Timothy H. Bryant v. State of Indiana ( 2015 )

Aug 07 2015, 8:54 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy H. Bryant, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
90A04-1501-CR-11
v. Appeal from the Wells Circuit Court
The Honorable Kenton W. Kiracofe,
Judge
State of Indiana,
Trial Court Cause No. 90C01-1402-
Appellee-Plaintiff. FC-1
Bradford, Judge.
Case Summary
[1] In 2013, Appellant-Defendant Timothy Bryant owned and operated Summit
City North West All Products (“Summit City”), a pawnshop in Fort Wayne,
Allen County. Bryant was required by local ordinance to upload records of
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 1 of 13
every item purchased by him or pawned at Summit City to LEADS, an online
database established to facilitate the recovery of stolen goods. In September of
2013, authorities received a tip regarding a series of thefts, which led to Isaiah
Burnau, who was found to have pawned a stolen chainsaw at another Fort
Wayne pawnshop. The investigation soon led to Kristy Coverdale and Tony
Haney. As it turned out, several items had been stolen in Wells County and
pawned at Summit City and other pawnshops. It was also discovered that none
of the items purchased from Isaiah, Coverdale, or Haney had been uploaded to
LEADS. Appellee-Plaintiff the State of Indiana charged Bryant in Wells
County with several crimes, and he was ultimately convicted of two counts of
Class D felony aiding, inducing, or causing receiving stolen property and Class
C felony corrupt business influence. Bryant contends that the trial court abused
its discretion in denying his mistrial motion based on alleged prosecutorial
misconduct and that the State failed to establish venue in Wells County. We
affirm.
Facts and Procedural History
[2] In September of 2013, Bryant owned Summit City, a pawnshop in Fort Wayne.
Pursuant to Fort Wayne ordinance, Bryant was required to collect and, within
twenty-four hours, upload information regarding any item sold or pawned to
LEADS. Also in September of 2013, the authorities received a report from
Keith and Debra Burnau that items had been stolen from their home and homes
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 2 of 13
of their relatives. The Burnaus believed that their grandson Isaiah had been
stealing from the homes with the help of Haney and Coverdale.
[3] Wells County Sheriff’s Detective Diane Betz was assigned the case and checked
the LEADS database to see if Isaiah, Haney, or Coverdale had recently sold
items to pawn shops. Detective Betz discovered that Isaiah had recently sold a
chainsaw that had been reported stolen to a Cash America pawnshop in Fort
Wayne. Detective Betz interviewed Isaiah, who admitted that he and
Coverdale had sold stolen items at pawnshops, including stereo equipment
from a car and a train set from a house in Wells County. Isaiah admitted to
selling stolen goods at least a dozen times at Summit City. Detective Betz
searched LEADS again but did not find any record of the stolen items.
[4] Detective Betz also interviewed Coverdale, who admitted that she had driven
Isaiah and Haney from Wells County to Summit City to sell stolen goods. At
the time of the thefts, Coverdale was in a sexual relationship with Bryant, and
the two were in frequent contact by telephone and text message. Coverdale
sold stolen stereo equipment to Bryant at Summit City. Bryant told Coverdale
that he knew the stereo items were stolen but that “he would take care of it” by
“get[ting] rid of [her] LEADS.” Tr. p. 289.
[5] Detective Betz also interviewed Haney. Haney admitted that he had stolen the
trains from a home where his mother worked as a housekeeper and sold them
to Summit City. Haney told Detective Betz that he, Coverdale, and Isaiah took
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 3 of 13
carloads of stolen goods to Summit City and sold them. Detective Betz found
that the trains were being sold by Summit City on eBay.
[6] Detective Betz contacted Fort Wayne Police Detective Joseph Lyons, who
specialized in pawnshops. Detectives Betz and Lyons went to Summit City and
asked employee Thomas Skinner if Summit City had any Pioneer stereo
equipment for sale. Skinner directed the detectives to equipment that matched
the description of equipment that had been stolen in Wells County. The
Detectives also found several collector train engines at Summit City. When the
detectives examined Summit City’s sales records, they found records of sales by
Haney, Coverdale, and Isaiah, none of which had been uploaded to LEADS.
When confronted with the discrepancy, Bryant claimed that he did not believe
he had to upload information about the items to LEADS because they were not
worth enough. There are, in fact, no exceptions made in the LEADS ordinance
for items of low value.
