Perdue v. State, 1-179A30
Decision Date | 26 December 1979 |
Docket Number | No. 1-179A30,1-179A30 |
Citation | 398 N.E.2d 1290 |
Parties | Randall Gene PERDUE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Indiana Appellate Court |
J. Lee McNeely, McNeely & Sanders, Mark W. McNeely, Shelbyville, for appellant.
Theodore L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal by Randall Gene Perdue from a jury verdict finding him guilty of First Degree Burglary. 1 He was sentenced to an indeterminate period of not less than ten years nor more than twenty years.
We affirm.
Perdue presents these issues for review:
1. Was there sufficient evidence of entry and intent to commit a felony?
2. Was it error for the trial court to deny Perdue the opportunity to inspect the scene of the crime in a timely manner?
3. Did the trial court err in admitting a photograph (State's Exhibit 22) into evidence over Perdue's objection?
4. Did the trial court err in refusing to give Perdue's tendered instructions 2, 3, 6, 7 and 8?
5. Was error committed when, during final argument, the prosecutor allegedly read and argued State's instructions three and five which the trial court had previously refused?
The facts most favorable to the State are as follows: At three o'clock in the morning of June 24, 1975, Perdue and his companion Dave Pettit parked Pettit's pick-up truck near John Hawk's house which was located in a Shelby County rural area. They wedged the storm door, splintered the frame and broke in the locked door of Hawk's residence, an unpainted one story farmhouse overgrown with weeds. Upon seeing the silhouettes of two people, Hawk shot at the figures, killing Pettit and wounding Perdue. Pettit was wearing brown cotton gloves. After the incident, a strange flashlight was found on the premises by Hawk. At about four o'clock on the same morning, Perdue knocked at the residence of Gaynelle Hite and asked for help because he had been shot. Hite lived approximately two miles from Hawk. Perdue told the police he had been shot and robbed by persons who had picked him up while he was hitchhiking. At six o'clock on the same morning, Hawk, who did not have a phone at his residence, called police from another location and told them he shot and killed one person who was breaking into his home and wounded another.
When the sufficiency of the evidence is questioned on appeal this Court will neither weigh the evidence nor judge the credibility of witnesses. We will only determine if there is substantial evidence of probative value together with reasonable and logical inferences from which the jury could have found the defendant guilty beyond a reasonable doubt. Cummings v. State (1979), Ind., 384 N.E.2d 605; Barnes v. State (1978), Ind., 378 N.E.2d 839; Jones v. State (1978), Ind., 377 N.E.2d 1349. In exercising our appellate function we do not have to find circumstantial evidence "is adequate to overcome every reasonable hypothesis of innocence but only whether an inference may reasonably be drawn therefrom to support the finding of the trial court" (citations omitted), Jones v. State, supra, at 1351; Cummings v. State, supra.
A person "enters" within the meaning of the burglary statute when he puts himself in a position to commit a felony inside the structure. Lee v. State (1976), Ind.App., 349 N.E.2d 214 ( ). Penman v. State (1975), Ind.App., 325 N.E.2d 478 ( ). Here, although the evidence was conflicting, the jury could have inferred Perdue "entered" from the testimony of Sheriff Murnam and Hawk. Murnam testified he heard Perdue tell Pettit's parents . Hawks testified he could see dull silhouettes in the house. On cross examination he testified he thought they were inside.
The intent to commit a felony can be inferred from the time, force and manner of entry if there is no evidence that the entry was made with some lawful intent. Lisenko v. State (1976), 265 Ind. 488, 355 N.E.2d 841; Sleck v. State (1977), Ind.App., 369 N.E.2d 963. See Carter v. State (1976), 265 Ind. 535, 356 N.E.2d 220.
