Dillon W. Grissell v. State of Indiana ( 2014 )

Apr 30 2014, 10:39 am
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: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JESSE R. DRUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DILLON W. GRISSELL, )
)
Appellant-Defendant, )
)
vs. ) No. 90A02-1308-CR-737
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1211-FC-33
April 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Dillon W. Grissell appeals his convictions of two counts of class C felony Burglary,1
as well as the sentence imposed by the trial court. Grissell raises the following issues for our
review:
1. Was the evidence sufficient to support Grissell’s convictions?
2. Did the trial court err in sentencing Grissell?
We affirm.
On the morning of October 31, 2012, Grissell drove Caleb Nieman to a farm in
Warren. Grissell told Nieman that his uncle owned the farm and had given him permission to
remove grain hopper wagons and sell them for scrap. The farm was actually owned by Rex
and Michelle Banter, who did not know Grissell and had not given him permission to take the
wagons. When they arrived at the farm, Nieman got out of the truck and opened the sliding
doors on an older wooden barn. Grissell and Nieman took two hopper wagons from inside
the barn, attached them to the hitch, and drove to Omni Source, a metal recycling company in
Marion. Nieman went inside and, per Grissell’s instructions, wrote “Uncle’s barn” on the
ticket as the source of the material. Transcript at 77. Omni Source paid Nieman for the
wagons and Nieman, who believed Grissell was sharing the profit with his uncle, gave the
money to Grissell.
Under the same pretext, Grissell drove Nieman to the Banter’s farm again the next
morning. This time, Grissell backed his truck up to a newer metal pole barn. Nieman opened
1
Ind. Code Ann. § 35-43-2-1 (West, Westlaw current with all legislation of the 2nd Reg. Sess. of the 118th
General Assembly (2014) with effective dates through May 1, 2014).
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the metal sliding door, and the pair took a hopper wagon from the barn, attached it to
Grissell’s hitch, and drove to Omni Source. Nieman again wrote “Uncle’s barn” on the
ticket, and gave the proceeds of the sale to Grissell. Id. at 80. Later that day, Rex Banter
discovered that the hopper wagons were missing and called the police.
About two weeks later, the State charged Grissell with two counts of class C felony
burglary. At the conclusion of a two-day jury trial, Grissell was found guilty as charged. The
trial court sentenced Grissell to consecutive terms of six years executed, resulting in a
twelve-year aggregate sentence. Grissell now appeals.
1.
Grissell first argues that the State presented insufficient evidence to support his
burglary convictions. In reviewing a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d
601 (Ind. Ct. App. 2009). Instead, we consider only the evidence supporting the conviction
and the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of
probative value from which a reasonable trier of fact could have drawn the conclusion that
the defendant was guilty of the crime charged beyond a reasonable doubt, then the judgment
will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008).
It is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be drawn from it
to support the conviction. Drane v. State, 867 N.E.2d 144 (Ind. 2007). Accordingly, the
question on appeal is whether the inferences supporting the verdict were reasonable, not
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whether other, “more reasonable” inferences could have been drawn. Thompson v. State, 804
N.E.2d 1146, 1150 (Ind. 2004). Because reaching alternative inferences is the function of the
trier of fact, we may not reverse a conviction merely because a different inference might
plausibly be drawn from the evidence. Thompson v. State, 804 N.E.2d 1146.
To support Grissell’s class C felony burglary convictions, the State was required to
prove that Grissell broke and entered the building or structure of another person with intent
to commit a felony therein. I.C. § 35-43-2-1. Grissell first argues that the State failed to
prove that he entered the Banters’ barns with intent to commit the felony of theft. In support
of this argument, Grissell directs our attention to his own testimony that he never told
Nieman that the hopper wagons belonged to his uncle and that Nieman’s testimony to that
effect was a lie. This is nothing more than a request to reweigh the evidence and judge the
credibility of witnesses. Nieman testified that Grissell told him that he had permission to
take the grain wagons, which Grissell claimed belonged to his uncle. Nieman testified
further that he did not keep any of the proceeds from Omni Source because he was under the
impression that Grissell was splitting the money with his uncle. Moreover, Grissell’s
cellmate, Dustin Tumbleson, testified that Grissell told him that he had talked someone into
helping him take the hopper wagons by telling him that his uncle was giving them to him to
sell for scrap, and that Grissell was going to try to “turn the whole thing around on the other
guy.” Transcript at 106. This evidence was more than sufficient to support the jury’s
conclusion that Grissell entered the barns with the requisite intent.
