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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: SEAN P. HILGENDORF South Bend, Indiana

FILED
Dec 29 2008, 8:58 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana SHELLEY M. JOHNSON Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
LARRY WEATHERS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A04-0806-CR-359

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-0710-FB-129

December 29, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following a jury trial, Larry Weathers appeals his conviction of burglary, a Class B felony. On appeal, Weathers raises one issue, which we restate as whether sufficient evidence supports his conviction. We reverse, concluding that although the State

presented sufficient evidence that a burglary occurred, it did not present sufficient evidence to permit the jury to find beyond a reasonable doubt that Weathers was the person who committed the offense. Facts and Procedural History At approximately 8:00 a.m. on May 12, 2007, Shirley Lee arrived at the home of her blind, ninety-two-year-old mother and saw broken glass "all over the sink." Transcript at 129. Further investigation by Lee revealed the living room and two

bedrooms had been ransacked and two pairs of earrings and a watch were missing. Officer Robert Badowski of the South Bend Police Department arrived on the scene later that morning in response to a call from Lee and inspected the broken glass. The opening above the sink consisted of an interior, wood-frame window and an exterior, metal-frame storm window. Officer Badowski observed that the wood-frame window had been

broken and opened and that the metal-frame storm window was also opened, but not broken. Officer Badowski lifted fingerprints from the windows and various areas of the kitchen. The lifts yielded five fingerprints of sufficient quality to make an identification. Four of these fingerprints were identified as Weathers's, but the fifth, which was lifted from one of the windows, see state's exhibit 35, was excluded as his.

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On October 10, 2007, the State charged Weathers with burglary, a Class B felony. On April 21 and 22, 2008, the trial court presided over a jury trial, at which Lee, Officer Badowski, and two fingerprint analysts testified.1 These witnesses testified to the events described above, with Lee adding that she was at the house with her mother until approximately 3:00 p.m. the day before she discovered the broken glass, that both windows above the kitchen sink were locked and intact when she left, and that she had never seen Weathers before, let alone permitted him to enter into the home. The analysts testified they cannot determine how long a fingerprint has been present on a particular surface. The jury found Weathers guilty, and the trial court entered a judgment of conviction. Weathers now appeals. Discussion and Decision Weathers challenges the sufficiency of the evidence supporting his burglary conviction. Our supreme court has articulated the following standard of review to apply when faced with such challenges: When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

1

Lee's mother did not testify because she had been suffering from dementia since approximately October

2007.

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Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations, footnote, and citations omitted) (emphasis in original). To convict Weathers of burglary as a Class B felony, the State had to prove beyond a reasonable doubt that Weathers broke and entered Lee's dwelling2 with the intent to commit a felony therein. See Ind. Code

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