Livan A. Ruibal v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 24 2018, 7:27 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Livan A. Ruibal, October 24, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-523
v. Appeal from the Floyd Superior
Court
State of Indiana, The Honorable Maria D. Granger,
Appellee-Plaintiff Judge
Trial Court Cause No.
22D03-1610-F5-2103
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018 Page 1 of 7
[1] Following a jury trial, Livan A. Ruibal was convicted of burglary as a Level 5
felony and theft as a Class A misdemeanor. On appeal, Ruibal argues that the
State presented insufficient evidence to support his convictions.
[2] We affirm.
Facts & Procedural History
[3] Around 2:40 a.m. on October 4, 2016, a burglar alarm was tripped at a Verizon
Wireless (Verizon) store located in a strip mall on Grant Line Road in New
Albany. New Albany police officer Ronald Gaines was the first officer at the
scene, arriving about two to three minutes after being dispatched. New Albany
police officer Corey Schneider and others arrived on the scene seconds later.
Officer Gaines drove past the store and parked near a wooded area. The other
responding officers positioned themselves around the store to set up a
perimeter.
[4] Officer Gaines was positioned at the edge of the tree line and made eye contact
with a male suspect, who then immediately fled, running towards the tree line.
Officer Gaines exited his patrol car and ordered the suspect to stop, but the
suspect kept running. Officer Gaines knew the area well and went around the
wooded area in order to cut off a possible escape route to the east along some
railroad tracks. While Officer Gaines was moving to his new position, another
suspect ran behind him, approximately twenty yards away.
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[5] In the meantime, as Officer Schneider walked along the back of the strip mall
where the Verizon store was located, he observed a hole in the wall. Officer
Schneider then saw a man, later identified as Ruibal, running out of the
wooded area wearing black clothes, a black ski mask, and a black backpack.1
Officer Schneider ordered Ruibal to the ground, but Ruibal turned around and
started running back toward the wooded area. About halfway back, Ruibal
gave up and stopped. He then followed Office Scnheider’s commands, first
removing his backpack and setting it on the ground, and then lying on the
ground himself. The ski mask and backpack were on the ground next to Ruibal
when Officer Schneider took him into custody.
[6] Ruibal was the first of four suspects discovered in the area 2 and taken into
custody. Ruibal had a Florida identification on his person.3 In a nearby
parking lot, Officer Gaines located a Ford Expedition with a Florida license
plate. During a subsequent search of the vehicle, officers found receipts for
tools, one being a receipt for a rotary hammer and a cut-off wheel and another
for an angle grinder and some abrasive blades. Inside Ruibal’s backpack,
officers discovered a sledgehammer, a reciprocating saw, and additional tools.
1
Ruibal was the individual who crossed behind Officer Gaines. Ruibal then encountered Officer Schneider.
Officer Gaines could see what was transpiring between Officer Schneider and Ruibal. Officer Gaines waited
until Ruibal was secured by Officer Schneider and then he continued to the railroad tracks to maintain the
perimeter. He could hear other suspects moving through the wooded area.
2
A second suspect was found crawling on his stomach in a nearby ditch and two others hid in the wooded
area until they were apprehended by a K9 officer.
3
The other three suspects were also from Florida.
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A second backpack identical to the one carried by Ruibal was located near the
Verizon store and contained an angle grinder, hammer drill, a headlamp
flashlight, gloves, and tape, among other things.
[7] The hole in the back wall of the building was created by cutting and knocking
out bricks and was large enough for a person to pass through.4 Looking
through the hole, the officers could see that a safe inside the Verizon store had
been cut and pried open. There were three electronic devices missing from the
store that were later recovered from the backpack of one of the last suspects
apprehended. The stolen property included two phones and a tablet, which
collectively were valued at $1100-$1200. The store manager gave no one
permission to enter the store that night or early morning and take property.
