dissenting.
I must respectfully dissent. In my view, the result in this case is controlled by the recent Indiana Supreme Court decision in Hanks v. State (1985), Ind., 484 N.E.2d 14. *810There Justice Shepard, writing for a unanimous court, held that a defendant's fingerprint found on a mirror which was moved to gain access to stolen items in a burglarized house was sufficient evidence to sustain the defendant's convictions for burglary and theft. This was so even though the fingerprint was the only physical evidence connecting defendant with the crimes. The defendant had visited the victim's home about ten days before the crime, but the mirror was not then present. On the day of the crime, the defendant came to the door of the victim's house shortly before the victim left but did not enter the home. When the victim returned later in the day, the home was breached and burglarized. The court found that the fingerprint on the mirror, in conjunction with the defendant's presence near the time of the incident, was sufficient to sustain the convictions.
In the case before us, a garage belonging to Frankie Nolden (Nolden), located at Nolden's Indianapolis residence, was burglarized between 10:00 a.m. and 2:80 p.m. on October 2, 1984. Although the garage was securely locked when Nolden left, upon returning Nolden found the garage door cracked, a garage window broken, and items missing from the structure. The broken window was located on the side of the garage that faced an alley, but was separated from the alley by a fence with a gate. Pieces of broken window glass, found on the ground outside the garage, revealed a latent fingerprint which was identified as that of defendant-appellant Rodney Evans (Evans). Nolden neither knew Evans nor gave him permisgion to enter the garage at any time. At trial, Evans presented several witnesses whose testimony placed him in the vicinity of the Nolden garage at the time the break-in occurred.
Unlike the majority, I conclude that the facts of this case fall squarely within Hanks. There, the defendant was at the burglarized house shortly before the crime occurred, and the defendant's fingerprint was found inside the home. Here, Evans's own witnesses place him in the vicinity of the burglarized garage during the time in question. Moreover, Evans's fingerprint was found on broken window glass at a place where he had neither permission nor the right to be present. It is well settled that "a burglary conviction is supported by evidence of fingerprints found at the scene of a crime, intertwined with evidence supporting a reasonable inference that the prints were not made in a legitimate manner." Curry v. State (1982), Ind.App., 440 N.E.2d 687, 689-90. The evidence supports a reasonable inference that Evans's fingerprint, found at the scene of the crime, was not made in a legitimate manner.
The majority presents two reasons for its determination that the evidence of Evans's fingerprint does not reasonably support the inference he was the burglar. The majority first asserts that the garage was relatively accessible to the public thus making it improper to infer that Evans's print gives rise to anything other than an inference he was present on legitimate business, citing Nichols v. State (1973), 157 Ind.App. 605, 301 N.E.2d 246. Secondly, the majority asserts that the dearth of evidence as to which side of the window glass the print was found on or whether the print was made before or after the window was broken is fatal to the State's case.
The majority's reliance upon Michols is misplaced. The facts of that case are distinguishable from those before us. The fingerprint evidence in Nickols was found in a place of business held open to the public. Here, Nolden's garage, a private structure on private property, was not a place held open to the public so that Evans's presence as established by his fingerprint was devoid of any legitimate explanation. The majority focuses on the fact that the garage was near an alley and therefore reasons that the public had access to the garage. This ignores, however, the evidence which establishes that the garage was separated from the alley by a fence with a gate. This evidence leads to a reasonable inference that the public did not have easy access to Nolden's garage. The trier of fact was presented with this information, and it was the trier of fact's duty to determine the weight of this evidence.
*811"For this Court to affirm the convictions, the circumstantial evidence against appellant need not exclude every hypothesis of his innocence. The question is whether a reasonable person could infer that, beyond a reasonable doubt, the print was made in the perpetration of the burglary and theft.
[[Image here]]
We need not conclude, as did the Nichols court, that for aught that appears appellant's print was placed legitimately."
Hanks, supra, at 16. Unlike the factually unique Nichols case, a reasonable person could infer, beyond a reasonable doubt, that Evans's print was made in the perpetration of the burglary and theft.
Likewise, the lack of evidence regarding which side of the glass Evans's fingerprint was found upon is simply not relevant to the adjudication of guilt in this case. In Curry, supra, the defendant's fingerprints were found on both sides of the same piece of broken door glass. In that case, the inquiry into which side of the glass the print occurred upon was necessary to establish whether the print might have been legitimately placed upon the glass. Here, no reasonable inference can arise that Evans's presence, as evidenced by his fingerprint, was legitimate. The fingerprint was found in a place not open to the public, and there was no evidence that the print might have been placed legitimately at an earlier time.
Thus, I find Hanks to be the beacon of light leading to the conclusion that the trial court's judgment should be affirmed.