Wilson v. State, 183S10

• Decision Date: 21 November 1983
• Docket Number: No. 183S10,183S10
• Parties: Waymond WILSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1120

455 N.E.2d 1120

Waymond WILSON, Appellant, v. STATE of Indiana, Appellee.

No. 183S10.

Supreme Court of Indiana.

Nov. 21, 1983.

William L. Soards, Soards & Carroll, Indianapolis, for appellant.

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

GIVAN, Chief Judge.

Appellant was charged by way of a two-count information. Count I was for Burglary, and Count II was for Theft. Later the charge was amended to add an allegation appellant was an habitual offender.

Appellant was tried before a jury and found guilty on Counts I and II and was also found to be an habitual offender. He was sentenced to concurrent terms of imprisonment of five years on the burglary conviction and two years on the theft conviction. The sentence on the burglary conviction was enhanced by thirty years, resulting in a total term of imprisonment of thirty-five years.

The facts are these. Officer James Smith of the Indianapolis Police Department testified that at about 1:00 A.M. on the morning of June 11, 1980, he received a radio dispatch that the silent alarm at the Illinois Street Department Store, located at 2170 North Illinois Street in Indianapolis, had been triggered. Smith drove to that location and found other officers already on the scene in front of the building. He began to proceed on foot around the building to the back, where another officer had positioned himself. He testified that as he was doing so two men jumped from the roof and landed on the ground a few feet in front of him. He drew his service revolver and placed them under arrest. An immediate search of the pair produced an automatic pistol. State's Exhibit 15 was identified as a photograph of that weapon. The owner of the store, one Morris Calderon, also identified the exhibit as a photograph of the pistol he kept under the counter in the store, which he further stated was not in its usual place when he was called to the scene and checked the place where he knew the pistol should be.

Officer Smith further testified that while the two men who had been arrested were being processed at the scene, he heard another radio dispatch that there was another man on the roof. He was able to effect the capture of this man, whom he identified as appellant, on the roof of an adjacent building.

The evidence showed the roofs of the two buildings were very near the same height above the ground, slightly less than twenty feet. The distance between the two was four to five feet.

Officer Gerald Rothenbush testified that he was the officer who had positioned himself in the rear of the department store. He further testified that within a few minutes after the two men had been apprehended he saw another man on the roof of the department store. He testified he saw that man cross to the edge of the roof and crossover to the roof of the adjacent building and then disappear from view. He identified appellant as the man he observed Officer Smith bring down the ladder from the roof of the adjacent building.

Investigation of the department store premises showed there was a large, roughly chopped hole in the roof of the building. A paper sack, with a knife inside, was found on the roof. An axe was found in the store almost directly beneath the hole. Morris Calderon testified the store was not in this condition when he left it at closing time the day before; the axe was not his; that he gave no one, including appellant, permission to be in the store at 1:00 A.M. on June 11, 1980; nor did he give anyone permission to be in possession of the handgun he kept under the counter.

Appellant made a motion for a directed verdict, which was denied.

Appellant claims the evidence is insufficient to support the conviction, the verdicts are contrary to law, and the trial court erred in denying his motion for a directed verdict.

On appeal we do not reweigh the evidence nor judge the credibility of witnesses. Ward v. State, (1982) Ind., 439 N.E.2d 156; Sanders v. State, (1981) Ind., 428 N.E.2d 23; Lonson v. State, (1980) Ind., 406 N.E.2d 256.

Moreover, where the evidence of guilt is circumstantial, the same test is applied. The conviction is affirmed if the reasonable inferences drawn therefrom support the finding of the fact finder. Wells v. State, (1982) Ind., 441 N.E.2d 458; Ward, supra; Raspberry v. State, (1981) Ind., 417 N.E.2d 913. It is not necessary that we find the evidence excludes every reasonable hypothesis of innocence. Id.

Appellant's claim, with regard to this issue, is that the evidence and reasonable inferences drawn therefrom, essentially do no more than show appellant's presence at the scene or in the vicinity where the crime was committed. It is well-settled that proof of guilt beyond a reasonable doubt does not exist where the evidence does no more than show opportunity to commit the charged crime, or establish a possibility or suspicion of guilt. See, e.g., Talley v. State, (1980) Ind.App., 400 N.E.2d 1167; Briscoe v. State, (1979) 180 Ind.App. 450, 388 N.E.2d 638. Moreover, proof of presence at the scene of a crime,...