Tyler v. State, 1--1172A94

• Decision Date: 14 February 1973
• Docket Number: No. 1--1172A94,1--1172A94
• Citation: 292 N.E.2d 630,155 Ind.App. 252
• Court: Indiana Appellate Court
• Parties: Charles L. TYLER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

Page 630

292 N.E.2d 630

155 Ind.App. 252

Charles L. TYLER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--1172A94.

Court of Appeals of Indiana, First District.

Feb. 14, 1973.

Rehearing Denied March 22, 1973.

Ronald Warrum, John D. Clouse, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Stephen J. Cuthbert, Deputy Atty. Gen., for plaintiff-appellee.

LOWDERMILK, Judge.

Defendant-appellant was charged with second degree burglary. Trial was had by jury which became hopelessly deadlocked. A second trial was held and the jury returned a verdict of guilty. Appellant timely filed his Motion to Correct Errors and, from the overruling of that motion, this appeal is taken.

The evidence most favorable to the State reveals that Audio-Visual Repair Service, a partnership, located in the city of Evansville, Indiana, was burglarized. The last employee to leave the store after closing testified that everything was in order, doors secured, and an alarm system was in operation. About 11:25 P.M. an alarm was received by the electronic protection service. The operator plugged into the protection system and heard activity in the store and 'Negro' voices.

When the police arrived at the scene they discovered the rear door had been pried open and the owner found about $300 worth of merchandise gone. The police subsequently patrolled the area and noticed a car moving slowly with its lights off on an adjacent street. The patrol car gave chase with siren on and red lights flashing. The slowly moving car turned on its lights and eventually stopped, whereupon persons jumped from the subject automobile and began running away.

One officer gave chase and fired his revolver into the air. At this point the appellant stopped and lay down on the ground. The other policeman apprehended the driver and both the driver and the appellant were handcuffed and placed under arrest.

The officer noticed a large screw driver in the back seat and three smaller screw drivers and a penlight next to the driver in the car. The officer took the keys from the ignition and unlocked the trunk of the car and found audio-visual equipment which was identified as being taken from the robbed store. The merchandise was taken into police custody and later introduced into evidence at trial.

Appellant first contends that the verdict of the jury was not supported by sufficient evidence, and secondly, contends that the evidence was all circumstantial, did not directly show that the defendant committed the crime, and was not so conclusive as to exclude every reasonable hypothesis of innocence and did not show that the defendant was guilty beyond a reasonable doubt.

Appellant relies on the case of Miller v. State (1968), 250 Ind. 338, 236 N.E.2d 173, where our Supreme Court discussed the issue of sufficiency of circumstantial evidence as follows:

'We have recently reiterated that the State may resort to circumstantial evidence to prove essential elements of the crime charged; but in order for that circumstantial evidence to be adequate, all reasonable hypothesis of innocence must be excluded. . . .'

The State of Indiana, appellee, points out that this court on appeal should look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. See McMinoway v. State (1972), Ind.App., 283 N.E.2d 553. This court cannot weigh the evidence, but can only examine the evidence to determine whether there was sufficient evidence to support the verdict of the jury or the finding of the trial court. Yeley v. State (1972), Ind.App., 286 N.E.2d 183, 32 Ind.Dec. 317.

The State contends that the protection service operator was, in effect, a witness to the crime as a result of her listening to the burglary in progress and hearing 'Negro' voices.

The State also contends that a conviction can be based on circumstantial evidence if it is of sufficient probative value as to cause a reasonable man to believe said evidence. The State argues that it was reasonable for the jury to believe that the 'Negro voices' heard by the operator belonged to the defendants who were found near the scene in possession of burglar tools and merchandise missing from the store.

It is our opinion that the evidence was sufficient to sustain the verdict of the jury. Indiana courts have firmly established the rule that the State may use circumstantial evidence to prove the essential elements of the crime charged. Our Supreme Court, in the case of Christen v. State (1950), 228 Ind. 30, 37, 89 N.E.2d 445, 447, stated as follows:

'A jury must believe beyond a reasonable doubt that the accused committed the crime with which he was charged, and where the evidence is circumstantial, as it was in this case, it must be of so conclusive a character and point to surely and unerringly to the guilt of the accused as to exclude every reasonable hyphesis of his innocence. However, this rule is for the guidance of trial courts and juries and should be observed by them. It is not for this court. This court has upon it a duty to consider, not to weigh, the evidence in this case for the purpose of determining whether there is any substantial evidence of probative value from which a jury reasonably could have inferred that the appellant was guilty of the offense charged. (Citing cases.) . . .'

See, also, Hardesty v. State (1967), 249 Ind. 518, 231 N.E.2d 510; Coach v. State (1968), 250 Ind. 226, 235 N.E.2d 493; Melvin v. State (1968), 249 Ind. 351, 232 N.E.2d 606.

In Mims et al. v. State (1957), 236 Ind. 439, 140 N.E.2d 878, the court held that:

'Exclusive possession of property shown to have been stolen, shortly after the larceny, unquestionably is a circumstance to be considered by the jury, and if proof is made that such larceny was recently committed and there is no evidence to explain the possession on the defendants, a larceny conviction based upon such evidence will be sustained on appeal. . . .'

The circumstantial evidence in this case has been set out herein. It is our opinion that the evidence was of such probative value as to support the reasonable inference of guilt on the part of the defendant. We find no reference to any other reasonable hypothesis offered by the defendant.

Appellant next contends that the evidence found in the trunk and introduced at trial was a product of an illegal and unlawful search and seizure and said evidence should not have been admitted at trial and defendant's motion to suppress that evidence should have been sustained.

In his brief, appellant cites and quotes extensively solely from Paxton v. State (1970), Ind., 263 N.E.2d 636, to support his contention. While Paxton, supra, did thoroughly discuss the area of search and seizure and set out stringent guidelines, we find that the case tends to support the position of the State. After quoting from Chambers v. Maroney (1970), 399 U.S. 48, 90 S.Ct. 1979, 26 L.Ed.2d 419, Justice Hunter stated the rule as follows:

'Thus, due to the exigent circumstances existing where one is arrested while in an automobile, it may be searched entirely without regard to the officer's safety or the possible destruction of evidence, provided there is probable cause to believe that seizable items are there contained.'

Paxton, supra.

The law is that a warrantless search and seizure is lawful if the officer has probable cause to believe that items which are contained in the automobile are such that the officer is entitled to seize. See, Isaac v. State (1971), Ind., 274 N.E.2d 231; United States v. Garner (1971), 6 Cir., 451 F.2d 167; Chambers, supra; Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; and Paxton, supra.

It is our opinion that the facts of the instant case afforded the officers probable cause to search the automobile in question. The automobile was observed near the scene of the burglary; it was being driven in a suspicious manner; the appellant fled from the scene and stopped only after the officer fired his gun; burglary tools were found in plain view in the car. A large screw driver found in plain view on the rear seat of defendant's car fit into the damaged portion of the door facing where the door had been pried open for entry into the building. Also, electrical appliances had been removed from the store and it was probable they were locked in the car's trunk. These and other facts certainly gave the officers probable cause to believe that seizable evidence of the burglary was present in the car.

For the above stated reasons, the evidence in question was properly admitted into evidence and appellant's Motion to Suppress was properly overruled.

Appellant next contends that reversible error was committed when the trial court gave State's Instruction No. 3 to the jury over defendant's written objection. State's Instruction No. 3 reads as follows:

'It is the law of Indiana that every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit, tried and...