[7] On February 19, 2014, the State filed seven charges against Bryant: two counts
of Class D felony aiding, inducing, or causing theft; two counts of Class D
felony aiding, inducing, or causing receiving stolen property; two counts of
Class D felony conspiracy to commit receiving stolen property; and Class C
felony corrupt business influence.
[8] Bryant’s trial was held October 29 through 31, 2014. During trial, Bryant called
Skinner as a witness. Bryant offered into evidence Defendant’s Exhibit A,
which consisted of Summit City sales records involving Coverdale, Haney,
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 4 of 13
Isaiah, Randy Haney, and Elizabeth Haney.1 Skinner testified that he had had
difficulties uploading transaction information to LEADS. During cross-
examination, the prosecutor asked Skinner why certain purchases from Haney,
Coverdale, and Isaiah were not uploaded to LEADS, Skinner reiterated that he
had had problems with LEADS:
Q. Okay. During any of this period of time that you said you
thought you had, that you testified that you had these alleged
upload problems, did you call Detective Lyons and report upload
problems?
A. I had talked with him and told him that I’d had problems.
Q. How many times during this period of time did you call and
talk to him and were [you] talking about say from May of [2013]
up to the time they came and took the property?
A. It had been two or three times.
Q. Two or three times and wouldn’t it have been helpful to
explain these upload problems occurred to other people by
bringing in these other records to show that you had made
attempts and their property didn’t get uploaded on the…
Tr. p. 379.
[9] Bryant objected to the prosecutor’s statement on the basis that it constituted an
attempt to shift the burden of producing evidence onto Bryant. Bryant also
moved for a mistrial, which motion the trial court denied. During the State’s
1
Elizabeth Haney is Tony Haney’s mother, while Randy Haney’s relationship to Tony is unclear.
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 5 of 13
closing, the prosecutor noted that the burden of proof was on the State. The
trial court also instructed the jury that
[u]nder the law of this State, a person charged with a crime is
presumed to be innocent. To overcome the presumption of
innocence, the State must prove the Defendant guilty of each
element of the crime charged, beyond a reasonable doubt. The
Defendant is not required to present any evidence to prove his innocence
or to prove or explain anything.
Tr. p. 463 (emphasis added). The trial court also instructed the jury that “[t]he
burden of proof is upon the State to prove beyond a reasonable doubt that the
Defendant is guilty of the crime charged.” Tr. p. 463.
[10] Following trial, a jury found Bryant guilty of two counts of aiding, inducing, or
causing receiving stolen property and corrupt business influence. On
November 24, 2014, the trial court sentenced Bryant to an aggregate sentence of
four years of incarceration.
Discussion and Decision
I. Prosecutorial Misconduct
[11] Bryant contends that the trial court abused its discretion in denying his mistrial
motion based on alleged prosecutorial misconduct.
To support a motion for mistrial based upon prosecutorial
misconduct, the defense must show that the prosecutor’s actions
constituted misconduct by reference to established norms of
professional conduct, and that the ensuing prejudice placed him
in a position of grave peril to which he should not have been
subjected. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 6 of 13
843. Whether the misconduct results in grave peril is determined
not by the degree of impropriety involved, but by its probable
persuasive effect upon the jury. Id.; Andrews v. State (1989), Ind.,
536 N.E.2d 507. This effect, in turn, is assessed not by whether
its absence conclusively would lead to an acquittal; rather,
reversal is required where the evidence is close and the trial court
fails to alleviate the prejudicial effect. Johnson v. State (1983), Ind.
App., 453 N.E.2d 365. Even where an isolated instance of
misconduct does not establish grave peril, if repeated instances
evidence a deliberate attempt to improperly prejudice the
defendant, a reversal still may result. Robinson v. State (1973), 260
Ind. 517, 297 N.E.2d 409.
Everroad v. State, 571 N.E.2d 1240, 1244 (Ind. 1991).
[12] Bryant argues essentially that the prosecutor’s comment shifted the burden to
him to establish his innocence by producing documentary evidence that the
problems uploading information to LEADS were real. While “[i]t is improper
for a prosecutor to suggest that a defendant shoulders the burden of proof in a
criminal case[,]” Stephenson v. State, 742 N.E.2d 463, 483 (Ind. 2001), no such
suggestion was made or implied. Bryant called Skinner in an attempt to
establish, inter alia, that records of purchases from the Haneys, Coverdale, and
Isaiah were not uploaded to LEADS due to technical issues. This evidence
contradicted testimony the State presented from Detective Lyons that during his
investigation nobody at Summit City ever blamed technical difficulties for their
failure to upload records. Even assuming that Defendant’s Exhibit A bolstered
Skinner’s testimony (which is a generous assumption), the prosecutor’s
comment was merely a statement on evidence that Bryant himself introduced.
