Oster v. State

• Decision Date: 09 August 2013
• Docket Number: No. 84A05–1208–CR–437.,84A05–1208–CR–437.
• Citation: 992 N.E.2d 871
• Parties: Thomas W. OSTER, II, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

992 N.E.2d 871

Thomas W. OSTER, II, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 84A05–1208–CR–437.

Court of Appeals of Indiana.

Aug. 9, 2013.

Stacy R. Uliana, Bargersville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

At approximately 7:00 p.m. on January 18, 2012, Bill Wolfe was in Large Ink, the business in which he had his art studio, when he heard two bangs and glass shattering in the rear of the building. Wolfe stepped outside and called 911. When police arrived, entered the front of Large Ink, proceeded toward the rear, and announced themselves, they heard a crash. A glass panel in the door with access to an alley had been broken, and a mobile telephone and brick were found near the door. Appellant–Defendant William Oster, II was soon apprehended nearby. Oster bore fresh abrasions and cuts and was carrying a pouch containing two screwdrivers and a pair of pliers. It was later determined that the mobile telephone found near the door contained pictures of Oster.

The State ultimately charged Oster with Class C felony burglary, Class A misdemeanor criminal mischief, and with being a habitual offender. Following a bifurcated trial, a jury found Oster guilty as charged and to be a habitual offender. The trial court sentenced Oster to seven years of incarceration for burglary and one year for criminal mischief, to be served concurrently, with that sentenced enhanced by eleven years by virtue of the habitual offender finding. Oster contends that the State failed to produce sufficient evidence to sustain his burglary conviction or the habitual offender finding, that his convictions violate prohibitions against double jeopardy, and that the trial court committed fundamental error in instructing the jury. While the State concedes that Oster's convictions may not both stand, we conclude that Oster's other claims are without merit. Consequently, we affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In January of 2012, Wolfe, an artist, painter, and sculptor, was renting studio space in Large Ink, a printing and sign fabrication shop in Terre Haute. The Large Ink building is located at 635 Ohio Street and had access to Ohio Street and an alleyway behind. At approximately 7:00 p.m. on January 18, 2012, Wolfe and Todd Stokes were at Large Ink and “heard the back door tug from the alley way[.]” Tr. p. 304. Wolfe left through the front door and drove his truck around to the alleyway behind Large Ink but did not see anything amiss. When Wolfe drove back around to the front of Large Ink, he noticed a man wearing grey camouflage pants and a stocking cap walking west on Ohio Street. Wolfe drove to a gasoline station approximately three blocks away and then decided to “make one ... more pass over at the, the shop.” Tr. p. 306. When Wolfe reentered Large Ink through the Ohio Street door, he heard two “bangs” and then glass shattering in the rear. Tr. p. 306. Wolfe stepped back outside, called 911, and began to walk to the alleyway behind Large Ink.

Terre Haute Police Officer Daniel Armentrout and Officer Toney responded and entered Large Ink through the front door. As the officers entered Large Ink, they could hear someone “kicking or pulling” on a metal door that led to a back room, which room had access to the alleyway. Tr. p. 380. When Officer Armentrout yelled “Police,” he “hear[d] footsteps run into a door, and a loud crash.” Tr. p. 381. The officers opened the metal door and noticed that the door providing access to the alleyway had a window broken out of it. Officer Armentrout looked out of the window and saw a figure running south down an alleyway.

Meanwhile, Wolfe had walked to the alleyway behind Large Ink and was still on the telephone with police dispatch, who informed him that “there's an officer walking in your front door right now.” Tr. p. 308. Soon thereafter, Wolfe turned a corner and saw a man wearing a dark stocking cap and dark blue jacket heading south toward Walnut Street, an east-west street south of Ohio Street. Wolfe ran over to Walnut Street and saw a man wearing camouflage pants riding a bicycle west on Walnut Street. When asked at trial if the man wearing camouflage pants was the same person he had seen in the alleyway, Wolfe responded, “I don't think, I don't think it was the same guy, no.” Tr. p. 310.

A police officer soon apprehended Oster “coming out the alley” onto Walnut Street. Tr. p. 386. Oster bore fresh abrasions on the back of his head, right shin, lower left back, left shin, right midsection, and forehead. Oster was also in possession of a pouch that contained Phillips-head and flat-head screwdrivers and a pair of pliers. When Wolfe and police returned to the alleyway behind Large Ink, they found a brick and mobile telephone on the ground near the door. The mobile telephone contained several photographs of Oster.

