Thomas Harper v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Jul 14 2016, 8:41 am
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy D. Griner Gregory F. Zoeller
Mishawaka, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas Harper, July 14, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1512-CR-2150
v. Appeal from the Elkhart Circuit
Court.
The Honorable Terry Shewmaker,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 20C01-1410-FA-2
Barteau, Senior Judge
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Statement of the Case
[1] Thomas Harper appeals his conviction for burglary resulting in bodily injury, a
1
Class A felony. We affirm.
Issue
[2] The sole issue Harper raises for our review is whether the State presented
sufficient evidence to sustain his conviction.
Facts and Procedural History
[3] A burglary and shooting took place on January 23, 2014, at a house located at
1415 Franklin Street in Elkhart County. The temperature that day was
approximately eight degrees Fahrenheit, and there was snow on the ground. At
the time of the incident, a gas station and convenience store called the Burger
Dairy was located next door to the Franklin Street house. Gurcharn Singh
owned the Burger Dairy.
[4] The Franklin Street house is divided into two apartments, an upstairs apartment
and a downstairs apartment. Peter Fernandes and Arnaldo Vales lived in the
upstairs apartment. Harsimratpal Singh and Gurpreet Singh lived in the
downstairs apartment. Peter, Gurpreet, and Harsimratpal worked for
Gurcharn. Harsimratpal and Gurpreet worked at the Burger Dairy. Peter
1
Ind. Code § 35-43-2-1 (1999).
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worked at another gas station owned by Gurcharn that was located further from
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the Franklin Street house.
[5] Harsimratpal left work early in the morning of January 23, 2014, returned to his
downstairs apartment, and went to sleep. Peter and Arnaldo left the upstairs
apartment that morning and went to Peter’s place of employment. At some
point, Harsimratpal heard loud noises coming from the upstairs apartment. He
called Gurcharn. Gurcharn left the Burger Dairy and went to the Franklin
Street house to investigate.
[6] Gurcharn climbed the stairs and approached the door to the upstairs apartment.
He noticed there was damage to the door. He testified “[t]he door was smashed
where the locks, the handles, is [sic] and all that [sic] like very bad smashed and
somebody tried to break in . . . and nobody went inside because the door was
still locked.” Tr. p. 104. Gurcharn descended the stairs and returned to work.
Harsimratpal called Gurpreet and told him someone had broken the door to the
upstairs apartment.
[7] Shortly thereafter, Gurcharn received another call from Harsimratpal, asking
him to return to the house because Harsimratpal again heard loud noises
coming from the upstairs apartment. Gurcharn returned, and he and
Harsimratpal stood talking outside of Harsimratpal’s apartment, near the stairs
2
Testimony was presented at trial that indicated Arnaldo also worked for Gurcharn and worked at the gas
station with Peter.
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leading to the upstairs apartment. A man with a handgun emerged from the
upstairs apartment, descended the stairs, and shot at Gurcharn and
Harsimratpal. The man fired the gun three or four times. Gurcharn described
the man as “around [twenty years old],” “normal size,” and five feet, five
inches in height. Id. at 108.
[8] Gurcharn was shot once in each knee. Harsimratpal was shot once in the back.
The shooter ran from the residence. Gurpreet, who had walked to the Franklin
Street house from the Burger Dairy, witnessed the shooting. After the shooter
fled the scene, Gurpreet went back to the gas station, encountered a police
officer who was pumping gas, and reported the incident to the officer.
Gurcharn and Harsimratpal were transported to the hospital for treatment.
[9] When police from the Elkhart City Police Department arrived at the Franklin
Street house, they cordoned-off the area and began an investigation. One
officer found a laptop computer laying on the landing at the top of the stairs
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leading to the upstairs apartment, just outside of the apartment door. The
officer also observed part of the metal locking mechanism for the door frame
and some splintered wood laying on the floor, outside of the entrance to the
apartment, near the laptop. The officer found a bullet embedded in the siding
3
[1] Arnaldo testified he had 5,000 Indian Rupees in a suitcase in the apartment when he left the apartment on
the morning of January 23, 2014. When he returned, the money was gone. The money was not recovered.
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of the house. A firearms expert determined the bullet could have been fired
from a .22 caliber long handgun.
[10] During the investigation of the crime scene, police officers found footprints in
the snow that they believed belonged to the suspect. The police also found a
laptop power cord laying in the snow, in the middle of a street near the burgled
apartment, and additional footprints near the cord. An evidence technician
found a footprint on the door of the upstairs apartment.
