Davis v. State



ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Timothy J. Miller                       Karen M. Freeman-Wilson
Indianapolis, Indiana             Attorney General of Indiana

                                        Arthur Thaddeus Perry
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



JEFF DAVIS,                       )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )  42S00-0003-CR-187
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )










                    APPEAL FROM THE KNOX SUPERIOR COURT 1
                      The Honorable W. Timothy Crowley
                         Cause No. 42D01-9901-CF-002



                                March 6, 2001

SHEPARD, Chief Justice.





      Appellant Jeff Davis appeals  his  conviction  for  felony  murder  by
asserting that the State’s evidence was insufficient to support the  element
of breaking necessary for the predicate offense of burglary.  He  makes  out
a respectable case, but at the end of the day we affirm.




                        Facts and Procedural History


      On December 16, 1998, Beth Geyer lured Floyd  Wampler  away  from  his
home by asking him to give her car battery a jump.  (R. at 586,  591,  632.)
Wampler was known to keep a large amount of cash on him, (R. at 395-96, 410-
11, 588, 623), and several guns in his  home,  (R.  at  396,  417-18,  690),
located on a farm in Knox County, (R. at 423, 548).


      After cutting the phone line, Davis and  Geyer’s  son  Jesse  Ennsmann
entered the home through the same garage door  from  which  Wampler  exited.
(R. at 592, 597-98.)  They carried a flashlight, a bat,  and  duct  tape  to
“knock[] the man out and tap[e] him up.”  (R. at 586-87, 668.)


      Davis and Ennsmann looked around the house for money.   (R.  at  598.)
They ended their search abruptly, after Ennsmann noticed from a window  that
Wampler was returning.  (R. at 601-02.)  They  departed  the  home  carrying
three guns they found, but left behind their flashlight and duct tape.   (R.
at 602, 668-69.)  Wampler later reported the  incident  and  had  his  phone
line repaired.  (R. at 729, 741-44.)


      Because of this December burglary, Graydon  June  Goodwin  was  house-
sitting Wampler’s home  on  January  7,  1999,  while  Wampler  was  in  the
hospital recovering from a stroke.  (R. at  364, 405, 688.)  Two  neighbors,
Eddie Westfall and Ed Schrieffer, knew that Goodwin was now taking  care  of
Wampler’s place and decided to go check  on  Goodwin  because  “no  one  had
heard from  [him]  and  they  were  concerned  about  him.”   (R.  at  364.)
Westfall called Wampler’s nephew, Mark Wampler, and asked that he meet  them
at the farm.   (R. at 392, 403-05.)


      After arriving at Wampler’s farm, Westfall and Schrieffer went to  the
side entrance of the house where they “always use to go in,” but  found  out
that the door was locked.  (R. at 389-90.)  Westfall shined a flashlight  in
the window and saw Goodwin lying on the floor.  (R. at 390.)  He  walked  to
the front door and noticed it was ajar.  (Id.)  He entered the home,  looked
at Goodwin and then walked back outside.  (Id.)


      Westfall tried to use a phone in the barn, but the line was dead.  (R.
at 391.)  He entered the home again in order to  determine  if  Goodwin  was
alive, but found no pulse.  (R. at 392.)  Westfall and Schrieffer  drove  to
a neighbor’s home, asked the  neighbor  to  contact  the  police,  and  then
returned to Wampler’s home, where Mark later met them.  (R. at 392, 407.)


      After Westfall told Mark that they found Goodwin’s body in the  house,
Mark contacted Dave Anderson, a crime  scene  technician  with  the  Indiana
State Police, who instructed him to remain in his truck.  (R. at  408,  427,
432.)  On his way to the home, Anderson called the State Police  post.   (R.
at 433.)  Anderson arrived at the home, spoke to Mark and Westfall and  then
entered the house only to confirm that Goodwin was  deceased.  (R.  at  433-
35.)  Later, detectives and more police officers arrived.  (R. at 435,  701-
02, 772-73.)


      Detective Greg Winkler of the Indiana State Police was  one  of  those
who arrived. (R. at 700-01.)  He did not observe any signs of  forced  entry
in any of the doors or windows.  (R. at 730-31.)   He  noticed  that  a  few
drawers were open in the kitchen; they appeared to have been searched.   (R.
at 732.)  He did not see any sign of a struggle in the home other  than  how
some of the couch cushions were tossed on the couch.  (R. at 733.)


      The forensic pathologist who performed  the  autopsy  determined  that
Goodwin’s death resulted from blood loss caused by  damage  from  a  gunshot
wound  to  the  facial  regions  of  the  head.   (R.  at  338,  351.)   The
pathologist also concluded that the manner of death was  homicide.   (R.  at
339, 351-52.)


      A few days later, Geyer made an anonymous phone  call  to  the  police
informing them of a conversation that  she  heard  between  Davis  and  Jack
Wadsworth regarding the night of  Goodwin’s  death.  (R.  at  644-46,  703.)
Geyer said that Davis and Wadsworth discussed “going  and  finishing  a  job
and . . . getting lots  of  money  and  stuff  .  .  .  .”    (R.  at  644.)
Subsequently Geyer, Ennsmann and Davis admitted their involvement  with  the
December burglary. (R. at 639, 648-49, 592-602, 723, State’s Exh. 138.)


