Sizemore v. State, 1183S400

• Decision Date: 18 July 1985
• Docket Number: No. 1183S400,1183S400
• Citation: 480 N.E.2d 215
• Parties: Harold D. SIZEMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 215

480 N.E.2d 215

Harold D. SIZEMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1183S400.

Supreme Court of Indiana.

July 18, 1985.

Frank W. Messer, Jr., Connersville, for appellant.

Linley E. Pearson, Atty. Gen., Phillip B. Rarick, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Following a jury trial Defendant (Appellant) was convicted of burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.), and sentenced to twenty (20) years imprisonment. He also was charged with theft, Ind.Code Sec. 35-43-4-2 (Burns 1979 Repl.), a class D felony, but was found not guilty.

This direct appeal raises several contentions which we restate as the following two issues:

(1) Whether the trial court erred in admitting into evidence testimony and exhibits revealing Defendant's involvement in other burglaries.

(2) Whether the evidence was sufficient to sustain the conviction.

We find no reversible error and affirm.

The evidence most favorable to the State demonstrated that Defendant and one Barrett began driving around and drinking together March 2, 1982. They burglarized at least two residences before reaching the Abel farm. Mr. Abel arrived and observed that his upstairs bedroom lights, which he had turned off when he left, were on. He found Defendant's automobile, its engine running, parked in his yard. He also observed the silhouette of someone through an upstairs window of the house.

Mr. Abel turned off the automobile ignition and removed the keys, then entered the house and found a rifle. He ordered the intruders to come downstairs. They descended, then ran out of the front door and entered Defendant's automobile. Mr. Abel then fired a shot into the rear of the automobile, and both men surrendered.

The upstairs of the house had been ransacked. As police and Mr. Abel searched his premises during the next several days they discovered jewelry, coins and other items. Some of these items were identified at trial as Mr. Abel's property, and others as items that had been taken during other

burglaries earlier in the day. Police could not determine who owned one of the items, a watch.

ISSUE I

Defendant claims that the trial court erred in admitting into evidence testimony concerning other burglaries and various items and photographs of items taken during these burglaries, which preceded the Abel burglary on the same day. Defendant contends that this evidence of prior crimes was highly prejudicial and should not have been admitted. The State counters, and we agree, that this evidence was admissible to show Defendant's intent, at the time he entered Abel's home, and to show that Defendant and Barrett were carrying out a "common scheme or plan" to burglarize homes during that day.

In a recent opinion analyzing this area Justice Pivarnik wrote:

"It is well established that evidence of other criminal activity by a defendant is highly prejudicial and generally inadmissible. Evidence of other unrelated criminal activity may be admissible in certain cases, however, to prove an accused's identification, knowledge, intent or motive or to demonstrate a common plan or scheme of criminal activity from which the accused originated the charged crime. This testimony must possess substantial probative value and must be so specifically and significantly related to the charged crime in time, place and circumstance as to be logically relevant to one of these particular accepted purposes. (Citations omitted.) This Court has held:

"[The common scheme or plan] exception requires much more than mere repetition of similar crimes; 'The device used must be so unusual and distinctive as to be like a signature.' "

(Citations omitted.)

Hobbs v. State (1984), Ind., 466 N.E.2d 729, 733.

The exhibits complained of tended to demonstrate that Defendant and Barrett intended to enter a series of dwellings and take jewelry and other small items March 2, 1982. Each of the incidents happened that day, each of the items introduced was taken that day, and Defendant or Barrett kicked in the front door of each of the three residences involved, evidence which taken together established the "signature" requirement for the common scheme or plan exception as restated by Hobbs.

Regarding one of the items, a watch, Defendant further contends that evidence concerning this item should not have been admitted because it was not identified as belonging to Mr. Abel or the prior burglary victims. Defendant's counsel objected to admission...