Grissell also argues that the State failed to prove the element of breaking, at least with
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respect to one of the burglary convictions. It is well settled that using even the slightest force
to gain unauthorized entry satisfies the breaking element of burglary. Keller v. State, 987
N.E.2d 1099 (Ind. Ct. App. 2013). Indeed, “opening an unlocked door or pushing a door that
is slightly ajar constitutes a breaking.” Id. at 1118. In support of his argument, Grissell notes
that Rex Banter testified that the front doors of the wooden barn were sliding doors, and the
rear doors had been removed. Banter testified further that when he discovered that the
wagons were missing, he saw tire tracks coming out of the rear of the building. According to
Grissell, this testimony establishes the wagons taken from the wooden barn were removed
through the open rear part of the barn and, consequently, no breaking occurred. Again,
Grissell simply asks us to reweigh the evidence, judge the credibility of witnesses, and
consider evidence unfavorable to the verdict. Nieman testified that he opened the sliding
door to the wooden barn to gain access to the wagons. Because Nieman opened the front
door to gain entry, whether the wagons were removed through the rear door is irrelevant. See
Calhoon v. State, 842 N.E.2d 432, 436 (Ind. Ct. App. 2006) (noting that “what matters for the
purpose of the burglary statute is how the defendant entered the property, not how he exited
the property” (emphasis in original)); see also Joy v. State, 460 N.E.2d 551, 557 (Ind. Ct.
App. 1984) (explaining that “the acts of a confederate in the commission of a crime may be
imputed to a defendant who did not personally commit each and every element of the
offense”). The evidence was sufficient to establish breaking. Accordingly, the State
presented sufficient evidence to support Grissell’s burglary convictions.
2.
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Grissell also challenges his sentence. Although Grissell frames the issue as a
challenge to the appropriateness of his sentence, his argument is almost entirely directed
toward whether the trial court erred in identifying Grissell’s failure to take responsibility for
his crimes as an aggravating factor. In this manner, Grissell conflates two separate
sentencing standards: whether the trial court abused its discretion in identifying mitigating
and aggravating factors and whether Grissell’s sentence is inappropriate pursuant to Indiana
Appellate Rule 7. “As our Supreme Court has made clear, inappropriate sentence and abuse
of discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind.
Ct. App. 2008). Accordingly, “an inappropriate sentence analysis does not involve an
argument that the trial court abused its discretion in sentencing the defendant.” Id.
With respect to Grissell’s argument concerning the trial court’s consideration of an
allegedly inappropriate aggravating factor, we note that sentencing decisions rest within the
sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified
on reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory range, it is subject
to review only for an abuse of discretion. Id. “An abuse of discretion occurs if the decision
is ‘clearly against the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom.’” Id. at 491 (quoting K.S.
v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its sentencing discretion
in a number of ways, including considering aggravating factors that are improper as a matter
of law. Anglemyer v. State, 868 N.E.2d 482. If the trial court abuses its discretion in one of
these or another way, remand for resentencing is the appropriate remedy “if we cannot say
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with confidence that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491.
