Jones v. State

485 N.E.2d 627, 1985 Ind. LEXIS 1039

Opinions

DeBRULER, Justice.

This is a direct appeal from a conviction of burglary, a class B felony, .C. § 85-48-2-1 and from a habitual offender determination, 1.0. § 35-50-2-8. The case was tried before a jury. Appellant received a ten year sentence for burglary,. This sentence was enhanced by thirty years, for a total executed time of forty years, because he was determined to be a habitual offender.

Appellant raises two issues on appeal: (1) whether there was sufficient evidence to support his conviction for burglary; (2) whether there was sufficient evidence to support his habitual offender determination.

These are the facts most favorable to the State. On the evening of December 81, 1981, the victim and his wife left their home at 5:80 P.M. to attend a New Year's Eve Party at a church. They left the party for home just before midnight. As they approached their house, the victim discovered his television set on the houseside of a hedgerow that bordered the street. The television was still warm. The victim then drove to the back of the house and discovered that his door had been kicked in. Immediately thereafter, the victim noticed a van parked in front of his yard, and he observed a person loading his television set into the van. The victim accosted the person, but the person ran away. The victim recognized the person as the appellant because the appellant had been at his house two days before. Subsequently, the victim and his wife searched their house and found that it had been ransacked and that several items of property were missing. The next day the victim discovered foot tracks in the snow. One set of tracks went from the hedge to where the television had been discovered. The other set of tracks went from the victim's backdoor to the location of the television and then to the appellant's residence. The van was traced to appellant's sister. Appellant had access to the van, and he admitted that he was the person that the victim accosted.

I

Appellant argues that there was insufficient evidence to support his conviction for burglary.

This Court will not reweigh the evidence nor judge the credibility of the witnesses. Rather, we will consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom which support the verdict. If there is substantial evidence of probative value which would permit a reasonable trier of fact to find the existence of each element of the offense beyond a reasonable doubt the judgment must be affirmed. Reed v. State (1979), 180 Ind.App. 5, 387 N.E.2d. 82; Henderson v. State (1980), 273 Ind. 334, 403 N.E.2d. 1088.

A burglary or theft conviction may be sustained by circumstantial evidence alone. Willard v. State (1980), 272 Ind. 589, 400 N.E.2d. 151; Ward v. State (1982), Ind., 439 N.E.2d. 156.

Flight may be considered as circumstantial evidence of consciousness of guilt. Frith v. State (1975), 263 Ind. 100, 325 N.E.2d. 186; Manna v. State (1982), Ind., 440 N.E.2d. 473.

The evidence recited above is clearly sufficient to support his conviction for burglary.

II

Appellant argues that there was insufficient evidence to support his habitual offender determination.

At trial, appellant testified that he had been convicted of burglary in Wisconsin and that he received a sixty day jail sentence and two years probation. The evidence presented at trial was admitted into evidence at the habitual offender proceeding. During the habitual offender proceeding, a probation officer testified that appellant received a two year sentence. This testimony was in reference to the length of appellant's probation. The Wisconsin conviction was one of the two predicate felonies charged in the habitual offender count.

According to 1.C. § 85-50-2-1, " 'a felony conviction' means a conviction, in an jurisdiction at any time with respect to which the convicted person might have been imprisoned for more than one [1] year tH

Here, the status of the Wisconsin conviction as a felony was not shown. There was no evidence, certified records or other, that indicates that appellant could have been imprisoned for more than one year for the burglary conviction. Thus, the evidence does not rise to the level of sufficiency so that a reasonable trier of fact could find the existence of a felony beyond a reasonable doubt.

The conviction is affirmed; this cause is remanded for imposition of a standard sentence or a new habitual offender proceeding consistent with this opinion.

SHEPARD, J., concurs. PRENTICE, J., concurs and dissents with opinion. PIVARNIK, J., concurs and dissents with opinion in which GIVAN, C.J., concurs.