Hill v. State

531 N.E.2d 1382, 1989 Ind. LEXIS 5, 1989 WL 412
CourtIndiana Supreme Court
DecidedJanuary 5, 1989
Docket49S00-8801-CR-37
StatusPublished
Cited by6 cases

This text of 531 N.E.2d 1382 (Hill v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. State, 531 N.E.2d 1382, 1989 Ind. LEXIS 5, 1989 WL 412 (Ind. 1989).

Opinions

GIVAN, Justice.

A jury trial resulted in appellant’s conviction of Burglary, a Class C felony, and Theft, a Class D felony, for which he received concurrent sentences of five (5) and two (2) years, respectively. He also was found to be an habitual offender for which his burglary sentence was enhanced by thirty (30) years.

The facts are: Around 3:30 on the morning of August 30, 1986, Officer Steven Swarm of the Indianapolis Police Department was patrolling in the vicinity of 56th Street and Keystone Avenue. Shortly after receiving a radio report of a possible burglary, he observed appellant removing something light-colored from his hands while ducking behind a parked truck. When Officer Swarm pulled over to investigate, the subject advised him he had been going to the bathroom. Officer Swarm detained appellant and radioed for assistance.

After other officers arrived, Officer Swarm looked around the area near the truck and inside a sidewalk planter found a [1383]*1383crowbar, a flashlight, a pair of white socks pulled inside out, and a cloth money bag containing coins. Suspecting a burglary had just been committed, Officer Swarm checked around the immediate area. He noticed a laundromat with its glass rear door broken out; inside, vending and game machines had been broken open.

Appellant was advised of his Miranda rights, whereupon he stated to Officer Swarm he would not be able to convict him of burglary because he did not catch him inside the business. Shortly thereafter, Officer Swarm pointed out to another officer the possibility of broken glass from the laundromat floor adhering to appellant’s shoes. They then heard the sound of appellant rubbing the soles of his shoes on the floor of the patrol car in which he was seated. The officers took appellant’s shoes away from him; laboratory tests later revealed the presence of glass fragments in the soles of both shoes.

A canine unit was summoned to the scene. When the police dog was told to track from the broken door of the laundromat, he led his handler across the street and around to the side of the parked truck behind which appellant first had been seen; the dog then tried to go over to the patrol car where appellant was seated.

Dick Music, owner of the burglarized laundromat, was called and upon surveying his premises noted his office had been ransacked and three coin-operated machines broken into. Among the items scattered around the office were several cloth money bags marked “Merchants National Bank” as was the one recovered from the planter near the spot appellant had been apprehended.

Appellant contends the evidence was insufficient to support the jury’s verdicts of guilty of burglary and theft. He argues that while ample evidence exists to show that someone burglarized the laundromat, there was not substantial evidence of probative value to prove that he was the perpetrator. He maintains that “aside from the biased testimony of the police officers, the evidence was totally circumstantial and does not logically infer [sic] that he committed the crimes for which he was convicted, beyond a reasonable doubt.” Appellant claims his “mere presence in the area where a crime had occurred was all that was shown, and that is not enough.”

However, a burglary or theft conviction may be sustained by circumstantial evidence alone. Jones v. State (1985), Ind., 485 N.E.2d 627. In the case at bar, the circumstances, including appellant’s suspicious conduct as observed by Officer Swarm, the close proximity of the socks, tools and money to appellant when detained, and appellant’s remark when read his rights, clearly allow the trier of fact to infer appellant’s identity as the burglar beyond a reasonable doubt. The jury could find that the socks answer appellant’s question as to why none of his fingerprints were found in the laundromat. The evidence was sufficient to support the verdict.

Appellant contends the trial court erred in admitting into evidence his statement to the effect he could not be convicted of burglary. Appellant timely filed a motion in limine to exclude the statement. The statement included an assertion that he could not be convicted because he was not caught inside the building and that he had beaten charges stemming from a prior arrest for burglary.

The trial court granted appellant’s motion as to the reference to the prior arrest but allowed into evidence the part asserting he could not be convicted in the instant case. Appellant argues his retort was more prejudicial than probative of any material issue; thus, it should have been excluded as irrelevant. He contends the ambiguous nature of his retort put him “into a perilous position in that he was forced to decide whether to testify or allow these ambiguous statements to be the subject of jury speculation.”

A trial court is accorded wide latitude determining the relevancy and thus the admissibility of evidence. Hubbard v. State (1987), Ind., 514 N.E.2d 1263. For the trial court to be given the opportunity to make final ruling on admissibility, any allegedly inadmissible evidence must be objected to [1384]*1384at trial, even when it has been ruled upon previously in response to a motion in li-mine. See Remsen v. State (1986), Ind., 495 N.E.2d 184. Here, appellant has cited us to no objection made at trial, and we have discerned none in the record; thus, no error has been preserved for our review. Id. Admission of Officer Swarm’s testimony relating appellant’s retort was not error.

Appellant contends the trial court erred in admitting the testimony of Officer Larry Kesterson, whose dog tracked a scent from the laundromat to the spot where appellant was first detained. He argues the officer’s opinion regarding whose scent the dog was allegedly following was necessarily speculative, because the dog could not be cross-examined, and that Officer Kesterson was not qualified to interpret reliably the dog’s actions for the jury’s consideration. Specifically, appellant raises the possibility that the dog was instead backtracking Officer Swarm’s scent —from the point where he apprehended appellant back to the laundromat which had been burglarized.

Although evidence of the result of the use of a tracking dog is not admissible, Brafford v. State (1987), Ind., 516 N.E.2d 45, the evidence in this case is sufficient to support the jury’s verdict without the improper evidence. We do not perceive that the jury would have been misled. The question of the speculative nature of such evidence was placed before the jury. Gill v. State (1984), Ind., 467 N.E.2d 724.

Appellant contends the trial court erred in denying his motion for continuance made the morning of the second day of trial and in denying his offer to prove that such a continuance was necessary to obtain evidence to “rebut surprise testimony.” Officer Swarm gave a deposition prior to trial in which he stated he first noticed appellant while driving down 56th Street. At trial, he testified he had been driving through a business parking lot at an angle to 56th Street.

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Hill v. State
531 N.E.2d 1382 (Indiana Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
531 N.E.2d 1382, 1989 Ind. LEXIS 5, 1989 WL 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-state-ind-1989.