We conclude that, far from improper burden-shifting, this was permissible
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 7 of 13
impeachment of a defense witness, arising from evidence the defendant
introduced. See Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988) (“[A]
prosecutor may comment on the credibility of the witnesses as long as the
assertions are based on reasons which arise from the evidence.”).
[13] Bryant also argues that the prosecutor’s comments were a violation of his Fifth
Amendment right against self-incrimination.
The Fifth Amendment to the United States Constitution provides
that no person “shall be compelled in any criminal case to be a
witness against himself.” This privilege extends to the States
through the Fourteenth Amendment. Withrow v. Williams, 507
U.S. 680, 689, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993). …
In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d
106 (1965), the United States Supreme Court held that the Fifth
Amendment prohibits the prosecution from commenting on a
defendant’s decision not to testify at trial. The Griffin Court
reasoned that comment on the refusal to testify amounts to a
penalty imposed by courts for exercising a constitutional privilege
and that to allow such comment would impinge on the privilege
against self-incrimination by making its assertion costly. Id. at
614, 85 S. Ct. 1229. The Griffin Court noted that a comment on
the defendant’s refusal to testify is “a remnant of the inquisitorial
system of criminal justice, which the Fifth Amendment outlaws.”
Id. (citation and quotation marks omitted).
Owens v. State, 937 N.E.2d 880, 885-86 (Ind. Ct. App. 2010) (footnote omitted).
[14] Again we must disagree with Bryant. Put simply, the prosecutor’s comments
did not explicitly refer to Bryant’s decision not to testify, and we conclude that
no reasonable person could have interpreted them as such. The comments
were, at most, a comment on an arguable weakness of the documents admitted
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 8 of 13
as Defendant’s Exhibit 1, i.e., the lack of records pertaining to persons other
than the Haneys, Coverdale, and Isaiah. We conclude that the prosecutor’s
comments did not implicate Bryant’s Fifth Amendment rights. See Boatright v.
State, 759 N.E.2d 1038, 1043 (Ind. 2001) (“If in its totality, however, the
prosecutor’s comment is addressed to other evidence rather than the
defendant’s failure to testify, it is not grounds for reversal.”).
[15] Moreover, we conclude that to the extent that the prosecutor’s comments were
arguably improper, any small potential of harm caused thereby was cured. The
prosecutor mentioned in closing that the burden of proof rested on the State,
and the trial court’s final instructions made that abundantly clear as well as
informing the jury that Bryant was not required to introduce any evidence on
his behalf or prove anything. We conclude that this was sufficient to cure any
misconduct that the prosecutor might have committed. See Stephenson, 742
N.E.2d at 483 (Ind. 2001) (“It is improper for a prosecutor to suggest that a
defendant shoulders the burden of proof in a criminal case. However, a
prosecutor’s improper statements suggesting a defendant’s failure to present
witnesses may be cured by the trial court advising the jury that the defendant
was not required to prove his innocence or to present any evidence.”) (citation
omitted).
II. Venue
Bryant contends that the State failed to establish venue in Wells County.
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 9 of 13
Except as otherwise provided by law, criminal actions are to be
tried in the county where the offense was committed. Ind. Code
§ 35-32-2-1; Kindred v. State, 540 N.E.2d 1161, 1167 (Ind. 1989).
If an offense is committed in Indiana and it cannot readily be
determined in which county the offense was committed, trial
may be in any county in which an act was committed in
furtherance of the offense. Id. If the commission of an offense is
commenced in one county and is consummated in another
county, trial may be had in either of the counties. Andrews v.
State, 529 N.E.2d 360, 363 (Ind. Ct. App. 1988), reh’g denied,
trans. denied.
It is the State’s burden to prove that the offenses charged
occurred in the county identified in the charging information.
Venue must be proven by a preponderance of the evidence and
may be established by circumstantial evidence. Buzzard v. State,
669 N.E.2d 996, 997 (Ind. Ct. App. 1996).
Wurster v. State, 708 N.E.2d 587, 599 (Ind. Ct. App. 1999)
[16] Bryant does not dispute that at least some of the items stolen and later sold to
him were taken from victims in Wells County, nor does he argue that venue for
the crimes of which he was convicted cannot lie in multiple counties. Bryant
argues only that the State failed to establish Wells County as a proper venue for
his prosecution because it produced no evidence that he knew the items were
stolen from victims in Wells County. This argument is misguided.
