ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER JEFFREY A. MODISETT
Public Defender of Indiana Attorney General of Indiana
DAVID P. FREUND SARAH E. SCHERRER
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
BRET SISSON, ) ) Appellant-Defendant, ) ) vs. ) No. 08A04-9805-CR-258 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Bell admitted that he had committed the Carroll County burglaries, and he stated that Sisson
was with him and participated in the crimes.
Sisson was arrested that evening. At the time he was arrested, Deputy Leazenby watched Sisson put on a pair of Nike tennis shoes, the soles of which appeared to match a casting made of a footprint found outside the McCain residence. The shoes were taken to Sergeant Frank Aldrich at the Indiana State Police Lab. Sergeant Aldrich, an expert in the area of shoe print examinations, compared Sisson's shoes to the casting and determined that one of the cast impressions could have been made by Sisson's shoe because the size and sole patterns matched. He could not, however, identify any individual characteristics which either identified or eliminated Sisson's shoes as having made the impression.
Sisson was charged with three counts of burglary and with being an habitual offender. Bell, who had pled guilty to the Marcellino burglary only, testified against Sisson. During Sisson's trial, Bell recounted two opposing versions of the events surrounding the burglaries. First, Bell testified on direct examination that Sisson was with him and participated in all three burglaries, and that Sisson entered each of the three homes that were burglarized. Bell then recanted that testimony and stated that Sisson was with him only for the Payne burglary but not for the Marcellino and McCain burglaries. Bell stated on both cross and redirect that after the Payne burglary, Sisson did not want to break into any other homes so Bell took him to a service station where Sisson's sister worked. Bell further testified that he returned alone to commit the Marcellino burglary, then drove to the McCain house. According to this version, before Bell committed the McCain burglary he returned to the service station, picked
up Sisson, and drove back to the McCain residence. While there, Bell and Sisson got out of
the car and approached the house, but Sisson again said that he did not want to break into the
house. Bell testified that he then took Sisson back to the service station and left him there
while Bell returned to commit the McCain burglary alone.
The jury convicted Sisson of the McCain burglary, but acquitted him of the Payne and Marcellino burglaries. Sisson waived his right to a jury trial on the habitual offender count, and the trial court adjudged him an habitual offender. Sisson was sentenced to thirty years incarceration.
told that he was with me on the second and third house, that, you know, we'd both get the
same amount of time. And you know that I wouldn't be the only one getting in trouble, that
we'd both, you know, get the same amount of sentence." Defense counsel then asked, "So
those were outright lies about the second and the third house?" And Bell replied, "Yes, sir."
Bell also contradicted his testimony regarding whether Sisson had entered any of the homes, stating not only that Sisson was not with Bell for the second and third houses, but also that Sisson had not entered the Payne house: "[Sisson] didn't go in the house. I'm really not sure . . . I don't think he went in." Regarding specifically the McCain burglary (third house), for which Sisson was convicted, Bell first testified that Sisson was with Bell when Bell burglarized the house. He further testified that Sisson had entered the McCain residence and helped remove some guns. Bell later recanted, testifying that although he had taken Sisson to the McCain residence, Sisson did not want to burglarize the home and asked Bell to take him to the gas station where his sister worked. Bell then returned to commit the burglary by himself. According to Bell's second version, Bell and Sisson got out of the car at the McCain residence and approached the house but returned to the car when Sisson said he did not want to burglarize the home.
In addition to the express contradictions in Bell's testimony, and his own admission that he had lied when he told the police and later the jury that Sisson had participated in the three burglaries, Bell's testimony is riddled with equivocal language:
Q: Did you throw [the rock] in the window [of the Payne house]?
A: It's been awhile ago, and I was drunk during the day . . . I can't really . . .
Q: Were those the only same two lies [told to the police]?
A: I suppose.
Q: I'm sorry?
A: I suppose.
Q: Okay, and today you're telling the Court that [an earlier statement's] not
A: No. To tell you the truth Mr. Sisson wasn't with me for the second house [Marcellino] and the third house [McCain]. He didn't go in the first -- He went in but, he didn't, you know, touch anything.
Q: And wasn't it your testimony that you broke the glass [at the Payne
house] and you went in and Bret didn't even go in?
A: I suppose he didn't go in.
Q: Did he go in the [Payne] house or did he not go in the house?
A: He didn't go in the house. I'm really not sure . . . I don't think he went in.
In the end, the only part of the story about which Bell seemed certain was that Sisson did not want to commit the McCain burglary so Bell did it by himself. Sisson argues that because Bell's testimony is inherently contradictory and equivocal, we should apply the "incredible dubiosity" rule and reverse his conviction.
The State contends, however, that the rule does not apply in this case. The State's argument is twofold. First, the State argues that Bell's testimony was not coerced. This
argument is easily disposed of, because the "incredible dubiosity" rule does not require
coercion. Rather, it applies to inherently contradictory testimony that is either coerced or
equivocal. As discussed above, Bell's testimony is certainly both contradictory and
equivocal. The State's second argument is that the "incredible dubiosity" rule does not apply
here because there is corroborating circumstantial evidence in the form of a footprint at the
McCain residence (third house). However, the evidence of the footprint is actually as
follows: the casting of the footprint and Sisson's shoe had similar class characteristics (those
characteristics common to all shoes of that brand and style and size); no individual
characteristics were identified. From this, the State's expert concluded that Sisson's shoe
"could have" made the impression: "The shoes . . . could not be identified or eliminated has
[sic] having made the impression . . . ." (R. 762). Such evidence is inconclusive at best.
Even if the footprint had been identified as matching Sisson's shoe, it is evidence only that Sisson was on the premises at some point. It is well-settled that mere presence at the scene of a crime is insufficient to convict on the underlying crime. Fuller v. State, 674 N.E.2d 576, 579 (Ind. Ct. App. 1996). Furthermore, as Sisson points out, evidence of his presence at the McCain residence is totally consistent with Bell's final testimony that Sisson went to the home but did not want to break in and instead had Bell take him back to the gas station. Therefore, not only is the footprint evidence inconclusive but it is also of minimum probative value regarding whether Sisson committed the burglary. Under these circumstances, we find that the footprint is insufficient to render the "incredible dubiosity" rule inapplicable in this case.
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