In Lisenko, our Supreme Court stated at 842, 843 of 355 N.E.2d:
The Appellants' sufficiency arguments assert that the evidence in this case failed to establish the second element, intent. We do not agree. The evidence at trial established that entry to the building in question was effected by prying open a locked steel door at about 4:00 a. m. No employees of the business were present in the building. The Appellants offered no explanation for their presence. In the absence of evidence that this forced entry was made with some lawful intent, we think that the intent to commit a felony may be reasonably inferred from the time, force, and manner in which the entry here was made. In addition, the Appellants' statement to police that they "gave up" evidenced a consciousness of guilt from which the jury could further infer a felonious purpose. An inference of guilt may be drawn therefrom the same as if the Appellants had fled.
A person may be convicted of burglary if he breaks and enters with the intent to commit a felony even though he does not actually commit a theft or any other felony. Elmore v. State (1978), Ind., 382 N.E.2d 893.
Here, Perdue and his confederate splintered the door frame, broke in the locked door and entered Hawk's residence at three o'clock in the morning. They arrived in a pick-up truck which was parked near the house. Perdue's companion was wearing brown gloves in the middle of summer. A flashlight was discovered on the premises. When Perdue sought help, he lied about the circumstances surrounding his injury. The evidence was sufficient for the jury to infer Perdue had an intent to commit a felony in Hawk's home. 2
Perdue was charged on June 27, 1975. On July 7, 1975 he filed a motion requesting an order to permit entry upon the land of John Hawk for the purpose of inspecting, measuring, surveying and photographing the scene of the alleged crime in preparation of his defense. The Motion contained the following request:
Defendant, Randall Perdue, by counsel respectfully requests the court to issue an Order permitting the defendant, through his Counsel, or someone acting on his behalf, to enter upon the land of the prosecuting witness, John Hawk, for the purpose of inspection, measuring, surveying and photographing the property for the purpose of the preparation of the defense in this cause.
There is nothing in the record showing Hawk was given notice of this motion, made a party to the proceedings, or subpoenaed. During the following sixteen and a half months numerous events transpired: namely, the trial court granted the Motion to Inspect; the Supreme Court appointed a special judge; the State moved the court to reconsider its original order permitting inspection and the original order was vacated; Perdue moved for a change of venue from the County which was granted; Perdue moved to reconsider his request to inspect the crime scene, and a Judge Pro Tem granted Perdue's Motion to inspect and ordered the Sheriff of Shelby County to facilitate the inspection.
Finally, on November 23, 1976, Perdue moved to dismiss the cause because he had never been allowed to inspect the land. In this motion he alleged neither the sheriff nor the prosecutor had complied with the court order. Further, he alleged that on June 25, 1976 his counsel had sent a letter to John Hawk asking him to allow inspection of the land and also that he sent a letter to the sheriff requesting that he make arrangements for such inspection pursuant to a court order. Neither letter is in the record nor is the motion verified. A hearing was held on the motion to dismiss on November 29, 1976. Hawk appeared. The evidence, if any, from this hearing is not in our record. The trial court then denied the motion to dismiss and, further, set aside the last order allowing inspection because of the failure of Perdue to follow Ind.Rules of Procedure, Trial Rule 34.
On February 22, 1977, Perdue finally filed what appears to be an appropriate motion pursuant to T.R. 34, requesting entry and inspection of Hawk's land and moving that Hawk be made a party to respond to the request. Hawk filed objections to the inspection and on July 22, 1977 the court overruled the objections and ordered Perdue be allowed to make his inspection. On August 18, 1977, Hawk attempted, by requesting a court order, to change the terms of the inspection but this attempt was denied by the trial court on September 10th, 1977.
Perdue claims that between September 19th and December 21st, he received no cooperation from the sheriff in making the inspection and therefore, on the latter date, requested the court order the sheriff to escort him to view the premises. The court immediately ordered the inspection. Apparently the view took place on January 5th, 1978.
We agree that, upon proper request by Perdue, it would have been error for the trial court in this instance to deny his request for inspection. But a proper request to a non-party must comport with T.R. 34 3 which provides in pertinent part:
(A) Scope. Any party may serve on any other party a request * * *
(2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(B).
(C) Application to non-parties. A witness or person other than a party may be requested to...
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