Opinion
No. 42A04-1101-CR-40
08-26-2011
KEVIN GODFREY, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : JOHN PINNOW Greenwood, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
JOHN PINNOW
Greenwood, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE KNOX SUPERIOR COURT
The Honorable W. Timothy Crowley, Judge
Cause No. 42D01-0806-FB-39
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES , Judge
Case Summary
Kevin Godfrey appeals his conviction for Class B felony burglary. We affirm.
Issue
The issue is whether there is sufficient evidence to sustain Godfrey's conviction.
Facts
Thomas Keller left his house around 9:00 a.m. on May 13, 2008, and locked his back door. When Keller came home, his back door was loose and had pry marks on it. Keller noticed long-neck, brown, Budweiser bottles were missing from his refrigerator. His medications and a container of change also were missing.
That morning, Amy Melvin, whose house was between Godfrey's and Keller's houses, saw from her bathroom window that Godfrey was walking near her chain-link fence from the direction of his house toward Keller's house. As far as Melvin could see, Godfrey did not have anything in his hands on his way to Keller's house. Melvin later saw Godfrey walk back with four long-neck, brown, glass, beer bottles in his hands.
Melvin saw Godfrey walk back to Keller's house for a second time later that morning without holding anything in his hands. When Godfrey walked back from Keller's house, he again had beer bottles in his hands and his cargo-short pockets appeared to have items in them.
As Melvin walked across the street to a liquor store, she saw Godfrey enter Keller's house through the back door. Melvin called her husband, who told her to go inside, lock the door, and call the police. From her bathroom window, Melvin could see Godfrey walking back to his house carrying beers for a third time.
Melvin gave Deputy Daniel Mooney of the Knox County Sheriff's Department a statement she had written on notebook paper and filled out another statement-form. In Melvin's first statement, she stated that she saw Godfrey shut Keller's door on her way back from the liquor store. Melvin's second statement did not say that she saw Godfrey enter Keller's house and did not state that she saw him close Keller's door. Later that day, Godfrey was arrested for driving with a suspended license. The items missing from Keller's house were not found on Godfrey's body or in the vehicle he was driving, and the police did not search his house.
The State charged Godfrey with Class B felony burglary and Class D felony theft. At trial, Melvin testified that she saw Godfrey enter Keller's house and close the door. The jury found Godfrey guilty of burglary and not guilty of theft. Godfrey now appeals.
Analysis
Godfrey contends that there is insufficient evidence to support his burglary conviction. In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence nor do we assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). We look to the evidence and reasonable inferences drawn therefrom that support the verdict. Id. We will uphold the conviction if there is probative evidence from which a fact finder could have found the defendant guilty beyond a reasonable doubt. Id.
In order to convict Godfrey of Class B felony burglary, the State had to prove he broke and entered Keller's dwelling with the intent to commit theft. See Ind. Code 35-43-2-1(1)(B)(i). "The occurrence of a breaking may be proven entirely by circumstantial evidence." Davis v. State, 743 N.E.2d 751, 753 (Ind. 2001). The uncorroborated testimony of a single witness or victim may sustain a conviction. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied.
Godfrey argues that Melvin's testimony was incredibly dubious because she did not mention seeing him go inside Keller's house in either of her written statements. Godfrey also argues Melvin's trial testimony is inconsistent with her pretrial statement. Appellate courts may apply the "incredible dubiosity" rule to impinge upon a jury's function to judge the credibility of a witness. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007), superseded by statute on other grounds.
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
In Johnson, a witness testified at trial that a man was inside an office while another man was standing in a doorway, but the witness had said in a previous statement that one of the men was standing outside, rather than inside the office, and the other was in the doorway. Johnson v. State, 704 N.E.2d 159, 161 (Ind. Ct. App. 1999), trans. denied. This court concluded that "despite the minor discrepancy in the witness's testimony, there was evidence from which a reasonable person could infer that Johnson had entered the office." Id. at 162.
Similarly, Melvin's two statements did not state the same facts. In Melvin's first statement, she wrote that she saw Godfrey shut Keller's door, but in her second statement, she did not mention this detail. Unlike Johnson, there is no discrepancy between Melvin's two statements. Melvin did not state anything in her second statement that was different from the first; she simply did not mention the fact that she saw Godfrey shut Keller's door.
Likewise, Melvin's trial testimony that she saw Godfrey go in and shut Keller's door is not inconsistent with her pretrial statements, which did not mention him going in. Melvin's trial testimony that she saw Godfrey going in and shutting Keller's door and her pretrial statements, the first saying she saw him shutting the door and the second not mentioning that fact, are the same facts with different clarity in details that are not inconsistent with one another. In any event, "the fact that a witness gives trial testimony that contradicts earlier pre-trial statements does not necessarily renter the trial testimony incredibly dubious." Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002).
Also, based on Melvin's trial testimony that she saw Godfrey enter Keller's house, and Keller's testimony that he locked the door that morning, a reasonable juror could believe Godfrey had entered Keller's house. Even if there is no direct evidence to prove a defendant opened a door or window to gain entry, a witness's testimony of having seen the defendant exit a residence by opening a door entitles a jury to circumstantially infer the defendant entered the home in the same manner. See Miller v. State, 563 N.E.2d 578, 581 (Ind. 1990). Assessing the truth and veracity of Melvin's testimony was within the province of the fact-finder. See Johnson, 704 N.E.2d at 161.
Although Godfrey did not have any stolen items in his possession when he was arrested, Melvin testified that she saw Godfrey walking back from Keller's home with long-neck, brown, glass bottles in his hands and that Godfrey's cargo short pockets appeared stuffed even though he had not carried anything on his way there. These bottles match the description of the bottles missing from Keller's home. Keller's medications and change were also missing, which would explain the stuffed cargo short pockets. A defendant does not have to be found in possession of stolen property in order to be convicted of burglarizing a house with intent to commit theft. See Olinger v. State, 463 N.E.2d 1385, 1387 (Ind. 1984) (finding sufficient evidence to support burglary conviction despite fact that defendant was not found in possession of stolen items). Melvin's testimony was consistent with the fact that Keller's door had marks indicating it had been pried open and items were stolen from his home. We also note that police did not search Godfrey's house for the missing items. The evidence is sufficient to support Godfrey's burglary conviction.
Conclusion
There is sufficient evidence to support Godfrey's conviction. We affirm.
Affirmed. ROBB, C.J., and BRADFORD, J., concur.