Sluss v. State, 1-282A41

• Decision Date: 29 June 1982
• Docket Number: No. 1-282A41,1-282A41
• Citation: 436 N.E.2d 907
• Parties: Randall SLUSS, Respondent-Appellant, v. STATE of Indiana, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 907

436 N.E.2d 907

Randall SLUSS, Respondent-Appellant, v. STATE of Indiana, Petitioner-Appellee.

No. 1-282A41.

Court of Appeals of Indiana, First District.

June 29, 1982.

Robert W. Beck, Monroe County Public Defender, Bloomington, for respondent-appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for petitioner-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Respondent-appellant Randall Sluss (Sluss) appeals from an order entered in the Monroe Circuit Court-Juvenile Division which found that Sluss did break and enter into the dwelling of Frank Foulks (Foulks) with the intent to commit the felony of battery upon Foulks with a deadly weapon, that being a club. Upon such finding, Sluss was adjudged a delinquent child by the trial court.

We reverse.

STATEMENT OF THE FACTS

The evidence most favorable to the State discloses that on April 28, 1981, Sluss, age 17, walked through the open front door of Foulks's house and sat down and talked to Foulks for several minutes. Sluss, who was acquainted with Foulks, then made "several kinds of vague threats" and Foulks asked him to leave, which Sluss did. A few minutes later, Foulks heard a noise at the back door, and, upon inspection, he observed Sluss standing in front of the back door holding a knife. Foulks testified: "I asked him what he wanted and he said nothing and appeared to walk away." A few minutes later Foulks found Sluss wandering around the house outside and looking at the windows. Foulks testified, "I went outside and asked him what he was doing. He said that he had lost something." Foulks then went inside and called the police. While waiting for the police to arrive, Foulks intermittently observed Sluss walking around the outside of the house. He then observed Sluss running away from the house, upon which Foulks discovered his back door open and the door's windowpane broken out. Foulks testified:

"I went back into the house and I called the police again. And, then I continued waiting and I continued to look out the windows of the house and I, after a while I didn't see Randy anymore so I went outside and began to circle the house clockwise from the west side to the north and then to the east side. When I came, turned the corner to the east side of the house I saw Randy standing at the back door with a knife apparently performing some operation on the lock of the door with the knife. And, when he saw me he just walked away without saying anything. I started to walk away. I went around the front of the house and at that point I saw the police car that had come. The officers were already out of the car and then they were approaching the area on the south side of the house and I said there he is, there he is. Randy began to run and we pursued him."

Foulks admitted that the back door window previously was cracked and he didn't know whether it was broken out while Sluss was wandering around the outside of his house that day. Foulks testified he never heard the window break and Sluss was not always in his constant view. Foulks never observed Sluss carrying a club or threaten to attack him with a club. Foulks also testified that Sluss never touched him.

The police chased after Sluss and found him hiding in an evergreen tree. After properly reading Sluss his constitutional rights at the Bloomington Police Department, Sluss made a statement to officer John Coleman of the Bloomington Police Department who testified that Sluss stated:

"... that Mr. Foulks had made a pass at him and he got mad and left. And, he said that he went outside and that he got a club and he decided to go in the house and hit Mr. Foulks. And, that, he said that the basement window was already broken out but that he did reach in and unlock it and go into that portion of the house but that the door leading to the living quarters was locked. And, that he couldn't actually get into the house."

Thereafter, a petition alleging delinquency was filed, it charged that Sluss had committed an act that would be a crime if committed by an adult, to-wit: burglary with the intent to commit battery with a deadly weapon, to-wit: a club. Upon the above stated facts, the juvenile referee of the Monroe Circuit Court found that Sluss had committed the alleged act and adjudged him a delinquent child. The Monroe Circuit Court approved the referee's findings and order on July 31, 1981.

ISSUES

Sluss raises the following three issues for review:

I. Did the Referee err in admitting Respondent's statement without proof of the corpus delicti of the charged offense?

II. Did the Referee err in overruling Respondent's motion to strike respondent's statement at the close of the State's evidence in this cause because the State of Indiana failed to prove the corpus delicti of the charged offense?

III. Did the Court err in adjudicating the Respondent delinquent because, without Respondent's statement, there is insufficient evidence to find him delinquent and is, therefore, contrary to law?

DISCUSSION AND DECISION

The determinative question, as the parties agree, is whether the State introduced independent evidence of the corpus delicti to justify the admission of Sluss' out-of-court statement. Therefore, we shall treat the above stated issues as one argument.

Sluss argues the State failed to prove the corpus delicti of the charged offense, there being no evidence from which an entry or an intent to commit battery with a deadly weapon can be inferred, citing as authority Cambron v. State, (1975) 262 Ind. 660, 322 N.E.2d 712.

The Indiana Supreme Court in Cambron, supra, at 665-66, 322 N.E.2d 712, in discussing the need for the State to introduce independent evidence of the specific crime charged to support an admission or confession, stated:

"In order to avoid the risk of convicting someone for a crime which he confessed, but which never occurred, a confession must be excluded, unless the State introduces corroborating evidence concerning the corpus delicti. Parker v. State (1949), 228 Ind. 1, 88 N.E.2d 556. The corpus delicti is variously defined. To establish the corpus delicti for the purpose of admitting into evidence a confession, this Court has required independent evidence of (1) the occurrence of the specific kind of injury (in homicide, a person deceased), and (2) somebody's criminal act as the cause of the injury (in homicide, that the death was caused by the unlawful conduct of another person). Parker, supra; Simmons v. State (1955), 234 Ind. 489, 129 N.E.2d 121. The evidence establishing the corpus delicti may be circumstantial, as for any other material fact that must be proved. Messel v. State (1911), 176 Ind. 214, (95 N.E. 565). In the case at bar, the police and the doctor presented evidence that Baumgartner had died from the effects of repeated blows to the head with a meat tenderizer.

Most Indiana cases speak of the corpus delicti as the 'specific crime charged', or 'the crime' or, e.g., 'the rape'. Parker, 228 Ind. at 6, (88 N.E.2d 556); Messel, 176 Ind. at 217, 95 N.E. 565. These cases may require that the State introduce some independent evidence of each of the elements of the crime in order to establish the corpus delicti." (Citation omitted.)

A burglary is committed when a break and entry is effected with the intent to commit a felony. Jones v. State, (1981) Ind.App., 421 N.E.2d 15. The elements of burglary can be proved by circumstantial evidence alone. Eaton v. State, (1980) Ind. 408 N.E.2d 1281. However, the offense of burglary is not committed unless the accused breaks and enters. Link v. State, (1953) 232 Ind. 466, 113 N.E.2d 43.

It is desirable to first establish the corpus delicti before showing a confession or statement against interest by the defendant, but such is not necessary; the matter of order of proof is within the sound discretion of the trial court. Lee v. State, (1976) 169 Ind.App. 470, 349 N.E.2d 214. Specifically, in order to establish the corpus delicti of burglary, it is necessary to show a breaking and entering into a dwelling house of another with an intent to commit a felony therein. Berry v. State, (1972) 153 Ind.App. 387, 287 N.E.2d 557. A person has "entered" a structure of another when he has essentially put himself in a position to commit a felony within the confines of the structure. Cissna v. State, (1976) 170 Ind.App. 437, 352 N.E.2d 793. Lee, supra; Penman v. State, (1975) 163 Ind.App. 583, 325 N.E.2d 478. It is not necessary to show forcible entry, only that some physical act was used to gain entry. Gooch...