Anthony Allen v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 16 2016, 9:09 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Agency Attorney General
Indianapolis, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Allen, August 16, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1511-CR-1853
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa Borges, Judge
Appellee-Plaintiff. Trial Court Cause No.
49G04-1407-F5-37207
Bradford, Judge.
Case Summary
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[1] On July 24, 2014, an eyewitness called 911 to report what appeared to be a
burglary in progress at MacAllister Machinery (“MacAllister’s”), a Beech
Grove business which sells lawn care equipment. Shortly thereafter, Beech
Grove police arrested two men who had fled police in a truck carrying lawn
care equipment stolen from MacAllister’s. The police utilized K-9 partners to
track and apprehend the suspects. Appellant-Defendant Anthony Allen was
found choking one of the police dogs before being arrested. Allen was
convicted of Level 5 felony burglary, Class A misdemeanor striking a law
enforcement animal, and Class A misdemeanor resisting law enforcement. The
jury instructions and verdict form each had a single scrivener’s error which
incorrectly listed Count II as “striking a law enforcement officer” instead of
“striking a law enforcement animal.” On appeal, Allen argues (1) that there
was insufficient evidence to sustain his burglary conviction, and (2) that his due
process rights were violated based on the defective verdict form. We affirm the
trial court’s judgment.
Facts and Procedural History
[2] On the night of July 24, 2014, Nikita Barbee was parked at a storage facility in
Beech Grove. The storage facility is located adjacent to an abandoned house
which in turn is located next to MacAllister’s, a business which sells lawn care
equipment. Barbee witnessed a two-door white pickup truck park in the field
near the abandoned house from which two people exited and ran around the
opposite side of the house. Barbee then heard loud noises and saw people
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loading objects into the truck. Barbee called the police to report the suspicious
activity and the truck left shortly thereafter.
[3] Beech Grove Police Officer Lee Huffman was dispatched in response to
Barbee’s call and spotted a white two-door pickup truck at a nearby
intersection. Officer Huffman attempted to initiate a traffic stop but the truck
did not stop and, instead, sped away and led Officer Huffman on a high speed
chase. Ultimately, the truck crashed and the driver, Garland Jeffers, and
passenger, Allen, exited the vehicle and fled on foot. When police searched the
truck, they found boxes of lawn care equipment containing leaf blowers, chain
saws, weed eaters, and hedge trimmers. The truck was registered to Kimberly
Allen at a Fort Wayne address, and, inside the truck, there was mail addressed
to Anthony Allen.
[4] Officer Huffman called for assistance from K-9 officers to track the two men.
Officer Jeff Bruner and his K-9 partner located and apprehended Jeffers who
was hiding beneath some brush in a nearby wooded area. Officer Andy
Branham and his K-9 partner Kash located Allen hiding in some bushes.
Officer Branham gave Allen several warnings to surrender and come out or
Officer Branham would release Kash. Ultimately, Officer Branham sent Kash
into the bushes to apprehend Allen. Moments later, Officer Branham heard
Kash making gurgling sounds and, after shining his flashlight into the bushes,
saw Allen grabbing Kash around the neck in an attempt to choke the dog.
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[5] After inspecting the items found in the truck, Officer Tim Williams returned to
MacAllister’s where he found a pair of bolt cutters and a hole cut in the chain
link fence on the east side of the property, which lies between MacAllister’s and
the abandoned house. Officer Williams entered the property through the hole,
approached the nearest door, and, finding it unlocked, went inside. The door
opened to the warehouse section of the business and Officer Williams noticed
pallets and shelving nearby which contained items similar to those found in the
truck including leaf blowers, chainsaws, and weed eaters.
[6] The following day, MacAllister’s branch manager Michael Doyle performed an
inventory, found that the business was missing several items, and identified the
items recovered from the truck by their serial numbers as belonging to
MacAllister’s. On the afternoon before the burglary, Timothy Retherford, the
service manager at MacAllister’s, observed a man in the showroom who
“looked a little off” because he remained in the store by himself for
approximately an hour and a half and did not purchase anything. Tr. p. 256.
Retherford’s description of the man closely matched Allen’s appearance.
During the same time in which the man was in the store, MacAllister’s
surveillance video showed a white two-door pickup truck in the store’s parking
lot.
[7] The State charged Allen with Level 5 felony burglary, Class A misdemeanor
striking a law enforcement animal, and Class A misdemeanor resisting law
enforcement. Allen represented himself pro se at his jury trial which was held
on September 28 and 29, 2015. With respect to Count II, striking a law
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enforcement animal, the preliminary and final jury instructions contained a
scrivener’s error and stated, incorrectly, that Allen was charged with striking a
law enforcement officer. However, the jury instructions went on to provide the
correct charging information and elements instruction for the offense of striking
a law enforcement animal.
