Parsons v. State, 2--1272A138

Docket NºNo. 2--1272A138
Citation159 Ind.App. 160, 304 N.E.2d 802
Case DateDecember 28, 1973
CourtCourt of Appeals of Indiana

Page 802

304 N.E.2d 802
159 Ind.App. 160
Wilbur D. PARSONS, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 2--1272A138.
Court of Appeals of Indiana, Second District.
Dec. 28, 1973.

[159 Ind.App. 161]

Page 803

David F. McNamar, Steers, Klee, Sullivan & Lemay, Indianapolis, for appellant.

Page 804

Theodore L. Sendak, Atty. Gen. of Indiana, John T. Carmody, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.


Defendant-Appellant Wilbur D. Parsons (Parsons) appeals from a conviction of Second Degree Burglary claiming insufficiency of the evidence, abuse of trial court discretion for not accepting Parsons' guilty plea to a lesser included offense pursuant to a plea bargain, and insanity at the time of the commission of the act.

We affirm.


The facts and evidence most favorable to the trial court's judgment are:

On October 2, 1971, at 7:30 P.M., Officer Givan of the Indianapolis Police Department was called to the United Presbyterian Metropolitan Center at 1505 North Delaware, Indianapolis, Indiana. Upon arrival, he observed Parsons coming out of the open doorway of the Center carrying a record player.

When questioned as to what he was doing there, Parsons stated that he had come to repay a loan to the Pastor who had loaned him funds at an earlier date. On further inquiry as to the record player which he was carrying, Parsons claimed it belonged to him, although affixed to it was a tape with the words 'United Presbyterian Metropolitan Center.'

The officer inspected the Center and found the basement window broken on the rear side of the building. Parsons was then placed under arrest and the director of the Center was contacted by the police.

When Reverend LaFollett arrived at the Center, he noticed that the alarm system had been activated and that the window[159 Ind.App. 162] on the west side of the Center had been broken. He stated that he knew Parsons and had advanced him a small loan a few days earlier, but had not authorized him to remove the record player which he identified as belonging to the Center, having a value of $100.00. He also stated that at the time of Parsons' arrest, the building was empty and locked--there being no activities scheduled for that evening.

Parsons was charged by affidavit with Second Degree Burglary. On June 16, 1972, he appeared for trial with counsel and moved to withdraw his former plea of not guilty and enter a plea of guilty to the lesser included offense of Entering to Commit a Felony. The court overruled Parsons' Motion, at which time this exchange took place:

DEFENDANT: Yes, Your Honor.

THE COURT: Your lawyer says that you want to plead Guilty to Entering to Commit a Felony. Did you hear me?

DEFENDANT: Yes, Your Honor.

THE COURT: Did you hear him say that?

DEFENDANT: Yes, I did.

THE COURT: Is that what you want to do?

DEFENDANT: Well, it's about the only thing I can do.

THE COURT: Well, what do you mean, it's the only thing you can do? Can't you beat the rap?

DEFENDANT: Well, it's not that, Your Honor. I don't remember pulling it. I can't remember doing it, the burglary.

THE COURT: Defendant's motion to plead Guilty, is overruled then. You go to trial on the Second Degree Burglary, then, if you don't remember it, you understand? Did you go to college?

Page 805

THE COURT: Well, wait a minute. The Supreme Court says, he's got to enter into this intelligently and willingly. How can he do it intelligently, if he doesn't remember? Do you remember going in that place?

[159 Ind.App. 163] DEFENDANT: No.'

(Emphasis added.)

The court then ordered Parsons to stand trial on the Second Degree Burglary charge.

Parsons submitted testimony from a girl friend who had not seen him on the day of the offense or during the preceding three weeks. Her testimony was to the effect that Parsons had a drinking problem and often was unable to remember what he had done while drinking. She also stated that he told her that he had been drinking on the day in question.

The only other evidence offered by the defense was testimony by Parsons that he did not recall entering the Center or having the record player in his possession because he had been drinking most of the day on which the crime was allegedly committed. He also stated that after three or four drinks he is unable to recall what happens thereafter, although he did recall being in jail on the day in question.

No plea of insanity was entered by Parsons.

The court found Parsons guilty of Second Degree Burglary and sentenced him to imprisonment for not less than two nor more than five years.


ISSUE ONE. Was there insufficient evidence to support a conviction of Second Degree Burglary?