[8] On October 6, 2016, the State charged Ruibal with Count I, burglary as a Level
5 felony; Count II, criminal mischief as a Class A misdemeanor; Count III,
resisting law enforcement as a Class A misdemeanor; and Count IV, theft as a
Class A misdemeanor. A jury trial was held on January 2 and 3, 2018. At the
start of the trial, the court granted the State’s motion to dismiss Count III. At
the conclusion of the evidence, the jury found Ruibal guilty of the remaining
counts. The trial court held a sentencing hearing on January 31, 2018. At that
hearing, the trial court granted the State’s motion to dismiss Count II. The trial
court then sentenced Ruibal to five years on Count I and assessed fines and
4
A second, smaller hole in the building was also discovered. It was believed that this hole was created in
order to access an electrical outlet for operating the tools.
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costs on Count IV. Ruibal now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
[9] Ruibal argues that the State presented insufficient evidence to support his
convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the evidence and the
reasonable inferences supporting the verdict, our task is to determine whether
there is substantial evidence of probative value from which a reasonable jury
could find the defendant guilty beyond a reasonable doubt. Moore v. State, 652
N.E.2d 53, 55 (Ind. 1995). Moreover, a conviction may be based purely on
circumstantial evidence. Id.We will not disturb a verdict if the jury could reasonably infer
that the defendant is guilty beyond a reasonable doubt from the
circumstantial evidence presented. On appeal, the circumstantial
evidence need not overcome every reasonable hypothesis of
innocence. It is enough if an inference reasonably tending to
support the verdict can be drawn from the circumstantial
evidence.
Id. (citations omitted). Although presence at a crime scene alone is insufficient
to sustain a conviction, presence combined with other facts and circumstances,
including the defendant’s course of conduct before, during, and after the
offense, may raise a reasonable inference of guilt. Maul v. State, 731 N.E.2d
438, 439 (Ind. 2000).
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[10] To support Ruibal’s conviction for burglary as a Level 5 felony, the State was
required to prove that Ruibal “broke and entered the building or structure of
another person [Verizon], with intent to commit a felony or theft in it.” Ind.
Code § 35-43-2-1. To support his conviction for theft as a Class A
misdemeanor, the State was required to prove that Ruibal knowingly or
intentionally exerted unauthorized control over the property of Verizon with
intent to deprive Verizon of any part of the use or value of the property. See
I.C. § 35-43-4-2(a)
[11] Ruibal argues that the evidence is insufficient to sustain his convictions because
the State’s evidence is entirely circumstantial and only tends to establish a
suspicion of guilt. As set forth above, police were dispatched in response to a
burglar alarm at a Verizon store in the middle of the night. Within minutes of
the alarm being triggered, Ruibal, who was wearing black clothing and a black
ski mask, was seen running in the area near the Verizon store. Upon
encountering a police officer and being ordered to stop, Ruibal reversed
directions and ran a short distance before surrendering.
[12] Ruibal carried a black backpack that contained a reciprocating saw, a hammer,
and other tools. A backpack identical to the one carried by Ruibal was
discovered near the Verizon store and it too contained various tools. Electronic
items taken from the Verizon store were found in a backpack carried by one of
three other suspects who were found hiding or attempting to flee from the area.
A hole in the back wall of the Verizon store, large enough for a person to pass
through, had been created by cutting through brick. The safe inside the store
Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018 Page 6 of 7
had been cut and pried open. In addition, Ruibal carried a Florida
identification card and a vehicle with Florida plates was located in a parking lot
near the Verizon store. Receipts for several of the tools found in the backpacks
were located in this truck.
[13] Although the evidence proving that Ruibal committed burglary and theft was
circumstantial, it was nevertheless substantial. Indeed, a reasonable inference
can be drawn from the foregoing facts that Ruibal was one of four men who
burglarized the Verizon store that morning. The State’s evidence was more
than sufficient to support Ruibal’s convictions for Level 5 felony burglary and
Class A misdemeanor theft.
[14] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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