Count 2, on or about July 24, 2014, Anthony Allen did
knowingly strangle and/or mistreat a dog owned by a law
enforcement agency, to wit: Indianapolis Metropolitan Police
Department.
***
The crime of mistreating a law enforcement animal is defined by
law as follows: A person who knowingly or intentionally strikes,
torments, injures or otherwise mistreats a law enforcement
animal, commits Mistreating a Law Enforcement Animal, a
Class A misdemeanor.
Tr. pp. 555, 558. The instruction accurately provides the elements required to
prove the offense of striking a law enforcement animal as provided in Indiana
Code section 35-46-3-11. Allen did not object to the apparent scrivener’s error.
[8] The jury found Allen guilty as charged and, on October 21, 2015, the trial court
sentenced Allen to five years for the burglary conviction, one year for striking a
law enforcement animal, and one year for resisting law enforcement, all to be
served concurrently.
Discussion and Decision
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[9] Allen raises two issues for our review: (1) whether there is sufficient evidence to
sustain his burglary conviction and (2) whether his due process rights were
violated when he was charged with striking a law enforcement animal but
convicted of striking a law enforcement officer.
I. Sufficiency of Evidence
[10] When reviewing the sufficiency of the evidence, we consider only
the probative evidence and reasonable inferences supporting the
verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct. App. 2009)
(citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). We do
not reweigh the evidence or assess witness credibility. Id. We
consider conflicting evidence most favorably to the trial court’s
ruling. Id. We will affirm the conviction unless no reasonable
fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id.Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010).
[11] The probative evidence supporting Allen’s burglary conviction is as follows: an
eyewitness saw a white two-door pickup truck pull up near the abandoned
house on the lot adjacent to MacAllister’s. Two men got out of the truck and at
some point began loading large items into the truck. Later that night, Officer
Williams inspected the MacAllister’s property and found a pair of bolt cutters
and a hole cut in the chain link fence which lies between MacAllister’s and the
abandoned house. After entering the MacAllister’s property through the hole,
Officer Williams found that the nearest door, which opened to the
MacAllister’s warehouse, was unlocked. MacAllister’s service manager
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Retherford testified that that door is “normally completely barred and never
used.” Tr. p. 259.
[12] The eyewitness reported that when the truck left, it drove onto Elmwood
Avenue toward Emerson Avenue. Officer Huffman responded to the 911 call
and located a white two-door pickup truck carrying two men near the
intersection of Elmwood and Emerson. The truck led Officer Huffman on a
high-speed chase before crashing. Allen concedes that he was a passenger in
the truck, that there were goods stolen from MacAllister’s in the truck, and that
he was apprehended running from the truck. However, Allen contends that
there was insufficient evidence that he was involved with the breaking and
entering of MacAllister’s or the removing of merchandise therefrom and,
consequently, that his conviction should be reduced to theft. Specifically, Allen
argues that no one could identify him or Jeffers as the men who approached or
cut the chain link fence, entered MacAllister’s, or carried boxes from the
warehouse.
[13] Essentially, Allen argues that evidence against him is insufficient because it is
entirely circumstantial. However, “[c]ircumstantial evidence and the inference
which it supports may be sufficient to warrant a conviction for that offense.”
Higgason v. State, 523 N.E.2d 399, 402 (Ind. 1988). In Higgason, the Indiana
Supreme Court addressed a similar situation where the defendant also
challenged the sufficiency of the evidence supporting his burglary conviction.
The Court reasoned as follows:
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[A]ppellant’s car was observed near the scene of the crime, a high
speed chase ensued, the car was wrecked, appellant fled, was
pursued by police, and arrested at his residence. The property
stolen from [the victim’s] garage and the prybar used to gain
entry to the garage were found in appellant’s car. This evidence is
sufficient to support the conviction.
Id.[14] In addition to the similarly incriminating evidence here, a man matching
Allen’s description was seen acting suspiciously inside MacAllister’s on the day
of the burglary and a white two-door pickup truck was parked outside of the
business around the same time. While the evidence of Allen’s guilt is wholly
circumstantial, it is also overwhelming and leaves no room for any reasonable
theory of innocence, i.e. his unexplained possession of property which had been
stolen just minutes prior. See Allen v. State, 743 N.E.2d 1222, 1230 (Ind. Ct.
App. 2001) (“the unexplained possession of recently stolen property will
support a burglary conviction so long as there is evidence that there was in fact
a burglary committed”). Accordingly, there was sufficient evidence to support
Allen’s conviction for burglary.
II. Defective Verdict
[15] “It is a denial of due process of law to convict an accused of a charge not made.
Where instructions are given or a verdict is rendered on a particular offense
which is not the same as the offense charged reversal usually is warranted.”
