Smith v. State, 43S00-8602-CR-174

• Decision Date: 24 June 1987
• Docket Number: No. 43S00-8602-CR-174,43S00-8602-CR-174
• Citation: 508 N.E.2d 1279
• Parties: Erwin "Bo" SMITH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1279

508 N.E.2d 1279

Erwin "Bo" SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 43S00-8602-CR-174.

Supreme Court of Indiana.

June 24, 1987.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant for Burglary, a Class C felony, and Theft, a Class D felony. He received a five (5) year sentence, which was enhanced by thirty (30) years by reason of a finding that appellant was an habitual offender.

The facts are: On June 17, 1985, Darrell Bales, owner of Bales Butcher Shop, located at 106 East Main Street in Syracuse, Indiana, found that the glass door to his shop was broken and that several packages and cartons of cigarettes were missing from the shop, along with approximately fifty dollars in quarters, dimes and nickels.

Police arrested Todd Manges and subsequently obtained a search warrant for his apartment. During the search, police discovered approximately three hundred packs of cigarettes, seventy-two to seventy-three dollars in change and several tire irons. Bales was taken to Manges' apartment where he observed that the cigarettes were similar in the amount and brands of those missing from his shop.

Manges pled guilty to the charge of theft with respect to the burglary of Bales Butcher Shop. Manges testified at appellant's trial that he had discussed with appellant that he was behind in his support payments and needed money. As a consequence, on June 17, 1985, at approximately 1:00 a.m., Manges and appellant went to Bales' shop and, as Manges acted as a lookout, appellant broke the glass door with a tire iron.

Manges heard a car approaching and fled from the shop to his apartment. Appellant remained at the shop, then returned to Manges' apartment ten to fifteen minutes later where he told Manges that he had obtained a garbage bag full of cigarettes and that he had left a bag of money behind the cash register in the shop. Manges returned to the shop, obtained the money and brought it back to the apartment.

Manges testified that his plea bargain occurred before he was asked to testify in appellant's trial, so he was not motivated to testify by any prospect that his cooperation with police would result in a lesser charge.

Appellant's testimony directly contradicts that of Manges. Appellant testified that he was in bed asleep with his girl friend at Manges' apartment from approximately 10:00 p.m. to 8:00 a.m. the night of the burglary, and that he knew nothing of the incident until the police knocked on the apartment door at approximately 8:00 or 9:00 the morning of June 17.

Dawn Harwood, appellant's girl friend, testified that she and appellant talked in bed from approximately 10:00 in the evening until 1:00 or 3:00 in the morning and slept until approximately 8:00 a.m. She stated that there was no time during the night of the burglary that appellant was not in the apartment.

The jury also heard testimony from Steven Caudill who shared a six-man section of the Kosciosko County jail with appellant. Caudill was serving time for burglary and had previously been jailed for armed robbery and burglary. Caudill testified that he had discussed the burglary of Bales Butcher Shop with appellant. Appellant stated that he entered the shop through the broken glass door, that Manges was with him at the time, that the burglary was not really worth it because all he got was cigarettes and some change, and that he believed he would not be convicted...