ISSUE TWO. Did the trial court abuse its discretion by refusing to accept Parsons' plea bargain with the State whereby he plead guilty to the lesser included offense of Entering to Commit a Felony?

ISSUE THREE. Did the trial court abuse its discretion by failing to order an examination to determine Parsons' mental capacity at the time he committed the offense?

[159 Ind.App. 164] As to ISSUE ONE, Parsons contends the State failed to show that he had entered the Center. There was no proof that Parsons broke the window and he was apprehended outside of the Center. Parsons further contends that he lacked the ability to form a specific intent to enter the building to commit a felony due to his intoxication at the time of the act.

The State replies that the alarm system had been activated by the opening of the front door of the Center. Although there were no eyewitnesses to the break-in, the facts show Parsons was apprehended coming out of the doorway of the Center carrying a record player belonging to the Center. The State contends there was no evidence of Parsons' intoxication, except that testimony presented by Parsons himself. Furthermore, Parsons was sober enough to explain his presence at the Center and claim ownership of the record player.

Relating to ISSUE TWO, Parsons argues that his plea of guilty to the lesser included offense was voluntarily made and it was therefore an abuse of judicial discretion for the court to overrule it. Parsons contends that there is no conflict between his attempt to plead guilty and his inability to remember committing the crime.

In response, the State contends that it would have been reversible error for the trial court to accept the guilty plea after Parsons alleged his inability to remember.

As to ISSUE THREE, Parsons argues the court was put on notice that he could not recall his acts. It was therefore incumbent upon the trial judge to inquire into his mental capacity at the time of the commission of the crime.

Page 806

The State replies that Parsons neither entered a plea of insanity nor contended that he was insane because he was an alcoholic. Furthermore, alcoholism by itself has never been equated with insanity.

[159 Ind.App. 165] DECISION


CONCLUSION--It is our opinion that the evidence was sufficient to sustain Parsons' conviction for Second Degree Burglary. His claim of an absence of specific intent due to intoxication must fail.

I.C.1971 35--13--4--4, Ind.Ann.Stat. § 10--701 (Burns 1956), defines 'second degree burglary':

'10--701 Burglary--First, second, and third degrees--Penalties.--

(b) Whoever breaks and enters into any boat, wharf-boat, or other water-craft, interurban-car, street-car, railroad-car, automobile, airplane, or other aircraft, or any building or structure other than a dwelling-house or place of human habitation, with the intent to commit a felony therein, shall be guilty of burglary in the second degree, and upon conviction shall be imprisoned not less than two (2) years nor more than five (5) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period: Provided, however, That the court shall have power to suspend prison sentence and place the defendant on probation in accordance with existing law.'

The evidence presented at trial was sufficient to establish the three elements of the crime charged.

(1) Breaking and Entering.

Although there were no eyewitnesses to the crime, the testimony of the arresting officer and the Center's director provide sufficient circumstantial evidence to support the conclusion that Parsons was the individual who broke into and entered the burglarized Center.

The alarm had been activated by opening the front door; the window at the rear of the building had been broken, which was unbroken the previous evening; Parsons was apprehended at the doorway of the building in possession of a record player belonging to the Center.

Indiana courts have firmly established the rule that the State may use circumstantial evidence to prove the essential [159 Ind.App. 166] elements of Second Degree Burglary. Sargent v. State (1973), Ind.App., 297 N.E.2d 459; Tyler v. State (1973), Ind.App., 292 N.E.2d 630. See also, Bradley v. State (1964), 244 Ind. 630, 195 N.E.2d 347; Raymer v. State (1964), 244 Ind. 644, 195 N.E.2d 350. Particularly is this true if the accused is in exclusive possession of the stolen property shortly after the larceny. Mims et al. v. State (1957), 236 Ind. 439, 140 N.E.2d 878.

(2) Building or Structure Other than a Dwelling-House or Place of Human Habitation.

The Church Center was an uninhabited building, the purpose of which was for worship and church-related activities, which was locked at the time of the crime.

(3) With an Intent to Commit a Felony Therein.

Parsons claims he was intoxicated to such an extent that he was incapable of forming a specific intent to commit a felony.

Intoxication is a defense to a crime involving specific intent only when the accused is so intoxicated as to render him incapable of forming the required specific intent. Storie v. State (1970), 254 Ind. 301, 258 N.E.2d 849. In Davis v. State (1968), 249 Ind. 373, 232 N.E.2d 867, Chief Justice Arterburn...

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