Maynard v. State, 508 N.E.2d 1346, 1351 (Ind. Ct. App. 1987) (citations
omitted). “However, an erroneous judgment of conviction of this type does not
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always require reversal. ‘Where the defendant has not been misled and it is
evident that the issues joined under the charging information have been
determined, a simple correction of the judgment, rather than reversal, is the
appropriate remedy.’” Id. (quoting McFarland v. State, 179 Ind. App. 143, 150-
151, 384 N.E.2d 1104, 1109-1110 (1979)). For the following reasons, we find
that Allen has not shown that he was misled in any way by the error on the
verdict form.
[16] The State alleged in Count II of the charging information (both original and
amended) that “on or about July 24, 2014, Anthony Allen did knowingly
strangle and/or mistreat a dog owned by a law enforcement agency, to wit:
Indianapolis Metropolitan Police Department.” Appellant’s App. p. 31, 43.
The preliminary and final jury instructions stated, incorrectly, that Allen was
charged with “Count II Striking a Law Enforcement Officer.” Appellant’s
App. p. 121. However, the jury instructions went on to provide the correct
charging information and elements instruction for the offense of striking a law
enforcement animal.
Count 2, on or about July 24, 2014, Anthony Allen did
knowingly strangle and/or mistreat a dog owned by a law
enforcement agency, to wit: Indianapolis Metropolitan Police
Department.
***
The crime of mistreating a law enforcement animal is defined by
law as follows: A person who knowingly or intentionally strikes,
torments, injures or otherwise mistreats a law enforcement
animal, commits Mistreating a Law Enforcement Animal, a
Class A misdemeanor. Before you may convict the Defendant,
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the State must have proved each of the following beyond a
reasonable doubt: (1) The Defendant (2) knowingly (3)
mistreated a dog, which was a law enforcement animal.
Appellant’s App. pp. 122, 126.
[17] During closing argument, the State made the following argument with regard to
Count II: “You heard testimony from Officer Branham that when Kash went
into the bushes he saw Anthony Allen strangling his dog. He heard gurgling
and choking noises. That proves the other charge that Mr. Allen faces, striking
a law enforcement animal or mistreating a law enforcement animal.” Tr. p.
432. Following Officer Branham’s testimony, the trial court asked Officer
Branham “in your opinion, was the Defendant trying to hurt the dog or stop
from being bit?” to which Officer Branham responded, “I would – in my
opinion say hurt the dog.” Tr. p. 251.
[18] The blank verdict form given to the jury for Count II read as follows:
Verdict
We the Jury, find the Defendant, Anthony Allen, not guilty of
striking a law enforcement animal, a Class A misdemeanor as
charged in Count II.
Dated:_____________ _____________________
Foreperson
Verdict
We the Jury, find the Defendant, Anthony Allen, guilty of
striking a law enforcement officer, a Class A misdemeanor as
charged in Count II.
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Dated:_____________ _____________________
Foreperson
Court’s Ex. 5 (italicized emphases added). The jury returned a guilty verdict on
Count II. The abstract of judgment and sentencing order correctly list the guilty
verdict on Count II as striking a law enforcement animal.
[19] Allen had the opportunity to review all of the aforementioned forms and he
raised no objections. While this would typically waive the issue for review on
appeal, Allen argues that the discrepancy between the charge and conviction
constitutes a violation of his due process rights and so cannot be waived.
Failure to object to an instruction at trial typically results in
waiver of the issue on appeal. Clay v. State, 766 N.E.2d 33, 36
(Ind. Ct. App. 2002). If an instruction is so flawed that it
constitutes fundamental error, however, waiver does not preclude
review on appeal. Id. To qualify as fundamental, an error must
be so prejudicial to the rights of the defendant as to make a fair
trial impossible. Id. Fundamental error is a substantial, blatant
violation of due process.
Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010).
[20] Regardless of whether there has been a fundamental error here, reversal of an
erroneous judgment is not appropriate where the defendant has not been misled
and it is evident that the issues under the charging information have been
determined. Maynard, 508 N.E.2d at 1351. Despite Allen’s claim that he was
misled by the error at issue, he has provided no explanation of how he was
misled or evidence that he, or anyone else, was confused by the jury
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instructions or verdict form. It is clear that the issue which was addressed and
resolved at trial was whether Allen choked or otherwise attacked Officer
Branham’s K-9 partner Kash. The State never alleged that Allen attempted to
or did strike or choke any of the police officers. Because the sentencing order
and abstract of judgment correctly list the guilty verdict on Count II as striking
a law enforcement animal, there is no reason to remand for a correction of
judgment.
[21] The judgment of the trial court is affirmed.
Pyle, J., and Altice, J., concur.
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