apartment at approximately two-thirty that morning, and had a discussion in which he told Johnson he wanted to end the relationship. They went to bed and when Nelson awoke Johnson had left, presumably to go to work. Nelson testified it was not unusual for him to stay at the apartment while Johnson was at work. However, in their previous discussion Johnson indicated he was going out of town after work that day. After he discovered the door was locked from the outside, Nelson tried to leave through the bathroom window. He was removing the stereo because he claimed he paid for part of it. He testified he didn't "break" the window but he "raised the window and it fell." While removing the stereo he saw one of the police officers who yelled something threatening. He then ran to the attic to hide.

DISCUSSION

Nelson contends the court erred in refusing to give his tendered instructions on circumstantial evidence. The following instructions were tendered and refused:

"Proof of circumstantial evidence must not only coincide with the hypothesis of guilt, but must be of so conclusive a (sic) character, and point so surely and unerringly to the guilt of the accused as to exclude every hypothesis of innocence."

"The true test by which to determine the value of circumstantial evidence in respect to its sufficiency to warrant a conviction in a criminal cause is, not whether the proof establishes circumstances which are consistent, or which coincide with the hypothesis of the guilt of the accused, but whether the circumstances satisfactorily established are of so conclusive a character, and point so surely and unerringly to the guilt of the accused, as to exclude every reasonable hypothesis of his innocence. The force of circumstantial evidence being exclusive in its character, the mere coincidence of a given number of circumstances with the hypothesis of guilt, or that they would account for, or concur with, or render probable, the guilt of the accused, is not a reliable or admissible test, unless the circumstances rise to such a degree of cogency and force as, in the order of natural cause and effect, to exclude to a moral certainty every other hypothesis except the single one of guilty."

"The law requires more than mere opportunity. It requires evidence to prove guilt beyond a reasonable doubt. It will not permit a mere possibility because of opportunity to commit the crime charged. It does not require direct evidence, but if not direct, then the circumstantial evidence must be such as to exclude every other reasonable hypothesis except that of guilt. One may not be convicted on a mere conjecture or possibility."

In determining whether an instruction has been properly refused we must determine 1) whether the tendered instruction is a correct statement of the law, 2) whether the giving of the instruction is supported by evidence in the record and 3) whether the substance of the tendered instruction is covered by other instructions given at trial. Spears v. State, (1980) Ind., 401 N.E.2d 331, Davis v. State, (1976) Ind., 355 N.E.2d 836.

Recently in Spears v. State, supra, our Supreme Court examined the propriety of the following language which was deleted by the trial court from an instruction:

"However, where the evidence is circumstantial in character, it must be of such inclusive (sic) and persuasive force that it tends to point surely and unerroringly (sic) to the guilt of the accused to such an extent that it excludes every reasonable hypothesis of innocence. Therefore, if circumstantial evidence in this case gives rise to two reasonable inferrences (sic), one of guilt and one of the defendant's innocence, you must acquit the defendant."

Spears v. State, supra at 334.

The Supreme Court determined that the tendered instruction included a correct statement of the law and in reversing the conviction of murder on this issue stated:

"It is current law that on appeal this Court will not adopt the test of exclusion of every reasonable hypothesis of innocence as a standard for review in sufficiency matters. However, this Court has never departed from the conviction that the above standard is a proper one to be employed at the trial court and a defendant is entitled to an instruction to that effect.

We conclude that the language which the trial court deleted from defendant's tendered instruction correctly states the law. As stated above, the evidence was circumstantial in this case and, therefore, supported the giving of the omitted portions of defendant's tendered instruction."

Spears v. State, supra at 334-35.

We must next determine if the evidence supports the giving of an instruction on circumstantial evidence. Circumstantial evidence is "(e)vidence of facts or circumstances from which the existence or non-existence of fact in issue may be inferred." Black's Dictionary of Law, 221 (5th Rev.Ed., 1979). Here the evidence used to establish that Nelson had broken into Johnson's apartment was circumstantial. There was direct evidence that Nelson broke the window. But the fact that he broke it while attempting to enter the apartment (contrary to his testimony) could have been inferred from the police officer's testimony as to the location of the broken glass ² since no one testified to his entering the apartment by any means. Thus, there was circumstantial evidence ³ which required the giving of an instruction as in Spears v....