M.B. v. State of Indiana (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D),                           Jun 15 2016, 5:56 am
    this Memorandum Decision shall not be
    CLERK
    regarded as precedent or cited before any                         Indiana Supreme Court
    Court of Appeals
    court except for the purpose of establishing                           and Tax Court
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Ruth Johnson                                             Gregory F. Zoeller
    Ellen F. Hurley                                          Attorney General of Indiana
    Marion County Public Defender Agency
    Christina D. Pace
    Appellate Division                                       Deputy Attorney General
    Indianapolis, Indiana                                    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    M.B.,                                                    June 15, 2016
    Appellant-Respondent,                                    Court of Appeals Case No.
    49A02-1509-JV-1527
    v.                                               Appeal from the
    Marion Superior Court
    State of Indiana,                                        The Honorable
    Appellee-Petitioner.                                     Marilyn A. Moores, Judge
    The Honorable
    Scott B. Stowers, Magistrate
    Trial Court Cause No.
    49D09-1507-JD-1186
    Kirsch, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016      Page 1 of 14
    [1]   M.B. appeals his adjudication as a delinquent child for committing burglary,
    which would be a Level 4 felony1 if committed by an adult. M.B. raises the
    following restated issue on appeal: Whether the evidence of intent to commit
    theft was sufficient to support M.B.’s burglary adjudication.2
    [2]   We affirm.
    Facts and Procedural History
    [3]   On July 1, 2015, at approximately 5:15 p.m., Indianapolis Metropolitan Police
    Department Officers Noe Reyes (“Officer Reyes”) and Keith Shelton (“Officer
    Shelton”) were dispatched to an apartment complex on Hawkesbury Lane in
    Indianapolis, Indiana, on the report of a burglary at an apartment. Christine
    Carter (“Carter”), who is M.B.’s aunt, lived in the apartment, although she was
    not home at the time; some neighbors called Carter to advise her about the
    break-in. After Carter had returned to the scene, she reported that her
    PlayStation 4 video gaming system, along with three games and a controller,
    were taken, as well as money from her bedroom.
    [4]   After receiving the dispatch call, Officer Shelton arrived at the apartment
    complex, where he received a description of a young male who was seen fleeing
    the complex. The individual, later identified as M.B., was described as being a
    1
    See Ind. Code § 35-43-2-1.
    2
    The juvenile court also entered a true finding for an act that would have been Class A misdemeanor
    resisting law enforcement if committed by an adult. Ind. Code § 35-44.1-3-1(a)(3). M.B. does not challenge
    that adjudication on appeal.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016           Page 2 of 14
    black male with a backpack, wearing a white t-shirt and riding an orange
    moped. Officer Shelton radioed this information to Officer Reyes and then
    proceeded to Carter’s apartment to investigate. Officer Shelton noticed that the
    apartment’s front door appeared to have been forced open, as the frame was
    broken, and there was wood on the ground. Officer Shelton also observed that
    there was a television set knocked over on the floor, with numerous wires
    disconnected from it.
    [5]   When Officer Reyes arrived at the complex, he observed an individual
    matching M.B.’s description leaving the area on an orange moped, riding
    westbound on the sidewalk area. Officer Reyes immediately pulled to the side
    in his fully-marked police vehicle, rolled his window down, and ordered M.B.
    to stop, but M.B. fled on the moped. Officer Reyes activated his emergency