[11] The police tracked the footprints away from the scene, through an alley, and to
a residence located at 513 Oakland Avenue in Elkhart County. Approximately
thirty to forty minutes passed between the time police officers were first alerted
to the burglary/shooting and the officers’ arrival at the Oakland Avenue house.
The police surrounded the house.
[12] The Oakland Avenue house has a common-entrance door. Inside of the
common entrance are two separate doors leading to apartment A and
apartment B. Apartment A is the downstairs apartment and apartment B is the
upstairs apartment.
[13] Officers knocked on both apartment doors. No one answered the door at
apartment B. The occupant of apartment A answered the door and told officers
“she had just spoken with someone and allowed them to use [her cell] phone.”
Id. at 263. The occupant later identified the person who used her phone as
Harper. She testified at trial Harper used her cell phone to call his cousin
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“D.J.”, and asked his cousin to “pick him up.” Id. at 282, 289. The call was
made at 12:38 p.m. Evidence was presented that indicated Harper went to
apartment B after using the cell phone.
[14] After assessing the situation at the Oakland Avenue house, the police requested
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assistance from the Special Response Team (SRT). The SRT arrived at
approximately 2:45 p.m. A member of the team used a bullhorn to call to the
individual in the apartment and ask the individual to “come down with your
hands up.” Id. at 339. At this same time, the 911 dispatch center received a call
from an individual stating “they were in the upstairs apartment, [sic] they were
confused what was going on.” Id. at 352. The dispatch center advised the
individual to go downstairs with his hands up. Harper eventually emerged
from the apartment approximately ten to fifteen minutes after the SRT arrived
and was transported to the Elkhart County Jail.
[15] Jerome Wilson was the renter of the upstairs apartment at the Oakland Avenue
house. Harper had spent the night in Wilson’s apartment but left the apartment
the morning of January 23, 2014, when Wilson left to go visit his father.
Wilson locked the apartment door when he left. Wilson returned to his home
when he was told by relatives the Oakland Avenue house was surrounded by
police officers. After the SRT cleared the apartment and Harper was taken into
4
The full name of the person referred to as “D.J.” is D’Andre Goodwin, Jr.
5
The SRT is a team of Elkhart police officers that assist with high-risk search warrants, high-risk arrests, and
hostage situations.
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custody, a police detective obtained consent from Wilson to search his
apartment.
[16] Incident to the search, police found on the floor of a closet a pair of gray
sweatpants and a pair of black, gray, and red colored athletic shoes. The
bottoms of the legs of the sweatpants were wet, and the soles of the shoes also
were wet. A forensic analyst with the Indiana State Police Laboratory
determined the right shoe found in the apartment matched the footprint that the
intruder left on the door of the apartment that was burgled. The police also
found a videogame case that contained U.S. currency. Harper’s fingerprints
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were found on the case. When police officers left the scene of the upstairs
apartment at 513 Oakland Avenue, they locked the doors leading to the
apartment.
[17] On January 24, 2014, the day following the incident, a detective with the
Elkhart Police Department decided to listen to recordings of telephone calls
Harper made from the jail. The detective determined Harper made a call to
D.J., the same person he called from the cell phone the day before. Harper told
D.J. to go to Jerome Wilson’s apartment and look underneath the couch, inside
of a CD case, for some “bread” – a common slang term for money. Id. at 478.
Harper also indicated during the call that he wanted D.J. to retrieve from the
apartment “something [in] the bathroom where you put your feet.” Id.
6
The videogame case and the U.S. currency were not taken from the burgled apartment.
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[18] Based on this information, two police detectives returned to Wilson’s apartment
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and, again, obtained permission from Wilson to search the apartment. When
Wilson and the detectives approached the door to his apartment, they noticed
the lock was broken, the doorplate had “pry marks” on it, and a crowbar was
near the door. Id. at 479. It did not appear that anyone had gained entry into
the apartment. The detectives searched Wilson’s apartment and eventually
found an H & R model .22 caliber revolver in the bathroom, in a cabinet
underneath the sink. The detectives also found a live round of ammunition.
The revolver contained five rounds of .22 caliber ammunition and four spent
bullet casings.
[19] The State charged Harper with two counts of Class A felony burglary resulting
in bodily injury. At the conclusion of the trial, the jury found Harper guilty as
charged. The trial court merged the two convictions and sentenced Harper to a
total sentence of fifty years executed. Harper now appeals.
