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

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.
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[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.
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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.
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[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
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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.
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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.
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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.
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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.
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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
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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
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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.
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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
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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
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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.
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