Grissell argues that the trial court abused its discretion in considering his failure to
take responsibility for his crime as an aggravating factor. Grissell notes that he pleaded not
guilty and maintained his innocence throughout trial, and he argues that his refusal to admit
guilt or express remorse cannot be considered an aggravating factor. See Kien v. State, 782
N.E.2d 398, 412 (Ind. Ct. App. 2003) (noting that “it is not an aggravating factor for a
defendant, in good faith, to consistently maintain his innocence through all stages of the
criminal proceedings, including sentencing”), trans. denied. Even assuming the trial court
abused its discretion in this regard, remand for resentencing is unwarranted. In its oral
sentencing statement, the trial court identified three aggravating factors: (1) Grissell’s
history of criminal and delinquent behavior; (2) Grissell’s recent violation of probation; and
(3) Grissell’s failure to take responsibility for his crimes. Based on our review of the
sentencing statement, it is clear that the trial court attributed very significant weight to
Grissell’s history of criminal and delinquent behavior and gave Grissell’s failure to take
responsibility relatively little weight. We can therefore say with confidence that the trial
court would have imposed the same sentence had it not considered this factor.
Turning now to Grissell’s challenge to the appropriateness of his sentence, we note that
although a trial court may have acted within its lawful discretion in imposing a sentence,
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate
review and revision of a sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57
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(Ind. Ct. App. 2009) (citing Anglemyer v. State, 868 N.E.2d 482). This appellate authority is
implemented through Indiana Appellate Rule 7(B), which provides that a court “may revise a
sentence authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Anglemyer v. State, 868 N.E.2d at 491. Nevertheless, “we must
and should exercise deference to a trial court’s sentencing decision, both because Rule 7(B)
requires us to give ‘due consideration’ to that decision and because we understand and
recognize the unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the burden of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073
Grissell was convicted of two counts of class C felony burglary. Accordingly, the
applicable sentencing range for each count was between two and eight years, with a four-year
advisory sentence. Ind. Code Ann. § 35-50-2-6 (West, Westlaw current with all legislation of
the 2nd Reg. Sess. of the 118th General Assembly (2014) with effective dates through May 1,
2014). Grissell was sentenced to consecutive terms of six years on each count, resulting in a
twelve-year aggregate sentence.
The following two sentences comprise the entirety of Grissell’s analysis on the
question of whether his sentence is inappropriate: “Grissell’s pastor and Grissell’s father
testified on Grissell’s behalf. Grissell’s father testified Griseel [sic] would have a place to
live and employment if Grissell were free.” Appellant’s Brief at 14 (transcript citations
omitted). Grissell has made no attempt to explain how these facts reflect positively on his
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character. Moreover, he has made no argument whatsoever concerning the nature of his
offenses. We therefore find his argument waived for failure to make a cogent argument. See
Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010) (noting that “it is well-established
that a failure to make a cogent argument regarding the nature of the defendant’s offense and
the defendant’s character results in waiver of the defendant’s appropriateness claim”).
Waiver notwithstanding, we cannot conclude that Grissell’s sentence was
inappropriate. Considering the nature of the offenses, we note that Grissell tricked Nieman,
who was eighteen years old and had no history of criminal or delinquent behavior, into
helping him carry out the burglaries. Considering Grissell’s character, we note that Grissell
was only eighteen years old at the time he committed the burglaries at issue here, but he
already had a long history of committing similar offenses. As a juvenile, Grissell was twice
adjudicated delinquent for acts that would be class C felony burglary if committed by an
adult. Both of the adjudications involved the theft of scrap metal. In 2012, when he was
eighteen years old, Grissell was charged with attempted burglary and attempted theft, again
related to the attempted theft of scrap metal. Grissell pleaded guilty to attempted theft in
return for the dismissal of the attempted burglary charge. Grissell committed the instant
offenses within months of the attempted theft. Grissell also has a history of violating
probation and conditions of bond. In sum, Grissell has displayed an uninterrupted pattern of
criminal behavior that has not been deterred by contact with the criminal justice system. For
all of these reasons, we cannot conclude that his twelve-year aggregate sentence for two
counts of class C felony burglary is inappropriate.
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Judgment affirmed.
MATHIAS, J., and PYLE, J., concur.
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