Thompson v. State

• Decision Date: 30 January 1975
• Docket Number: No. 3--374A42,3--374A42
• Citation: 321 N.E.2d 861,163 Ind.App. 129
• Parties: Gerald THOMPSON and Gregory Mootye, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 861

321 N.E.2d 861

163 Ind.App. 129

Gerald THOMPSON and Gregory Mootye, Appellants, v. STATE of Indiana, Appellee.

No. 3--374A42.

Court of Appeals of Indiana, Third District.

Jan. 30, 1975.

Dolores Goldman, Gary, for appellants.

Theo. L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Gerald Thompson and Gregory Mootye were charged with first degree burglary. The jury found them guilty of entering to commit a felony. I.C. 1971 35--13--4--5, Ind.Ann.Stat. § 10--704 (Burns 1956). They were sentenced to a term of from one (1) to five (5) years. Their appeal to this Court raises the sole issue of whether the evidence was sufficient to sustain their convictions. ¹ We conclude that the evidence was sufficient, and we affirm.

I. Evidence

When reviewing the sufficiency of the evidence, this Court cannot weigh the evidence nor determine the credibility of witnesses. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558; Walker v. State (1973), Ind.App., 293 N.E.2d 35, cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974). We will consider only that evidence most favorable to the State with all reasonable inferences which may be drawn therefrom. The conviction will be affirmed if, from that opint of view, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. McAfee v. State (1973), Ind., 291 N.E.2d 554; Taylor v. State (1972), Ind., 284 N.E.2d 775; Coffelt v. State (1974), Ind.App., 307 N.E.2d 497; Rogers v. State (1972), Ind.App., 290 N.E.2d 135.

Carl Mahone left his home at 803 Pierce in Gary, Indiana, about 12:30 or 1:00 o'clock P.M. on April 18, 1973. His home was in an orderly condition and the doors were locked. Between 4:15 and 4:30 o'clock P.M., Officers Davis and Galiger (phonetically spelled) received a radio message that a burglary was in progress at 803 Pierce. Their patrol car was only three blocks away from the reported burglary. Their marked patrol car pulled up at the side of the house on Eighth Avenue. They observed that the back screen door was open. Thompson and Mootye jumped off the back door step and started walking towards their car, but suddenly they turned abruptly and can ran in the opposite direction. Officer Davis called for Thompson and Mootye to halt, but they disregarded his command. In an attempt to pursue Thompson and Mootye, Officer Davis went around to the front of the house, and Officer Galiger went to the rear. Four other police officers had arrived at the scene. Officer Davis momentarily lost sight of Thompson as he chased him toward a neighbor's yard. Officer Davis found Thompson in the custody of Officer Drake, who had his gun drawn. Thompson was leaning with his hands stretched up against the house.

Officer Louis Thompson, Jr., one of the six Gary policemen who answered the burglary-in-progress call, observed Mootye alighting from the bottom step of the back door and running across the yard toward the alley. When Officer Thompson came up along the side of the garage looking for Mootye, he heard a noise inside the garage. He waited for Officer James Smith and then went into the garage. He testified that '. . . we told the subject to stand up and put his hands up.' They found Mootye '. . . crouched on the side of the car near the front.'

When Carl Mahone returned to his home at about 5:00 o'clock P.M., he found that his house had been rensacked. The front and back doors were standing open. Mr. Mahone testified:

'Q. Now, you said your home was ransacked, what do you mean by that?

'A. It was disarrayed. As though they were looking for something, drawers were pulled out and cabinets were...