Ware v. State, 172A26

• Citation: 284 N.E.2d 543,152 Ind.App. 582
• Decision Date: 27 June 1972
• Docket Number: No. 2,No. 172A26,172A26,2
• Parties: Randal WARE, Appellant, v. STATE of Indiana, Appellee
• Court: Indiana Appellate Court

Page 543

284 N.E.2d 543

152 Ind.App. 582

Randal WARE, Appellant, v. STATE of Indiana, Appellee.

No. 172A26.

Court of Appeals of Indiana, In Banc, Division No. 2.

June 27, 1972.

David F. McNamar, Steers, Klee, Sullivan & LeMay, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee. WHITE, Presiding Judge.

This appeal presents three issues:

1. Whether there was sufficient evidence to sustain defendant's conviction.

2. Whether the identification confrontation denied defendant his constitutional rights.

3. Whether defendant was denied his constitutional right to representation by counsel.

Defendant-appellant (Ware) was tried without a jury on an affidavit (information) charging him with first degree burglary. Found guilty as charged, he was sentenced, pursuant to Ind.Ann.Stat. § 10--701 (Burns 1956 Repl.), IC 1971, 35--13--4--4, to the Indiana Reformatory for an indeterminate period of not less than ten years nor more than twenty years. ¹ Some eighteen days after being sentenced he filed, pro se, a long-hand motion for new trial, which was verified by his own oath, charging that he was denied his constitutional right to counsel in that he did not see his court-appointed Public Defender (not his attorney of record here) prior to the day of his trial and defendant had no time to talk to him and 'no way to relate my case to him before my trial'. Ware was confined to the Marion County jail and his defender did not visit him. Forty- two days after Ware filed his pro se motion his Public Defender filed a motion to correct errors (on the sixtieth day after sentencing). The defender's motion prayed for a new trial on the grounds that the finding of guilt was not sustained by sufficient evidence and was contrary to law. The memorandum appended thereto asserted there was no proof of intent to commit a felony and that 'defendant's rights were not strictly observed' in the 'on the scene confrontation between the defendant and the alleged occupant of the dwelling.' No mention was made in that motion of Ware's pro se contention of inadequate representation.

On the date of its filing by the Public Defender the motion to correct errors was overruled and Ware's present attorney was appointed to prosecute this appeal. Neither a denial of the allegations of the verfied pro se motion nor any other response thereto appears at any place in the record. Nor does the record show that it was ever everruled, sustained, or stricken.

The evidence most favorable to the State supports this version of the facts: On the morning of May 14, 1971, Mary Jane Myers observed defendant and another man ringing the bell next door. Mrs. Myers saw the two men then come to her own rear door and ring the bell. Mrs. Myers did not answer the door, in hope that the two men would leave. Instead, she saw them remove the moulding around the glass of the door, remove the glass, and enter the house. Mrs. Myers phoned the police as the men were removing the moulding and glass.

The men then went to the bedroom, where she saw them moving furniture and placing it on the bed. At this point mrs. Myers ran from the house and waited for the police to arrive.

Within minutes the police drove up and as they did so defendant and the other man ran from Mrs. Myers' yard. The police chased them on foot. Defendant was ultimately found hiding in a garage. The two men were returned immediately to the scene of the break-in, where Mrs. Myers identified them as the two men who entered her house.

When Mrs. Myers re-entered her house she found that three wigs were missing. Police officers later found the wigs on the ground outside the Myers' house. Mrs. Myers testified that she had not given defendant or his companion permission to enter her house or exercise control over her property.

I.

The foundation of defendant's argument that the evidence was insufficient to sustain his conviction is his contention that there was no evidence of intent to commit a felony ² in that there was no evidence that he committed or attempted to commit a felony after gaining entrance to the house. He says that the evidence does not show how Mrs. Myers' wigs got out-side the house and there was no evidence that they had any value. In support of his 'value' argument appellant cites Burrows v. State (1894), 137 Ind. 474, 475, 37 N.E. 271, which holds 'that without proof of the value of stolen property, there can be no conviction for larceny.' That case further holds that '(i)t is essential to prove the value of the property alleged to have been stolen, in order to determine the grade of the offense, and the penalty to be imposed'. ³ No such reason exists when the charge is breaking and entering with intent to commit theft. The value of the goods intended to be stolen is not an element of the crime and is no aid in establishing the degree of the crime. Pacelli v. State (1929), 201 Ind. 455, 458, 166 N.E. 649; Suter v. State (1949), 227 Ind. 648, 653, 88 N.E.2d 386. Nor is it necessary that anything actually be stolen. Ibid.