    lights and pursued M.B., who eventually lost control of his moped on gravel,
    fell off, and fled on foot. Officer Reyes observed M.B. drop his backpack as he
    ran. Officer Reyes lost sight of M.B., but returned to the location of the moped
    and recovered a hammer and a screwdriver that had fallen out of the moped.
    Officer Reyes also retrieved the backpack, which contained a PlayStation 4
    video gaming system (“the PlayStation”), a PlayStation remote game
    controller, and two video games.3
    3
    We note that there was no evidence that any money was found in M.B.’s possession when he was
    apprehended.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016       Page 3 of 14
    [6]   Meanwhile, another officer assisting in the search located M.B. and
    apprehended him. Officer Reyes then arrived and transported M.B. back to the
    apartment complex to speak with a detective. During the ride, M.B. told
    Officer Reyes, “You guys can’t charge me with anything. That’s my aunt’s
    house.” Tr. at 26, 28. M.B. also commented to Officer Reyes that “there’s no
    way” that he “could be charged with stealing something that belonged to
    himself.” 
    Id. at 28.
    M.B. mentioned that he was mad that his aunt had “put
    him in a foster home,” and he “was just there to get his stuff.” 
    Id. [7] The
    following day, on July 2, 2015, the State filed a delinquency petition
    alleging that M.B. committed acts that would be, if committed by an adult,
    Count I, burglary, a Level 4 felony; Count II, theft, a Class A misdemeanor;
    and Count III, resisting law enforcement, a Class A misdemeanor. On July 30,
    2015, the juvenile court conducted a fact-finding hearing.
    [8]   At the hearing, Carter testified that M.B. had lived with her at the apartment
    when M.B.’s mother was in jail. After about six weeks of living with Carter,
    M.B. left her care and was placed in foster care, where M.B. was residing at the
    time of the fact-finding hearing. Carter testified that M.B. did not have her
    permission to enter her apartment or to take the PlayStation, games, or
    controller. Carter testified to having purchased the PlayStation, initially
    characterizing it as belonging to her, but she later testified that it belonged to
    her boyfriend, for whom she had purchased the PlayStation and games as a gift.
    With regard to the television, which was disconnected but not taken, Carter
    stated that it was owned by M.B.’s mother. Carter also noted that, because
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 4 of 14
    M.B. had lived with her for a while, he had some personal belongings at her
    apartment, including a bag of clothes and a boot worn on his leg during an
    injury, but he did not take those belongings on the date in question.
    [9]   M.B. testified at the fact-finding hearing in his own defense, stating that the
    PlayStation and games were his own, as his mother had purchased those items
    for him as a Christmas gift. M.B. explained that, on the day in question, he
    tried to call his aunt to ask her if he could return to the apartment and retrieve
    his belongings, but his calls went straight to her voicemail. He tried to send text
    messages to her, but he received no response. M.B. then decided to go to the
    apartment anyway. He knocked on the door, and after receiving no answer, he
    knocked on her downstairs neighbor’s door, thinking perhaps his aunt was in
    there. After receiving no response there, M.B. forced his way into Carter’s
    apartment, planning to “grab my property and go.” Tr. at 41. M.B. testified
    that when he got into the apartment,
    A: I seen my TV. I seen my game. I seen my fan and I didn’t
    proceed to look around. I didn’t look around. I just seen my
    stuff and I grabbed my stuff.
    Q: OK. Did you take any money?
    A: No. There was no money in there.
    Q: OK. Did you take anything else that you thought didn’t
    belong to you?
    A: No. There was nothing else.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 5 of 14
    
