Batie v. State

464 N.E.2d 1319, 1984 Ind. App. LEXIS 2730

• Court: Indiana Court of Appeals
• Decided: June 18, 1984
• Docket: No. 4-883A280
• Status: Published

Opinions

CONOVER, Presiding Judge.

John Batie (Batie) appeals his convictions by the Marion Criminal Court of Attempted Burglary, a Class B felony,¹ and Resisting Law Enforcement, a Class A misdemeanor.

We affirm.

ISSUES

This appeal presents the following issues:

1. Whether the evidence was sufficient to prove Batie intended to commit a felony after entering the dwelling.

2. Whether the prosecution used false evidence to obtain Batie's conviction.

FACTS

At approximately 11:80 P.M. one night, Batie and a companion began knocking on the door of a dwelling house on College Avenue in Indianapolis. They took turns, one standing by a car parked across the street from this home while the other knocked. They alternated knocking for between 15 to 20 minutes. The occupants awoke, called the police and went downstairs, one carrying a loaded gun.

Batie and his companion then kicked the door in just as the police arrived. Both took off running but were pursued and caught. The occupants then identified Ba-tie and his companion as the perpetrators.

DISCUSSION AND DECISION

I.

Batie first argues there was no evidence introduced to show he intended to commit a felony after he entered the house.

While it is true proof of a mere breaking and entry does not constitute evidence of intent to commit a felony, such intent may be inferred from the time, force and manner of entry if there is no evidence the entry was made with lawful intent. Cireumstantial evidence that goes beyond the mere fact of breaking and entering may support the intent element. Blow v. State, (1983) Ind., 445 N.E.2d 1369; Anderson v. State, (1981) Ind., 426 N.E.2d 674; Carter v. State, (1976) 265 Ind. 535, 356 N.E.2d 220; Lisenko v. State, (1976) 265 Ind. 488, 355 N.E.2d 841; Bartlett v. State, (1984) Ind.App., 461 N.E.2d 1171; Vaughan v. State, (1983) Ind.App., 446 N.E.2d 1. The evidence here clearly establishes alternate knocking at the door for 20 minutes, unauthorized breaking and attempted entry, and flight from the scene. From these circumstances the trier of fact could reasonably infer Batie and his companion intended to commit a felony had they gained entry. Bortlett, slip op. at p. 2; Bailey v. State, (1982) Ind.App., 438 N.E.2d 22. There was substantial evidence on the intent element.

IL.

Batie next argues the prosecution denied Batie fundamental due process by introducing false evidence and testimony. Exhibit no. 4, a photograph taken from a window in the house looking toward the position where the witnesses testified they saw Ba-tie and his companion during the alternate knocking sequence, was taken from another window of the bedroom other than the one through which the vietims were looking that night. Exhibit no. 4 contained no tree limbs partially blocking the view. In other testimony the victims stated there were tree limbs partially blocking the view that night as they looked from another adjacent window. Further, the man testified the view shown in exhibit 4 was the exact view of the area where Batie and his companion were alternately standing while the knocking procedure took place.

Batie made no objection to the introduction of exhibit 4 nor did he move to strike the exhibit upon discovery the photograph was not taken through the same window the victims were looking that night. However, he argues reversal is required because the use of false testimony obviously denies the accused Fourteenth Amendment due process. Giglio v. U.S., (1972) 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Napue v. Illinois, (1959) 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217.

Both Giglio and Napue involved prosecuting witnesses who falsely testified under oath they had not been offered favorable treatment by the prosecution in exchange for their testimony. The United States Supreme Court in both cases said the prosecution's offer of favorable intercession was a matter going to the credibility of these witnesses and their false testimony on the subject constituted a denial of due process. On the contrary, no such situation is apparent in this case. It merely involved the position from which exhibit no. 4 was taken and whether the occupants had a clear as opposed to obstructed view of the perpetrator's street position as they alternated knocking on the door, and whether the man's testimony the photograph was taken from the exact place where they were standing that night was accurate. Such issues involve the weight of the evidence, not fundamental due process questions.

However, we cannot reach this issue. Batie made no objection to such testimony or evidence, no motion for mistrial was made nor were any of these matters mentioned in Batie's motion to correct errors. The failure to complain of alleged errors at trial in a timely fashion results in waiver of the issue. Suggs v. State, (1981) Ind., 428 N.E.2d 226; McCraney v. State, (1981) Ind., 425 N.E.2d 151. For this reason, Batie has waived this argument on appeal. We find no error.

Affirmed.

MILLER, J., concurs. YOUNG, J., dissents with opinion.

1 . IC 35-43-2-1, our burglary statute, provides:

A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelling, and a Class A felony if it results in either bodily injury or serious bodily injury to any person other than a defendant. As amended by Acts 1982, PL. 204, SEC. 36.

The attempt statute, IC 35-41-5-1 provides:

(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a class A felony.

(b) It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted. As added by Acts 1976, P.L. 148, SEC. 1. Amended by Acts 1977, P.L. 340, SEC. 22.