Faulkner v. State ( 1989 )

HOFFMAN, Presiding Judge.

Appellant Gary L. Faulkner appeals a jury conviction of attempted burglary, a Class C felony. The trial court sentenced Faulkner to 36 years, 6 years for attempted burglary enhanced by 80 years upon an habitual offender finding.

The charging information, omitting formal parts, stated:

"On or about March 27, 1988, in Fulton County, State of Indiana, Gary L. Faulkner did attempt to commit the crime of burglary by knowingly trying to force open the door of the Shiloh Village Store located at 204 West 18th Street, Rochester, Indiana at approximately 5:00 o'clock a.m. with the intent to commit a felony therein, to-wit Theft, which conduct constituted a substantial step towards the commission of the crime of burglary.

All of which is contrary to the form of the statute in such cases made and provided, to-wit: 1.C. 35-41-5-1 and I.C. 35-48-2-1 and against the peace and dignity of the State of Indiana."

Appellant contends the evidence was insufficient to prove the element of intent to commit theft.

The facts indicate that the manager of the Shiloh Village Store stayed there at night. On March 27, 1988 at 4:45 A.M., the manager saw two men attempting to pry open the front door. The police were notified. When the police arrived, the two men ran in separate directions. The police caught Faulkner near a baseball diamond.

On March 27, 1988 at 10:80 A.M., the police discovered pry marks on the door of the Tasty Q, an ice cream shop located across the street from Shiloh Village. Nothing was missing from the Tasty Q.

On March 27, 1988, the police found pry marks on the door of Joby's Pizzeria, which is across the street from Shiloh Village. A cash register was missing from Joby's Pizzeria. Police discovered prints matching Victor Miller's tennis shoes inside Joby's Pizzeria. The police arrested Victor Miller in Elkhart, Indiana. No evidence was introduced at trial linking Faulkner with the burglary of Joby's Pizzeria.

Gebhart v. State (1988), Ind., 531 N.E.2d 211, reversed an attempted burglary conviction. The evidence showed the defendant pried the back door of a house open but was insufficient to prove intent to commit theft.

The following language from Gebhart is equally applicable in the present case:

"'The evidence here is insufficient in probative value to warrant the conclusion of a rational trier of fact, to a moral certainty beyond a reasonable doubt, that appellant had the intent to steal from the house.... It might well support the conclusion that the appellant intended some undetermined sort of wrongdoing, mischief, misdeed, or immoral or illegal act. However, that is not the issue to be resolved. A eriminal conviction for burglary requires proof beyond a reasonable doubt of a specific criminal intent which coincides in time with the acts constituting the breaking and entering, and such specific criminal offense must be clearly stated in the charge."

Id. at 212.

Robinson v. State (1989), Ind., 541 N.E.2d 531.

Because of the insufficient evidence of intent to commit theft as charged, the convie-tions cannot stand.

Reversed.

SHIELDS, P.J., concurs. GARRARD, P.J., concurs in result with opinion.