    Id. M.B. agreed
    that he had a bag of clothing in the apartment, but did not take
    it. He explained that he would have taken his mother’s television set with him,
    but it was too big to carry on the moped. When a neighbor told M.B. that she
    was calling his aunt, he decided to wait for her. However, when he noticed a
    police car approaching the apartment complex, he realized that the neighbor
    had called the police, at which time he became scared and fled on his moped.
    [10]   On cross-examination, M.B. acknowledged that he was “upset” with Carter
    because she had placed him in foster care. 
    Id. at 43.
    The State’s cross-
    examination also asked M.B. to acknowledge that he had owned a different
    PlayStation gaming system, which he had sold for cash, but M.B. denied that
    he sold it and maintained that the one he took from Carter’s house was his.
    Thereafter, the State called Carter as a rebuttal witness, and she testified that
    M.B. had owned a PlayStation but that he sold it, along with some shoes, and
    M.B. had shown her the cash he received for the sale of the items. M.B.
    returned to the witness stand and testified that he sold shoes, not his
    PlayStation.
    [11]   At the conclusion of the hearing, the juvenile court entered true findings on
    Counts I and III and adjudicated M.B. to be a delinquent child. The juvenile
    court did not enter a true finding on Count II, noting that there was “a bit of an
    issue with respect to ownership of the property in question.” 
    Id. at 58.
    On
    September 4, 2015, the juvenile court held a dispositional hearing and placed
    M.B. on probation with a suspended commitment to the Department of
    Correction. M.B. now appeals.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 6 of 14
    Discussion and Decision
    [12]   M.B. argues that insufficient evidence was presented at the fact-finding hearing
    to support the adjudication as a delinquent for committing an act that would be
    burglary, a Level 4 felony if committed by an adult. When this court reviews
    sufficiency of the evidence claims with respect to juvenile adjudications, we
    neither reweigh the evidence nor judge the credibility of the witnesses. M.S. v.
    State, 
    889 N.E.2d 900
    , 901 (Ind. Ct. App. 2008), trans. denied. Instead, we will
    examine the evidence most favorable to the judgment and the reasonable
    inferences that may be drawn therefrom. 
    Id. We will
    affirm if there is
    substantial evidence of probative value from which a reasonable trier of fact
    could conclude that the juvenile was guilty beyond a reasonable doubt. 
    Id. [13] Indiana
    Code section 35-43-2-1 provides that “[a] person who breaks and enters
    the building or structure of another person, with the intent to commit a felony
    or theft in it, commits burglary.”4 Given that burglars “rarely announce their
    intentions at the moment of entry,” a burglar’s intent to commit a specific
    felony at the time of breaking and entering may be inferred from the
    circumstances, and circumstantial evidence alone is sufficient to sustain a
    burglary conviction. Baker v. State, 
    968 N.E.2d 227
    , 230 (Ind. 2012). While
    evidence of intent “need not be insurmountable,” there must be “a specific fact
    that provides a solid basis to support a reasonable inference that the defendant
    4
    Burglary is a Level 4 felony if the building or structure is a “dwelling,” which includes “a person’s home or
    place of lodging.” Ind. Code §§ 35-43-2-1; 35-31.5-2-107.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016              Page 7 of 14
    had the specific intent to commit a felony.”5 
    Id. at 229-30
    (internal citations
    and quotation marks omitted). Furthermore, the evidentiary inference pointing
    to the defendant’s intent must be separate from the inference of the defendant’s
    breaking and entering. 
    Id. at 230.
    “In other words, the evidence must
    independently support each inference – felonious intent and breaking and
    entering – and neither inference should rely on the other for support.” 
    Id. “This is
    not to say, however, that the same piece of evidence cannot support
    both inferences.” 
    Id. [14] Here,
    the State charged M.B. with breaking and entering Carter’s home with
    the intent to commit a felony therein, namely, theft, which is the knowing or
    intentional exertion of “unauthorized control over property of another person,
    with intent to deprive the person of any part of its value or use.” Ind. Code §
    35-43-4-2. M.B. effectively concedes that he broke and entered Carter’s
    dwelling, but he maintains that he did so to take property that belonged to him.
    He argues that the PlayStation items that he took were his own, and, therefore,
    he did not have the requisite intent to commit theft, as was necessary for the
    burglary adjudication. M.B.’s position ignores the fact that conflicting evidence
    was presented at the fact-finding hearing on the issue of ownership of the
    PlayStation items. While M.B. testified that he owned it, Carter testified that
    she owned it or that her boyfriend did, as she had purchased it for him but he
    5
    Requiring independent evidence of intent is necessary to maintain the distinction between burglary and
    other criminal offenses involving property invasion such as criminal trespass, Indiana Code section 35-43-2-2,
    or residential entry, Indiana Code section 35-43-2-1.5.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016             Page 8 of 14
    left it at her apartment. Carter also testified that M.B. previously had owned his
    own PlayStation, but that he sold it and thereafter showed her the cash that he
    had received for it. M.B.’s argument, claiming that he lacked the intent to
    commit theft because he – not his aunt – owned the PlayStation, is a request for
    us to assess the witnesses’ credibility and reweigh the evidence, which we
    cannot do. As our Supreme Court observed,
    These evaluations are for the trier of fact, not appellate courts. In
    essence, we assess only whether the verdict could be reached
    based on reasonable inferences that may be drawn from the
    evidence presented.
    