Discussion and Decision
[20] Harper argues there was insufficient evidence to support his conviction for
Class A felony burglary. In order to convict Harper of Class A felony burglary,
the State was required to prove Harper broke into and entered Peter Fernandes’
apartment with intent to commit theft, and that the burglary resulted in bodily
7
Wilson did not stay in his apartment the night following the incident. He returned to the apartment the
following day and encountered the police detectives upon his arrival.
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injury to another person. According to Harper, the State failed to present
evidence sufficiently linking him to the crime. Harper specifically argues the
State failed to present evidence he was inside the burgled apartment; and, the
State failed to present evidence he was in possession of any stolen property
taken from the residence. In support of his claims, Harper argues the
eyewitnesses to the crime had a close view of the shooter, yet did not identify
Harper as the perpetrator.
[21] Our standard of review for sufficiency of the evidence is well settled. We
neither reweigh the evidence nor judge the credibility of witnesses. Whitlow v.
State, 901 N.E.2d 659, 660 (Ind. Ct. App. 2007). Rather, we consider the
evidence most favorable to the verdict and draw all reasonable inferences that
support the ruling below. Id. at 660-661. We affirm the conviction if there is
probative evidence from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. Id. at 661. It is not necessary that
the evidence “‘overcome every reasonable hypothesis of innocence.’” Drane v.
State, 867 N.E.2d 144, 147 (Ind. 2007) (quoting Moore v. State, 652 N.E.2d 53,
55 (Ind. 1995)).
[22] A conviction may be sustained based on circumstantial evidence. Baltimore v.
State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied. Circumstantial
evidence need not exclude every reasonable hypothesis of innocence; rather,
circumstantial evidence can sustain a conviction if an inference may reasonably
be drawn from the evidence to support the judgment. Id. A burglary or theft
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conviction may be sustained by circumstantial evidence alone. Hill v. State, 531
N.E.2d 1382, 1383 (Ind. 1989).
[23] In support of his argument, Harper directs our attention to Janigon v. State, 429
N.E.2d 959 (Ind. 1982), and Cantrell v. State, 673 N.E.2d 816 (Ind. Ct. App.
1996), trans. denied. In Janigon, our Supreme Court reversed a defendant's
conviction as a participant in a robbery where the evidence most favorable to
the State consisted of: (1) one witness’ testimony that the defendant was seen in
the drug store before it was robbed; (2) the testimony of a police officer that the
defendant was seen afterwards walking in a nearby neighborhood; and (3) a
search of the defendant revealed that he had in his possession bills of the same
denominations as those taken from the drug store. Our supreme court found
this evidence insufficient to support a finding of guilt beyond a reasonable
doubt, stating that “[m]ere presence at the scene of a crime is of itself not
sufficient to sustain a conviction for participation.” Janigon, 429 N.E.2d at 960.
Of particular importance to the court was the fact that “only one of the State’s
witnesses could testify to defendant’s presence at the scene,” and none of the
witnesses was able to identify appellant as the robber. See Id.
[24] In Cantrell, this court reversed the defendant’s conviction for burglary based
upon insufficient evidence. There, the defendant parked his car in the driveway
of a residence, alleging car trouble. A police officer investigated and Cantrell
provided the officer a false name. Shortly after the encounter with the officer,
Cantrell drove away. Approximately five hours later, the homeowners returned
to their home to find the home had been burgled. This court concluded that
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though there was evidence that Cantrell’s presence at the residence was
“suspicious” and there was evidence to imply Cantrell was “‘up to no good,’”
there was “no evidence, circumstantial or otherwise, which connect[ed]
Cantrell with the break-in of the house. There [was] nothing which indicate[d]
that he was inside the residence.” Cantrell, 673 N.E.2d at 820.
[25] Harper maintains “[t]here was far less evidence presented against [him at trial]
than the evidence presented in Cantrell and Janigon.” Appellant’s Br. p. 10. We
disagree.
[26] Arnaldo testified that when he left the Franklin Street apartment on the
morning of the incident, the laptop computer was not laying outside of the door
to the apartment. Arnaldo further testified the door was intact when he and
Peter left the apartment.
[27] A police detective testified at trial as follows regarding the footprints found in
the snow near the burgled apartment: “You could clearly see running footprints
in the snow. They were running away from [the burgled apartment].” Tr. p.
