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Desloover v. State8/28/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Joseph Desloover appeals his conviction by jury of burglary as a class B felony. We reverse.
ISSUE
Whether there is sufficient evidence to support his conviction.
FACTS
In the early morning hours of January 9, 1999, Ovel Tousley was sleeping when she heard her doorbell ring. Minutes later, Tousley heard her bedroom window being broken. She took her revolver out from under her pillow, pulled back the bedroom curtain, saw 20 year-old Desloover crawling in her window and shot him. Desloover fled and was subsequently apprehended. He was charged with, among other things, burglary. The information alleged that Desloover "did break and enter the dwelling of Ovel J. Tousley . . . with the intent to commit . . . theft." (R. 7).
At trial, Dustin Whiteman, Tousley's neighbor and Desloover's friend, testified that Desloover talks about breaking into houses "every time when he gets drunk." (R. 351). Whiteman further testified that Desloover was at his house until approximately 12:30 a.m. on January 9, 1999. The two men were drinking alcohol and working on Desloover's car. Indiana State Police Trooper Jason Faulstich testified that Desloover told him that he was at a friend's house when he hurt his hand. He went next door to Tousley's house in order to use the phone. When he rang the doorbell, he heard a bang and ended up in the hospital. The jury convicted Desloover of, among other things, burglary.
DECISION
Our standard of review for sufficiency of the evidence is well settled. Neuhoff v. State, 708 N.E.2d 889, 893 (Ind. Ct. App. 1999). We neither reweigh the evidence nor judge the credibility of witnesses. Id. Rather, we examine the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom. Id. If there is sufficient evidence to support the conviction, it will not be set aside. Id.
Ind. Code ยง 35-43-2-1 provides in pertinent part that a "person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary . . . . he offense is a Class B felony . . . if the building or structure is a dwelling . . . ." Here, Whiteman testified that Desloover talks about breaking into houses every time he gets drunk. Whiteman did not testify as to Desloover's intent when Desloover talked about breaking into houses. The jury found that Desloover broke and entered Tousley's dwelling with an intent to commit theft therein.
Desloover argues that there is insufficient evidence to support his conviction. Specifically, he contends that " here is no evidence . . . that intended to commit theft inside the dwelling of the victim." Desloover's Brief, p. 13. We agree.
Intent to commit a given felony may be inferred from the circumstances, but some fact in evidence must point to an intent to commit a specific felony. Justice v. State, 530 N.E.2d 295, 297 (Ind. 1988). Intent may not be inferred from mere proof of breaking and entering alone. Id. Similarly, evidence of flight alone may not be used to infer intent, though other factors, such as the removal of property from the premises, may combine with flight to prove the requisite intent for burglary. Id.
Evidence of breaking and entering and evidence of flight are not probative unless tied to some other evidence which is strongly corroborative of the actor's intent to commit a specific felony. Id. The evidence does not need to be insurmountable, but it must provide a "'solid basis to support a reasonable inference'" that the defendant intended to comm
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