Strosnider v. State, 1-1180A321

• Decision Date: 14 July 1981
• Docket Number: No. 1-1180A321,1-1180A321
• Citation: 422 N.E.2d 1325
• Parties: Kevin L. STROSNIDER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1325

422 N.E.2d 1325

Kevin L. STROSNIDER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-1180A321.

Court of Appeals of Indiana, First District.

July 14, 1981.

Jerry J. Lux, Terry, Robison & DePrez, P.C., Shelbyville, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Kevin L. Strosnider, a minor tried as an adult, appeals his conviction for burglary, a Class C felony: criminal trespass, a Class A misdemeanor: and criminal mischief, a Class B misdemeanor. We affirm.

Strosnider argues that there was no probable cause to support the charge of attempted burglary of a dwelling, a Class B felony. This charge was dismissed at the close of the State's evidence, but was part of the basis for trying Strosnider as an adult. He also contends that the order waiving him from juvenile to superior court lacked specific findings to support the waiver. Strosnider challenges the sufficiency of the evidence to support his conviction for criminal mischief, arguing that the State failed to show the value of the property damaged. Finally, Strosnider asserts that the court erred in sentencing him for criminal mischief and criminal trespass because these offenses are lesser included offenses of burglary.

The facts favorable to the State reveal that early in the morning of November 14, 1979, Strosnider was apprehended in a crawlspace beneath an attorney's office in Shelbyville, Indiana. His arrest resulted when the resident of an apartment located above the office summoned police because she heard noises downstairs. The resident also reported that someone tried to open her door, which was located within the attorney's office.

The police discovered that the door to the attorney's office had been forced open and that the files and desks in the office had been opened. Files were scattered around the office and a medallion belonging to the attorney was found in the crawlspace. A set of keys to the attorney's car were in the defendant's possession when he was searched at the police station. Both the medallion and the keys were in the attorney's desk when he closed his office the preceding day.

Criminal charges were filed against Strosnider on November 11, 1979, but the case was referred to juvenile court on December 7, 1979, after it was discovered he was a minor. On December 14, 1979, the defendant filed a petition to establish delinquency and the State filed a petition to waive him to criminal court for trial as an adult. After a hearing, the waiver petition was granted on January 9, 1980, and an information was filed against Strosnider on January 17, 1980 charging him with burglary, a Class C felony; criminal trespass, a Class A misdemeanor; criminal mischief, a Class B misdemeanor, and attempted burglary of a dwelling, a Class B felony. In response to the information, Strosnider filed a motion to dismiss on the basis that the waiver order was defective because it did not adequately explain the reasons for waivers. The State filed an amended waiver order which was granted and Strosnider's motion to dismiss was denied on February 27, 1981. The amended order reads in relevant part:

"THE COURT HAVING had it brought to its attention that its order of January 9, 1980, was incomplete in certain respects, hereby files this Amended Order.

THE VERIFIED PETITION to waive Kevin Strosnider to criminal court was heard on January 7, 1980. Said petition alleged that Kevin Strosnider, seventeen (17) years of age, is a child within the provisions of IC 31-6-1-2.

AT SAID HEARING substantial evidence was presented showing that the offenses charged included burglary, criminal trespass, criminal mischief and attempted burglary of a dwelling, were committed and would have amounted to a crime if committed by an adult. That there is probable cause to believe that the child committed the above mentioned offenses and that said child is beyond the rehabilitation under the regular statutory juvenile system, and that it is in the best interest of the public welfare and security that said child stand trial as an adult.

THE EVIDENCE PRESENTED was that Kevin Strosnider was found within the premises of the Stephen Moberly Law Office, at night. The said law office having been broken into that same night, and that Kevin Strosnider additionally tried to break into the dwelling of Susan Glass which entryway was contained within the law office of Stephen Moberly. There was also evidence concerning the felonious intent with which Kevin Strosnider entered said building.

AND IT FURTHER APPEARING to the court, after consideration of the report of Mary Bailey, Juvenile Probation Officer, the prior record of repetitive offenses of Kevin Strosnider, which included several offenses within the past few years his character, the type of his offenses being aggravated in nature, and other relevant factors that Kevin Strosnider is not a proper subject for proceedings under the Juvenile Code and that he would not be amenable to the care, treatment and training program available through the juvenile system.

IT IS HEREBY ORDERED that Kevin Strosnider be and hereby is, declared not to be a proper subject for proceedings under the Juvenile Code and that he is referred to the Prosecutor's Office for prosecution as an adult pursuant to IC 31-6-2-4. The subject is waived over to criminal jurisdiction and is to be referred for prosecution as to the charges of burglary, criminal mischief, criminal trespass and attempted burglary of a dwelling.

KEVIN STROSNIDER IS HEREBY ORDERED to be held in the Shelby County Jail pending the filing of a criminal case in Shelby Superior Court.

Strosnider had a bench trial and was found guilty of the charged crimes, except for the charge of attempted burglary of a dwelling which was dismissed at the close of the State's evidence. The court sentenced Strosnider to five years for the burglary, and one year for criminal trespass, and sixty days for criminal mischief, with the sentences to be served concurrently.

Turning to Strosnider's assertion that there was no probable cause to support the charge of attempted burglary of a dwelling, we find no error. Probable cause exists when the facts and circumstances within an officer's knowledge, which are based upon reasonably trustworthy information, are sufficient to warrant a reasonable man's belief that a crime has been or is being committed. Capps v. State, (1967) 248 Ind. 472, 229 N.E.2d 794. This standard requires more than a mere suspicion, but does not require proof beyond a reasonable doubt. See generally West's AIC 31-1-6-1 and 31-1-4-1 (Commentaries). Strosnider implies in his argument that the trial court's dismissal of the attempted burglary of a dwelling charge indicates the lack of probable cause for the offense from the outset of the case. Applying the standard for probable cause, a dismissal of charges does not necessarily imply a lack of probable cause and the facts in this case support the trial court's finding of probable cause in the waiver order. Strosnider broke into, and entered, the attorney's office; in this office he intended to commit theft as evidenced by the removal of items from the attorney's desk. While inside the office, he attempted to open the door to an apartment located in the building. He stopped when he heard the apartment's resident approaching. These facts were sufficient to warrant the trial court's belief that Strosnider, acting culpably, committed a substantial step towards breaking and entering the apartment with felonious intent. Ind.Code 35-41-5-1 and Ind.Code 35-43-2-1.

Strosnider next argues that the waiver order was not specific enough to satisfy the requirements of Ind.Code 31-6-2-4, which specify the criteria for waiver of jurisdiction from juvenile court to criminal court. Subsection (h) of ...