251. The detective further testified the footprints were made by some type of
tennis or athletic shoe and that the footprints were relatively easy to follow.
The evidence technician testified that the footprint found on the door of the
burgled apartment could not have been an old footprint because the powder
used to lift the print “won’t adhere to a – a footwear impression unless it’s still
slightly damp.” Id. at 215.
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[28] Police officers tracked the footprints to the Oakland Avenue house and arrived
at the house approximately thirty to forty minutes after first responding to the
burglary/shooting incident. Upon arrival, the officers learned that an
individual might be inside the upstairs apartment. Harper eventually emerged
from the apartment. Jerome Wilson, the renter of the apartment, testified at
trial that no one was supposed to be in the apartment.
[29] When officers searched the apartment from which Harper emerged, they found
a pair of sweatpants and a pair of athletic shoes that were both wet. The
forensic analyst with the Indiana State Police Department testified,
unequivocally, as follows regarding the match between the tread of the athletic
shoes found in the apartment and the footprint left on the door of the apartment
that was burgled:
There was no error. I came to the conclusion based on the class
and individual characteristics. There was a sufficient amount of
individual amount [sic] characteristics that I felt that it was
beyond any doubt that [the footprint found on the door] was not
made by any other shoes, that it could have been made by this
particular shoe, because it’s also the size and shape of the
impression that matched with the shoe as well. . . . Beyond any
doubt that I had. . . . If I have any doubt, I will not make an ID,
or an identification, or an exclusion.
[30] Id. at 459. Pictures from Harper’s Facebook page were introduced into
evidence. The pictures showed Harper wearing athletic shoes that were similar
to the shoes found in Jerome Wilson’s apartment – the apartment from which
Harper emerged.
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[31] A bullet was recovered from Gurcharn’s knee and from the siding of the
Franklin Street house. Although both bullets were too mangled to determine
whether they were fired from the revolver found in Jerome Wilson’s bathroom,
a firearms expert determined the bullet could have been fired from a .22 caliber
handgun.
[32] Harper made a call from jail to his cousin and told him to go to Jerome
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Wilson’s apartment and retrieve an item from the apartment’s bathroom. This
information led detectives to re-search Wilson’s apartment and discover a .22
caliber revolver. The revolver held nine bullets. Four bullets had been
discharged and five bullets remained in their chambers. One of the victims of
the shooting provided an accurate description of Harper and testified that the
individual who shot him fired the weapon three or four times.
[33] During an interview with a police detective that occurred while Harper was
awaiting trial, Harper indicated that he “did [not] know anything about any
guns or weapons [that might be located] in the [Oakland Avenue] apartment.”
Id. at 516. However, in one of the telephone calls Harper made from the
Elkhart County Jail, he discussed the revolver found in the apartment and
stated that “he was loading one of them up and . . . that he was ready to go to
war, [sic] battle with the police if they tried to come into the apartment.” Id. at
521.
8
All of Harper’s telephone calls from the jail were recorded by the police.
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[34] A police detective testified at trial that she interviewed Harper regarding the
burglary of the upstairs apartment at the Franklin Street house. Harper told the
detective he had been at the apartment on Oakland Avenue all day and had not
left the apartment. Harper’s statement to the detective was contrary to other
information the detective had received. The detective learned from the
occupant of the downstairs Oakland Avenue apartment that Harper had come
to her apartment that day to use her cell phone at 12:38 p.m.
[35] Harper’s claim is, essentially, that the State failed to present sufficient evidence
he was the perpetrator of the crimes. He implies someone else committed the
crimes. He presents additional arguments that the athletic shoes found were a
9
different size from what he wears; the wet clothing found was not the same
color clothing identified by the victims; and, there was no connection
established between the U.S. currency found at the Oakland Avenue apartment
and the burglary at the Franklin Street apartment. Harper’s claims in this
regard are really a request that we reweigh the evidence, which we may not do.
See McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Sufficient evidence was
presented to establish Harper as the perpetrator of the crime and to support
Harper’s conviction for burglary resulting in bodily injury.
9
The athletic shoes found at the Oakland Avenue apartment were a size 7½. Evidence was presented that
Harper wears a size 9 shoe. However, this evidence was derived from a claim made by Harper.
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Conclusion
[36] For the reasons stated above, the judgment of the trial court is affirmed.
[37] Affirmed.
Mathias, J., and Barnes, J., concur.
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