Opinion
No. 1-375A53.
Filed October 20, 1975.
1. APPEAL — Sufficiency of Evidence — Standard of Review. — When Court of Appeals is requested to review sufficiency of evidence, it will look only to the evidence most favorable to the State and the reasonable inferences to be drawn therefrom. p. 284.
2. APPEAL — Sufficiency of Evidence — Standard of Review. — In examining evidence presented, Court of Appeals will consider inferences drawn therefrom reasonable if there was substantial evidence of probative value presented. p. 284.
3. CRIMINAL LAW — Second Degree Burglary — Elements. — Elements of second degree burglary are: (1) breaking (2) entering (3) into building or structure other than dwelling house or place of human habitation (4) with intent to commit felony therein. p. 285.
4. CRIMINAL LAW — Inference of Intent. — Evidence of flight alone may not be used to infer element of intent to commit felony and support conviction of second degree burglary, since flight simply indicates a consciousness of guilt or fear of being apprehended on part of subject for breaking and entering as well as for burglary; however, if flight is combined with other circumstantial evidence which sustains crime charged, then flight may be used to infer guilty knowledge. p. 285.
5. CRIMINAL LAW — Intent — Inference. — Since intent to commit felony is subjective state of mind, this element of second degree burglary must be inferred from circumstances of particular case. p. 285.
6. CRIMINAL LAW — Burglary — Intent. — To establish second degree burglary, it is not necessary to show that actual felony had been committed but only that defendant had the intent to commit felony. p. 285.
7. CRIMINAL LAW — Burglary — Sufficiency of Evidence. — Evidence, inter alia, that defendant was wearing socks on his hands when he broke door to building and that he fled when ordered to stop by police officer, was sufficient to establish defendant's intention to commit felony after he gained entrance into structure and sustain conviction of second degree burglary. p. 286.
Appeal from conviction of Second Degree Burglary.
From the Boone Superior Court, Paul H. Johnson, Jr., Judge.
Affirmed by the First District.
Donald R. Peyton, of Lebanon, for appellant.
Theodore L. Sendak, Attorney General, Lawrence B. O'Connell, Deputy Attorney General, for appellee.
Defendant-appellant, Long, appeals from his conviction of second degree burglary, IC 1971, 35-13-4-4, Ind. Ann. Stat. § 10-701 (Burns 1956), contending the evidence was not sufficient on the element of intent to commit a felony therein.
We affirm.
The facts most favorable to the State are: On May 10, 1973, defendant was observed outside the Model Sports Center in Lebanon, Indiana, by Officer Large of the Lebanon Police Department. The officer saw defendant first look around and then proceed to throw a large piece of concrete through the lower pane of the Sports Center's front door. Defendant again looked around, stepped through the broken part of the door, and then dropped his right shoulder down to go through the opening. At that time, the officer identified himself as a police officer and ordered defendant to stop.
After warning the subject, the subject fled. The officer again warned the subject, but as he continued to run, the officer shot him. The officer's testimony disclosed that defendant had a man's sock covering one hand and another sock was lying in the gutter.
When this Court is requested to review the sufficiency of the evidence, we will look only to the evidence most favorable to the State and the reasonable inferences to be drawn [1, 2] therefrom. Martin v. State (1974), 262 Ind. 232, 314 N.E.2d 60; Keyton v. State (1972), 257 Ind. 645, 278 N.E.2d 277; Cabell v. State (1974), 160 Ind. App. 406, 312 N.E.2d 142; Hauk v. State (1974), 160 Ind. App. 390, 312 N.E.2d 92; Caywood v. State (1974), 160 Ind. App. 346, 311 N.E.2d 845. In examining the evidence presented, this Court will consider inferences drawn therefrom reasonable if there was substantial evidence of probative value presented. Birkla v. State (1975), 263 Ind. 37, 323 N.E.2d 645, Allbritten v. State (1974), 262 Ind. 452, 317 N.E.2d 854; Releford v. State (1975), 163 Ind. App. 534, 325 N.E.2d 214.
The elements of second degree burglary are: (1) breaking (2) and entering (3) into a building or structure other than a dwelling house or place of human habitation (4) with [3] intent to commit a felony therein. Cook v. State (1973), 258 Ind. 667, 284 N.E.2d 81; Reas v. State (1975), 163 Ind. App. 316, 323 N.E.2d 274; Gorbett v. State (1974), 162 Ind. App. 164, 318 N.E.2d 592.
Defendant contends that evidence of breaking and entering, without more, is not sufficient to prove an intent to commit a felony. Faulkner v. State (1973), 260 Ind. 82, 292 [4] N.E.2d 594; Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795; Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Nichols v. State (1973), 157 Ind. App. 605, 301 N.E.2d 246. Similarly, evidence of flight alone may not be used to infer the element of intent, since flight simply indicates a consciousness of guilt or fear of being apprehended on the part of the subject for breaking and entering as well as for burglary. Faulkner v. State, supra. However, if flight is combined with other circumstantial evidence which sustains the crime charged, then flight may be used to infer a guilty knowledge. Sargent v. State, supra.
Since intent is a subjective state of mind, this element must be inferred from the circumstances of the particular case. Chapman v. State (1975), 163 Ind. App. 137, 321 [5, 6] N.E.2d 863; Lamb v. State (1974), 162 Ind. App. 181, 318 N.E.2d 587; Martin v. State (1973), 157 Ind. App. 465, 300 N.E.2d 671; Sargent v. State (1973), 156 Ind. App. 469, 297 N.E.2d 459. It is not necessary to show that an actual felony has been committed, only that the defendant had the intent to commit a felony. Gorbett v. State, supra; Gibson v. State (1973), 158 Ind. App. 575, 303 N.E.2d 666.
In the case at bar, Officer Large testified that defendant wore a sock on one hand and another sock was lying beside him in the gutter. A jury could reasonably infer that [7] covering one's hands with socks in May was for the purpose of avoiding detection in the commission of a felony. Further, it was evidence of appellant's intention to commit a felony after he had gained entrance into the structure. The jury could then infer from the defendant's subsequent flight his guilty knowledge of the crime charged.
We must conclude that the evidence above related gives rise to an inference that the defendant was attempting to avoid detection. Such inference is entirely reasonable and supported by substantial and probative evidence.
No reversible error having been demonstrated, the judgment of the trial court is affirmed.
NOTE. — Reported at 335 N.E.2d 631.