Hinkle v. State

BUCHANAN, Chief Judge,

dissenting.

I dissent to the majority’s reversal and remand of a conviction for burglary under Count I (the Holloway burglary) because there is sufficient evidence to sustain this conviction.

Admittedly the evidence which sustains Hinkle’s conviction is circumstantial, however it has been repeated over and again that our standard of review of circumstantial evidence is the same as in every other case. As Justice Pivarnik recently said in Ruetz v. State (1978), Ind., 373 N.E.2d 152, 157:

[W]here there are two reasonable inferences arising from the circumstantial evidence in a case, one of guilt and another of innocence, it is not the duty or right of this court to reverse simply because we might believe the circumstances do not exclude every reasonable hypothesis of innocence.

And Justice Hunter in Jones v. State (1978), Ind., 377 N.E.2d 1349, 1351:

We do not have to find that circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence but only whether an inference may reasonably be drawn therefrom tending to support the finding of the trial court.

The circumstantial evidence sufficient to sustain Hinkle’s conviction of the Holloway residence can be found in these circumstances: (1) the testimony of Raymond Lewis, (undercover agent) who stated that Hinkle told him “he had been getting into places” for some time and that the guns Hinkle was attempting to sell (including the Holloway guns) were “hot”; (2) the two guns which had been testified as being stolen from the Holloway residence were located in the Hinkle residence and Hinkle could not adequately explain how the guns had come into his possession.1

Considering only the evidence most favorable to the State, together with all reasonable and logical inferences to be drawn therefrom, I believe that the facts recited *560above and the inferences the jury could draw therefrom constitute sufficient evidence to sustain Hinkle’s conviction of the Holloway burglary.

. In my view, because there was sufficient other evidence to establish Hinkle’s participation in the Holloway burglary, I do not believe that the erroneously admitted evidence of the deceased informant was harmful.