[17] In rejecting Bryant’s argument, we find the United States Court of Appeals for
the Fourth Circuit’s resolution of a similar claim to be particularly persuasive.
In United States v. Johnson, the defendant was charged with, inter alia, causing
the filing of a false and fraudulent document with the Securities Exchange
Commission (“SEC”), which charge was dismissed by the district court for the
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 10 of 13
Eastern District of Virginia for lack of venue. 510 F.3d 521, 522 (4th Cir.
2007). Johnson argued in defense of the district court’s dismissal that he could
not have foreseen that the document at issue would be transmitted to the
Eastern District of Virginia, where certain computer servers of the SEC (which
is headquartered in the District of Columbia) are located. Id. at 522, 524.
[18] The Court rejected Johnson’s argument that there should be a mens rea
requirement when it comes to venue. The Court first noted that section 78aa of
Title 15 of the United States Code applied, id. at 524, which provides in part
that “[a]ny criminal proceeding may be brought in the district wherein any act
or transaction constituting the violation occurred.” The Court continued:
In the context of securities offenses, we need not speculate as to
whether there is, or should be, a mens rea requirement when it
comes to venue. This is because the plain text of § 78aa does not
permit us to hold that such a foreseeability requirement exists.
The statute states simply that “[a]ny criminal proceeding may be
brought in the district wherein any act or transaction constituting
the violation occurred.” 15 U.S.C. § 78aa. Accordingly, we
decline the invitation to judicially engraft a mens rea requirement
onto a venue provision that clearly does not have one.
If Congress had wanted to limit venue to those districts where the
defendant could have reasonably foreseen his criminal conduct
taking place, it could have easily done so. Instead, it enacted a
broad venue provision, one that lacked any reference to a
defendant's mental state or predictive calculus, and focused solely
on whether “any act or transaction constituting the violation”
took place in the district. 15 U.S.C. § 78aa.
We are especially reluctant to imply a foreseeability requirement
in light of the fact that it “is well settled that mens rea
requirements typically do not extend to the jurisdictional
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 11 of 13
elements of a crime.” United States v. Cooper, 482 F.3d 658, 664
(4th Cir. 2007). This is because venue is similar in nature to a
jurisdictional element, see United States v. Perez, 280 F.3d 318, 330
(3d Cir. 2002) (noting that venue is “an element more akin to
jurisdiction than to the substantive elements of the crime”)
(quoting United States v. Massa, 686 F.2d 526, 530 (7th Cir.
1982)), and typically lacks any sort of explicit knowledge or
foreseeability prerequisite, see, e.g., Fed. R. Crim. P. 18 (“Unless
a statute or these rules permit otherwise, the government must
prosecute an offense in a district where the offense was
committed.”).
Id. at 527.
[19] Of relevance in this case, Indiana Code section 35-32-2-1(b) provides that “[i]f a
person committing an offense upon the person of another is located in one (1)
county and the person’s victim is located in another county at the time of the
commission of the offense, the trial may be in either of the counties.” There is
no dispute that the victims were in Wells County, where Bryant was tried.
More importantly, and as with the federal statute at issue in Johnson, Indiana
Code section 35-32-2-1 contains no mens rea provisions. Put another way, there
is no requirement that Bryant knew his victims were in Wells County, only that
they were, in fact, located there. As in Johnson, we are unwilling to read a mens
rea requirement into Indiana Code section 35-32-2-1 when the General
Assembly did not include it.
[20] Moreover, as the Indiana Supreme Court has observed,
[v]enue is not limited to the place where the defendant acted. To
the contrary, the legislature may provide for concurrent venue
when elements of the crime are committed in more than one
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 12 of 13
county. Joyner v. State, 678 N.E.2d 386, 390-91 (Ind. 1997).
Similarly, where the precise location of the act is unknowable, a
defendant may not avoid trial on this basis. Cutter v. State, 725
N.E.2d 401, 409 (Ind. 2000).
Baugh v. State, 801 N.E.2d 629, 631-32 (Ind. 2004) (emphasis added). If the fact
that the location of the offense is unknowable will not protect a defendant, then it
follows that proof of such knowledge is not required. The upshot of all of this is
that, even if we assume that Bryant was unaware that the goods were stolen in
Wells County, his ignorance does not shield him from prosecution there. We
conclude that the State adequately established proper venue in Wells County.
[21] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015 Page 13 of 13