    Baker, 968 N.E.2d at 229
    . In addition to Carter’s testimony regarding her
    ownership of the gaming equipment, we note that M.B. fled when police
    arrived and dropped his backpack that held the PlayStation, controller, and
    games; from this, a fact-finder could reasonably infer that M.B. was attempting
    to dispose of the items taken because they did not belong to him. We conclude
    that sufficient evidence existed from which the trier of fact could infer that M.B.
    did not own the PlayStation, games, and controller in question and that he
    broke into Carter’s home with the intent to take those items.
    [15]   To the extent that M.B. argues that because the juvenile court did not enter a
    true finding on the charge of theft, it was thereby precluded from entering a true
    finding on the charge of burglary, we disagree. We recognize that the juvenile
    court, when announcing its decision with regard to theft charge, noted that
    there was “a bit of an issue with respect to ownership of the property in
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 9 of 14
    question.” Tr. at 58. However, one commits burglary when he “breaks and
    enters the building or structure of another person, with intent to commit a
    felony in it,” and one commits theft when he “knowingly or intentionally exerts
    unauthorized control over property of another person, with intent to deprive the
    other person of any part of its value or use.” Ind. Code §§ 35-43-2-1, 35-43-4-2.
    Burglary and theft contain distinct elements, and, to obtain a conviction for
    burglary, it is not necessary for the State to prove that the defendant committed
    theft or any other felony, as the burglary is complete upon breaking and
    entering with intent to commit a felony.
    [16]   Here, even if we do not consider the PlayStation and related accessories, the
    record contains other evidence from which the juvenile court could have
    inferred that M.B. entered Carter’s home with the intent to commit theft
    therein. M.B. was mad about being in the foster care system, and he was
    “upset” with Carter about it. Tr. at 43. While maintaining that he broke into
    her home to take only what was his, he did not take the bag of personal clothes
    and belongings that all parties agree belonged to him. When asked what he did
    once he had gained access to Carter’s apartment, M.B. testified that he saw the
    television, PlayStation, and his fan, and he offered – although not asked –
    “[A]nd I didn’t proceed to look around. I didn’t look around.” 
    Id. at 41.
    While he denied taking any money, his response included the comment, “There
    was no money in there[,]” which he would not have known if he had not
    looked for money. 
    Id. It was
    for the juvenile court to assess M.B.’s credibility,
    which in turn affected any inferences the juvenile court may have drawn from
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 10 of 14
    the evidence, including what M.B.’s intentions were when he broke into his
    aunt’s home. Our standard of review requires that we will “consider[] only the
    evidence most favorable to the verdict and any reasonable inferences that may
    be drawn from that evidence.” 
    Baker, 968 N.E.2d at 229
    . Under that standard,
    we find that the State presented sufficient evidence, direct and circumstantial, to
    support the juvenile court’s true finding that M.B. committed burglary, a Level
    4 felony if committed by an adult.
    [17]   Affirmed.
    Pyle, J., concurs.
    Riley, J., dissents with separate opinion.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 11 of 14
    IN THE
    COURT OF APPEALS OF INDIANA
    M.B.,                                                    Court of Appeals Case No.
    49A02-1509-JV-1527
    Appellant-Respondent,
    v.
    State of Indiana,
    Appellee-Petitioner.
    Riley, Judge dissenting
    [18]   I respectfully dissent from the majority’s decision to affirm M.B.’s adjudication
    as a delinquent child for committing an act that would be burglary, a Level 4
    felony, if committed by an adult. Because I conclude that the State did not
    establish beyond a reasonable doubt that M.B. committed a burglary, I would
    reverse M.B.’s conviction.
    [19]   The State charged that M.B. did “knowingly or intentionally break and enter
    the dwelling [] with the intent to commit [] theft.” (Appellant’s App. p. 17). As
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 12 of 14
    noted by the majority, “M.B. effectively concedes that he broke and entered
    Carter’s dwelling, but he maintains that he did so to take property that belonged
    to him.” (Slip op. p. 8). At the fact-finding hearing, conflicting evidence was
    presented on the ownership of this property. On the one hand, Carter gave
    contradicting testimony, initially claiming ownership over the PlayStation and
    the games, while later admitting that her boyfriend owned the electronics.
    Whereas, on the other hand, M.B. testified that the property found in his
    backpack was his. Recognizing this conflicting evidence, the juvenile court
    refused to enter a true finding on the theft charge, concluding that there was “a
    bit of an issue with respect to ownership of the property in question.” (Tr. p.
    58). The State did not appeal this finding.
    [20]   As the juvenile court acknowledged the ownership issue of the PlayStation, and
    in light of the undisputed facts that M.B. and his Mother had several of their
    belongings in Carter’s apartment, it is difficult to understand how the State
    could establish the intent element, i.e., intending to commit a theft, beyond a
    reasonable doubt. Even though the majority appears to acknowledge this
    difficulty, it attempts to explain this by pointing to other evidence from which
    the juvenile court could have inferred intent. Specifically, the majority
    speculates that while M.B. denied taking any money because there was no
    money, he could “not have known if he had not looked for money.” (Slip op.
    p. 10). Nevertheless, the record is clear that M.B. only entered the dwelling,
    planning to “grab my property and go.” (Tr. p. 41). The record does not
    support an inference that M.B. intentionally entered the dwelling to take items
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 13 of 14
    that did not belong to him. See I.C. § 35-43-2-1. Accordingly, as the State
    cannot establish the requisite intent for the charge, I would reverse M.B.’s
    adjudication.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1527 | June 15, 2016   Page 14 of 14
    

Document Info

Docket Number: 49A02-1509-JV-1527

Filed Date: 6/15/2016

Precedential Status: Precedential

Modified Date: 6/15/2016