Powell v. State
| Decision Date | 26 June 1974 |
| Docket Number | No. 3--1173A151,3--1173A151 |
| Citation | 312 N.E.2d 521,160 Ind.App. 557 |
| Parties | Dewayne POWELL, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Anthony V. Luber, South Bend, for appellant.
Theodore L. Sendak, Atty. Gen., Larry C. Gossett, Deputy Atty. Gen., Indianapolis, for appellee.
Dewayne Powell (Powell) was convicted of first degree burglary by a jury for his participation in the robbery of an elderly man in his home. Judgment was entered thereon.
The facts and inferences most favorable to the State establish that Powell was one of two men who burst into the victim's home, removed items of value from his person and home at gunpoint, stole his car, and left him 'hog tied' with a sweeper cord in his basement. Since the victim was not allowed to look at the burglars and had his head covered with a cloth during most of the incident, he was unable to identify his assailants.
However, Powell was positively identified through a latent fingerprint found upon a television the intruders had attempted to remove from the victim's home, but had abandoned inside the home. It was shown that Powell could not have had access to the television less than one year prior to the crime, when it had been removed from the home for repairs and may have been placed in a public area of a repair shop. It was further shown that the surface of the television upon which the fingerprint was found had been dusted frequently since that time.
The first issue Powell presents on appeal concerns the sufficiency of this evidence to support his conviction. Aside from an invitation to re-weigh the evidence in this case, which this court must decline, Powell relies solely upon the case of Nichols v. State (1973), Ind.App., 301 N.E.2d 246.
In Nichols the court held that where the only evidence connecting a defendant with a second degree burglary of a business was his latent fingerprints on the door and on an object in a public area of the business, there was insufficient evidence to support his conviction. This was because the possibility existed that the defendant could have legitimately entered the premises and left his fingerprints during business hours.
In the case at bar, unlike Nichols, all possibilities that Powell could have come into contact with the television legitimately were foreclosed. The victim did not know Powell and had not admitted him to his home. Also, the last possible public access to the television was approximately a year before the crime, and it had been dusted regularly since that time. Thus, the only conclusion that can be reached is that Powell left his fingerprint on the television while attempting to remove it from the victim's home and, therefore, was one of the men who broke into the victim's home to steal from him. Since there was evidence and inferences to establish each material element of the charge, the trial court properly denied Powell's motion for judgment on the evidence, and the jury's verdict had a sufficient factual basis.
At a hearing prior to the trial of this case, the trial court ordered Powell to submit to fingerprinting. Powell objected to both the taking of the fingerprints and the introduction of them in evidence, and raises these actions of the trial court as error on appeal. However, since he cites no authority to the court for these contentions, these alleged errors must be deemed waived. Ind.Rules of Procedure, Appellate Rule 8.3(A)(7). Yeary v. State (1971), 257 Ind. 159, 273 N.E.2d 96; Matthew v. State (1972), Ind.App., 289 N.E.2d 336. And, even assuming, arguendo, that these issues were properly raised, the record demonstrates no prejudice to any right guaranteed Powell by the Constitution of the United States.
Powell further predicates error upon the giving of the following jury instruction:
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...but at one time accessible to the public, then defendant's legitimate access to the object must be ruled out. Powell v. State (1974), 160 Ind.App. 557, 312 N.E.2d 521 (surface of television set which had been dusted frequently since removed from house for repairs one year prior to crime). L......
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