Eby v. State

¶1*523Concurring Opinion

¶2SOLE GROUND FOR CONCURRENCE —I concur in the affirmance of the conviction solely on the prosaic, technical ground that there is evidence of probative value from which a reasonable inference may be drawn that the defendant had the requisite specific intent1 to do “violence or injury” to the prosecutrix at the time he broke and entered into her apartment.

¶3STATEMENT OF ESSENTIAL FACTS — There is testimony in the record by Zerelda John, Resident Manager of the apartments in which the prosecutrix resided, that on the night in question she was sitting on a porch of one of the apartments near that of the prosecutrix visiting with a neighbor. While so occupied she observed the defendant headed in the direction of the prosecutrix’s apartment. She said this occurred at “approximately 11:00 o’clock.” Shortly after the defendant disappeared from sight she heard screams. After the police arrived she identified a photograph exhibited to her by the police as being “the man I saw.”

¶4The prosecutrix, a Mrs. Wyronski, testified that she returned home “about 11:00 o’clock.” Her husband was out of the city overnight and as she entered her apartment she experienced an uneasy feeling which prompted her to search the apartment and check all the closets — five in number, one in each room. Finding no one there she then turned off the lights in the kitchen, dining room, and living room and went into the bathroom and the back bedroom area where she prepared to take a bath.

¶5After entering the bathroom and preparing to take a shower she heard a noise which unnerved her. So she closed the bathroom door, locked it, and took her shower preparatory to retiring for the night. She then heard another sound which frightened her, causing her to start downstairs to another *524apartment for aid. Proceeding down the hall she was accosted by the defendant with a pillow in hand, who grabbed her and pressed the pillow, which had been obtained from the living room, against her face. During this time she was screaming and when the pillow was pressed over her face she bit the defendant’s left hand. At this moment there was a banging on her apartment door which indicated the presence of other persons and the defendant fled through the patio door.

¶6There was also testimony by the prosecutrix that the door of her apartment was unlocked during the time she was at a neighbor’s apartment earlier in the evening. She expressed no opinion as to how the defendant entered her apartment.

¶7BASIS FOR CONCURRENCE — Indiana courts of appeal are obliged to sustain a conviction if there is evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Authority in support of this proposition is too numerous to cite.

¶8The reasonable inference we Search for here relates only to whether the defendant broke and entered the apartment with the requisite specific intent, i.e., to do an act of violence or injury to the prosecutrix. Indicative of such a reasonable inference is the short time lag between Zerelda John’s observance of the defendant .and the screams heard shortly thereafter, and further, the prosecutrix visibly searched each room of the apartment including the closets and switched off lights in the kitchen, dining room, and living room, all of which would indicate her presence in the apartment. Her activity and obvious presence would be known to the defendant prior to his entry if they arrived at about the same time because she had previously searched the apartment and he was not there.

¶9Thus there is a clear reasonable inference from circumstantial evidence of probative value justifying the trial court’s conclusion that the defendant' broke' and entered into *525the apartment with the specific intent of doing an act of violence or injury to the prosecutrix. “That a conviction may be sustained wholly on circumstantial evidence is not in doubt provided the evidence is of such probative value that a reasonable inference of guilt may be drawn. Coach v. State (1968), 250 Ind. 226, 235 N.E.2d 493; Medsker v. State (1968), 249 Ind. 369, 232 N.E.2d 869; Melvin v. State (1968), 249 Ind. 351, 232 N.E.2d 606; Stallings v. State (1967), 249 Ind. 110, 231 N.E.2d 29.” Vaughn v. State (1971), 255 Ind. 678, 266 N.E.2d 219.

¶10It is my preference that our opinion be confined to an examination of the evidence supporting a reasonable inference of the necessary specific intent, lest we be accused of presuming specific intent.2

¶11Note. — Reported at 290 N.E.2d 89.