The State ultimately charged Oster with Class C felony burglary, Class A misdemeanor criminal mischief, and with being a habitual offender. In preliminary instructions, the trial court instructed the jury, in part, as follows:

The crime of Burglary, a Class C Felony, as charged in Count One (1) is defined by law as follows: A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits Burglary, a Class C Felony. Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt. One (1), the Defendant Thomas William Oster II; two (2) knowingly; three (3), broke and entered; four (4), the building or structure of Large Ink, L.L.C.; five (5), with intent to commit a felony, Theft, in it, by exerting unauthorized control over the property of Large Ink, L.L.C.

Tr. p. 267. The trial court's final instruction on the elements of Class C felony burglary was, for all intents and purposes, identical to its preliminary instruction. Following the guilt phase of Oster's trial, the jury found him guilty of Class C felony burglary and Class A misdemeanor criminal mischief.

During the habitual offender phase of Oster's bifurcated trial, the State presented testimony from former Clay County adult probation officer Steven Bell and Brandon Loveless from the Indiana Parole Division. Bell supervised Oster when Oster was on probation in Clay County and knew him. Bell identified several certified documents establishing that Oster had several prior unrelated felony convictions in Clay County and one in Parke County. Loveless testified that he had supervised Oster and was familiar with his criminal history. Loveless testified that Oster was the same person named in the certified documents admitted into evidence by the State during Bell's testimony. The jury found Oster to be a habitual offender. The trial court sentenced Oster to seven years of incarceration for burglary and one year for criminal mischief, both sentences to be served concurrently, and enhanced Oster's sentence by eleven years by virtue of his habitual offender status.

DISCUSSION AND DECISION

I. Whether the State Produced Sufficient Evidence to Sustain Oster's Burglary Conviction

When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the factfinder's role to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. We consider conflicting evidence in the light most favorable to the trial court's ruling. Id. We affirm the conviction unless no reasonable fact-finder could find that the elements of the crime were proven beyond a reasonable doubt. Id.

Oster contends that the State failed to produce evidence sufficient to sustain his burglary conviction, specifically, that it failed to establish his intent to commit theft within Large Ink. In its latest discussion on the topic of proving intent in the burglary context, the Indiana Supreme Court wrote:

Burglary is the breaking and entering of the building or structure of another person with the intent to commit a specific felony therein. Ind.Code § 35–43–2–1; Gilliam v. State, 508 N.E.2d 1270, 1270 (Ind.1987); Yeagley v. State, 467 N.E.2d 730, 736 (Ind.1984)

“Burglars rarely announce their intentions at the moment of entry,” Gilliam, 508 N.E.2d at 1271, and indeed many times there is no one around to hear them even if they were to do so. Hence, a burglar's intent to commit a specific felony at the time of the breaking and entering “may be inferred from the circumstances.” Id.;see also Hampton v. State, 961 N.E.2d 480, 487 (Ind.2012) (“[T]he mens rea element for a criminal offense is almost inevitably, absent a defendant's confession or admission, a matter of circumstantial proof.”); Kondrup v. State, 250 Ind. 320, 323–24, 235 N.E.2d 703, 705 (1968) (“[T]he intent to commit a felony may be inferred from the circumstances which legitimately permit it.”). “Circumstantial evidence alone is sufficient to sustain a burglary conviction.” Kidd [ v. State ], 530 N.E.2d [287, 287 (Ind.1988) ]; accord Cash v. State, 557 N.E.2d 1023, 1025 (Ind.1990) (“A conviction for burglary may be sustained by circumstantial evidence alone.”).

Evidence of intent “need not be insurmountable,” Gilliam, 508 N.E.2d at 1271, but there must be a “specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony[.]” Freshwater [ v. State ], 853 N.E.2d [941, 944 (Ind.2006) ]. The evidentiary inference pointing to the defendant's intent must be separate from the inference of the defendant's breaking and entering. Justice [ v. State ], 530 N.E.2d [295, 297 (Ind.1988) ]; Kondrup, 250 Ind. at 323, 235 N.E.2d at 705. The...