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09/15/87 ALFRED WILLIAMS v. STATE INDIANA

Filed: September 15, 1987.

ALFRED WILLIAMS, JR., APPELLANT (PETITIONER BELOW)
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW)



APPEAL FROM THE FOUNTAIN COUNTY CIRCUIT COURT, The Honorable Vincent F. Grogg, Judge, Cause No. 84 S 153.

Pivarnik, J., Shepard, C.j., Givan, and Dickson, JJ., concur. DeBruler, J., concurs in result without separate opinion.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant, Alfred Williams, Jr., was convicted by a Fountain County jury of burglary, a class B felony, and theft, a class D felony. The same jury then determined Appellant was a habitual offender. The trial court sentenced Appellant to ten (10) years for burglary, and two (2) years for theft, the sentences to run consecutively. The burglary sentence was enhanced by thirty (30) years based on the habitual offender finding. In this direct appeal, Appellant raises the following issues for our review:

1. sufficiency of the evidence;

2. error in admitting evidence of a co-perpetrator's prior statement;

3. error in allowing a State's witness to testify; and

4. error in denying Appellant's motion for a mistrial.

I

First, Appellant challenges the sufficiency of the evidence supporting his convictions for burglary and theft. Specifically, Appellant claims there was no direct evidence linking him to this crime. Our standard of review when sufficiency of the evidence is challenged on appeal is a narrow one. We do not reweigh the evidence nor Judge the credibility of the witnesses. Rather, we consider only the evidence favorable to the State and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value supporting the conviction, the jury's determination will not be disturbed. Tyra v. State (1987), Ind., 406 N.E.2d 1100, 1102; Atkinson v. State (1986), Ind., 498 N.E.2d 389, 390. While the State must sustain its burden of proof on each element of an offense charged, the elements may be established by circumstantial evidence and the logical inferences drawn therefrom Warner v. State (1983), Ind., 455 N.E.2d 355, 357. It is well settled that on review this Court does not have to find that circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence but only that an inference may reasonably be drawn therefrom which supports the jury's finding. Id. However, mere presence at the scene of the crime and an opportunity to commit the crime are not sufficient to sustain a conviction. Janigon v. State (1982), Ind., 429 N.E.2d 959, 960-61.

The facts presented to the jury are as follows. On November 28, 1984, Dorothy Smith's residence in rural Fountain County was burglarized. The burglary occurred sometime between 8:30 a.m., and 5:30 p.m. A television set and stereo were taken in the burglary.

At 12:30 p.m. on November 28, 1984, Mark Dewlen, another rural Fountain County resident, observed a yellow two-door Cadillac pull into his drive. The driver backed the car out of the drive and stopped to talk with a U.S. Mail courier before driving away. Dewlen observed three black men in the car.

Anita Fairchild, a U.S. Mail courier, observed a yellow Cadillac exiting the Dewlen driveway. The car stopped next to her Jeep and the driver asked her for directions to Interstate 74. Fairchild testified the three occupants of the car were black. She stated the driver wore a black felt hat and two gold earrings in his left ear. The car had no visible license plate. Fairchild became suspicious and notified the Fountain County Sheriff's Department. Approximately one and a half hours later, the yellow Cadillac passed Fairchild's mail Jeep from the opposite direction traveling at a high rate of speed.

At 3:30 p.m. on November 28, 1984, a Danville, Illinois police officer observed Appellant and two other black men in Appellant's yellow Cadillac. The car was traveling west toward Danville on State Road 136, coming from the direction of Fountain ...


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