      The State charged Davis with burglary and theft  for  his  involvement
regarding the events on December 16, 1998.  It also charged  felony  murder,
burglary and theft in relation to the events that  occurred  on  January  7,
1999.  The trial court returned guilty verdicts on all  counts.   The  court
merged the burglary and theft counts into the felony  murder  count  with  a
sentence of fifty-five years.  It also sentenced Davis to fifteen years  for
the December 16th burglary and a concurrent term  of  three  years  for  the
December 16th theft.  The net result was seventy years.






                         Sufficiency of the Evidence


      Davis claims that the evidence presented by the State was insufficient
to convict him of burglary or felony murder in connection with  the  January
death of Goodwin.  Specifically, he contends the State  failed  to  prove  a
“breaking,” one of the necessary elements for the crime of burglary.


      When reviewing convictions for sufficiency of the evidence, we look to
the evidence most favorable  to  the  verdict  and  all  of  the  reasonable
inferences that evidence provides.  Baker v. State, 273 Ind. 64, 402  N.E.2d
951 (1980).  We do not reweigh the evidence or determine the credibility  of
witnesses.  In addressing  an  insufficiency  claim,  we  determine  whether
there was substantial probative evidence to support the judgment.   Id.   If
a reasonable trier of fact could have found the defendant  guilty  beyond  a
reasonable doubt, we will affirm the decision of the trial court.   Case  v.
State,  458 N.E.2d 223 (Ind. 1984).


      To prove burglary as charged, the evidence must show  that  Davis  did
knowingly break and enter into Wampler’s home with an  intent  to  commit  a
felony in it (in this case, theft).  See Ind. Code Ann.  §  35-43-2-1  (West
1998).  The element of breaking  is  satisfied  by  showing  that  even  the
slightest force was used to gain unauthorized entry.  Trice  v.  State,  490
N.E.2d 757 (Ind. 1986).  Opening an unlocked door or pushing a door that  is
slightly ajar constitutes a breaking.  Utley v. State, 589 N.E.2d 232  (Ind.
1992), cert. denied, 506 U.S. 1058 (1993).  The  occurrence  of  a  breaking
may be proven entirely by circumstantial evidence.  McCovens v.  State,  539
N.E.2d 26 (Ind. 1989).


      Davis asserts that the State did not  present  “testimony  nor  direct
evidence of a breaking.”  (Appellant’s  Br.  at  7.)   He  argues  that  the
evidence is sufficient only to conclude that he and Wadsworth “scheme[d]  to
get Goodwin to open an outer door to the house and  allow  one  of  them  to
sneak in without having to break in.”  (Appellant’s Br. at 8.)


      Our inquiry on appeal is not whether a trier of fact may have accepted
the version of events proposed by Davis.  Rather, we determine  whether  the
verdict is supported by an inference  reasonably  drawn  from  the  evidence
presented.  We conclude that it was.


      We have encountered other cases in which there was no  overt  physical
sign of a forced entry.  In Utley, for example, a woman and her  child  were
found murdered in their home, on the floor of the bedroom.   589  N.E.2d  at
241.  The victim’s husband testified that the doors  to  the  home  remained
locked and were locked when he left the home on the day of the murder.   Id.
 He also testified that the victim would not open the door for  a  stranger.
Id.  When the victim’s body was  found,  the  rear  door  of  the  home  was
unlocked.  Id.  We  found  this  evidence  sufficient,  saying,  “From  this
testimony one could infer that force was used  to  gain  entry  without  the
victim’s permission.”  Id.


      Similarly, in this case the State  presented  circumstantial  evidence
that Goodwin would not have permitted Davis to enter  Wampler’s  home.   The
evidence revealed that the home was burglarized on December 16, 1998,  after
a stranger lured Wampler away from his home.  Wampler reported the  incident
to the police and informed his friend  Goodwin.   In  his  statement,  Davis
admitted that he planned and participated in the first burglary.


      On January 7, 1999, while Wampler was in the hospital, Goodwin  stayed
at Wampler’s home in order to guard against another burglary  attempt.   His
stepdaughter testified that Goodwin planned to sleep on  the  couch  with  a
gun next to him.  (R. at 659, 673.)  Goodwin was prepared  to  confront  any
stranger who got into the house.  Davis  and  Wadsworth  were  strangers  to
Goodwin.


      Goodwin’s body was found, with a flashlight under his  arm,  near  the
couch.  (R. at 441.)  The front door of the room was ajar and  the  door  to
the garage was locked.  Testimony revealed that when  Goodwin  let  visitors
into Wampler’s home, he let them in through the door near the  garage.   (R.
at 682.)


      Davis admitted in his statement that he was in Wampler’s home when his
friend Wadsworth shot Goodwin in the head.  Davis also admitted  that  after
Goodwin was shot, he left the home and “came back  a  few  times.”   (R.  at
723, State’s Exh. 138.)


      As in Utley, this evidence allowed a reasonable inference that  Davis’
entry was unauthorized.  Moreover,  we  think  it  implausible  that  a  man
occupying a home solely to guard against entry of potential  burglars  would
willingly let two strangers in the front door.


      Consequently,  the  evidence  was  sufficient  to  convict  Davis   of
burglary.  Because Davis’ murder charge was based  upon  the  commission  of
burglary and accomplice liability for the death  of  Goodwin,  the  evidence
was also sufficient to convict him of felony murder.[1]




                                 Conclusion


      We affirm the judgment of the trial court.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Indiana Code § 35-42-1-1(2) states, “A person who kills another human
being while committing or attempting to commit . . . burglary . . . commits
murder, a felony.”