APPEAL FROM MARION COUNTY SUPERIOR COURT CRIMINAL DIVISION, ROOM 1, The Honorable Jay B. Haggerty, Special Judge, Cause No. CR 85-224A.
Givan, J., Shepard, C.j. and Pivarnik, J., concur. DeBRULER, J., concurs and Dissent with separate opinion. Dickson, J., concurs in result without separate opinion.
A jury trial resulted in a conviction of appellant of Attempted Burglary, a Class B felony, and Resisting Law Enforcement, a Class A misdemeanor. Appellant received sentences of fifteen (15) years and one (1) year respectively, to be served concurrently.
The facts are: In the early morning hours of November 19, 1985, Crystal Turner was awakened by the sound of breaking glass. She and her son investigated and saw a man she knew by the nickname "Sharp" breaking a window in a neighboring apartment. He would swing at the window, step back to see if anyone was looking, then step forward and swing again. He then walked away and came back to the broken window. Mrs. Turner called the police. Police officer Philip Smiley arrived while appellant was still near the scene of the crime. As Smiley got out of his car, appellant was walking toward him. Smiley was in a marked car and in uniform. He called to appellant to stop; however, appellant turned and ran. Another police officer intercepted appellant who again reversed his direction and ran toward Officer Smiley who arrested him.
Immediately after his arrest Mrs. Turner identified appellant as the person she saw breaking the window. The broken window was in the apartment of Geneva Alexander. She testified that she knew appellant but had not given him permission to enter her apartment.
Appellant claims he was denied due process as a result of the trial court's failure to instruct the jury that the specific intent to commit the crime of burglary is an essential element of attempted burglary and that knowingly or intentionally is an essential element of resisting law enforcement. Appellant cites the case of Smith v. State (1984), Ind., 459 N.E.2d 355, in which this Court stated that it was fundamental error to fail to instruct a jury on the element of specific intent in an attempted murder case.
We find the position to be untenable that the jury could have been misled by the instructions given in this case. The court gave its Instruction No. 32, which reads as follows:
"The Defendant is charged in Count One with Attempted Burglary. To convict the defendant, the State must have proven beyond a reasonable doubt each of the following elements:
2) knowingly and intentionally
3) engaged in conduct as described in the Information and that such conduct was a substantial step toward the commission of the crime of Burglary.
Burglary, with which the defendant is charged to having attempted to commit in Count One is defined as follows:
'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 B Felony . . . . if the ...