In support of his contention that there is insufficient evidence of intent to commit theft appellant cites and quotes Easton v. State (1967), 248 Ind. 338, 343, 228 N.E.2d 6, in which a burglary conviction was reversed on that ground. What the Supreme Court said in rejecting a similar argument in Davis v. State (1968), 251 Ind. 133, 136, 239 N.E.2d 601, 603, is pertinent here:

'In Easton, supra, the defendant was discovered in another's apartment watching television. The door lock had been broken and a record player was found unplugged, with records stacked upon it. The defendant left leisurely, offering to pay for the lock. In holding that these facts were insufficient to sustain a conviction requiring proof of breaking and entering with intent to commit a felony, this Court said at page 12 of 228 N.E.2d:

'The intent being a primary element of the offense . . . we are of the opinion that such an issuable fact may not be inferred from proof alone of the breaking and entering.'

'In reaching the decision, the Court emphasized the operative facts involved: that the defendant knew the owner of the apartment, that he was sitting watching television, that he left leisurely and that he made no attempt to flee or hide.

'A recent case, Kondrup v. State (1968), 250 Ind. 320, 235 N.E.2d 703, . . . stated that in light of the decision in easton, supra, 'we must look to the evidence other than that concerning the breaking and entering alone to determine if there was sufficient evidence to show an intent to commit a felony.'

'In examining such evidence in the instant case, we find that the following facts are sufficient to sustain the jury's finding that the Appellant entered with intent to commit a felony; that he entered the Reynolds' home without their consent; that he was seen 'going through something'; and that a 'clinking' sound was heard in the hallway where coins were later found. Further, Mr. Reynolds' wallet was taken from his trousers that evening and later found and returned to him. The evidence also reveals that upon being discovered, the Appellant jumped through the kitchen window and in so doing suffered several lacerations.

'An old case involving a stringly similar situation found that evidence such as outlined above was sufficient to sustain a conviction requiring an attempt to steal. In that case, Burrows v. State (1882), 84 Ind. 529, a man was awakened by a noise made by the defendant, who was in his bedroom, and upon being discovered, the defendant escaped through an open window. It was discovered that the victim's trousers, containing nothing, had been taken during this period and were later found and returned to him. This Court said at page 533 of 84 Ind.:

'We are of the opinion . . . that the facts and circumstances were abundantly sufficient, . . . to authorize the jury to find that the appellant then and there attempted to commit (larceny).'

'In another similar case, the defendant was discovered going through the drawers of a bookcase and then attempted to escape by the back way of the building. This Court found these facts sufficient to sustain a finding that the defendant entered and attempted to steal, which offense also includes an intent to steal. Bloch v. State (1903), 161 Ind. 276, 68 N.E. 287.

'It is well established that the issue of intent is for the jury to determine. See: Kondrup v. State, supra; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537; Bleiweiss v. State (1919), 188 Ind. 184, 119 N.E. 375, 122 N.E. 577. Further, if two reasonable inferences arise from circumstantial evidence--one of guilt and one of innocence--this Court will not determine which inference controls, that being within the province of the jury. Shutt v. State (1954), 233 Ind. 169, 117 N.E.2d 892.

'The jury can make a finding of intent based on the surrounding circumstances of the case, especially where, as in the case at bar, the defendant was seen in or leaving the pemises and property from the premises was later found elsewhere. (Our italics). Heacock v. State (1968), 249 Ind. 453, 233 N.E.2d 179; Wojcik v. State (1965), 246 Ind. 257, 204 N.E.2d 866.'

Not only were there no contra-indications of intent to steal present in this case (such as in Easton where defendant knew the owner and was watching television when discovered and left leisurely), but in this case there were also the following circumstances, in addition to the breaking and entering, which are sufficient to sustain a reasonable inference of intent to commit theft: Two men, one of whom Mrs. Myers testified was the defendant Ware, were seen in the house moving furniture so as to gain entry to the bedroom; Mrs. Myers' wigs, which had been in the bedroom, were missing after the departure of the two men; defendant and the other man were seen fleeing from Mrs. Myers' residence; defendant was found hiding in a nearby garage, and the missing wigs were...