Cissy Chantel Mae Russell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 15 2016, 11:24 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Travis S. Friend Gregory F. Zoeller
Andrew L. Teel Attorney General of Indiana
Haller & Colvin, P.C.
Fort Wayne, Indiana Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cissy Chantel Mae Russell, November 15, 2016
Appellant-Defendant, Court of Appeals Case No.
90A02-1602-CR-355
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Plaintiff. Kiracofe, Judge
Trial Court Cause No.
90C01-1410-F4-3
Najam, Judge.
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Statement of the Case
[1] Cissy Chantel Mae Russell appeals her conviction for burglary, as a Level 4
felony, following a jury trial. She raises two issues on appeal, namely:
1. Whether the trial court abused its discretion when it
admitted State’s Exhibit 24, which was a map that
summarized cell phone locations.
2. Whether the State presented sufficient evidence to support
the conviction.
[2] We affirm.
Facts and Procedural History
[3] Russell is the estranged half-sister of Kelly Gartin (“Kelly”). In September
2014, Kelly lived with her husband, Andrew Gartin (“Andrew”), in a house in
rural Wells County, and Russell lived in Connecticut. On the morning of
September 23, 2014, the Gartins each left for work by 7:30 a.m. Kelly was the
last person to leave the house, and she closed the entry door but left it unlocked.
Later that morning, the Gartins’ neighbor, James LeMaster, heard a truck
engine revving on the Gartins’ property. LeMaster called Kelly to let her know
that there was a noise coming from her property, and he then proceeded to the
Gartins’ property to investigate.
[4] Once at the property, LeMaster saw two vehicles behind the Gartins’ residence:
a red pickup truck and a silver pickup truck. LeMaster recognized the red truck
as belonging to the Gartins. The rear bumper of the silver truck was
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approximately twelve to fifteen feet from the door of the Gartins’ residence.
Both trucks were stuck in the mud. LeMaster found a woman, later identified
as Russell, standing by the bed of the silver pickup truck. Russell appeared to
be nervous, and she looked as if she had been sweating profusely. When
LeMaster asked Russell who she was, Russell initially said she was Kelly’s
aunt. However, Russell later apologized to LeMaster and informed him that
she was not Kelly’s aunt, but her half-sister. LeMaster asked Russell why she
was there, but Russell did not answer.
[5] LeMaster conversed with Russell for approximately an hour before Kelly
arrived. During that time, LeMaster noticed a number of items in the bed of
the silver pickup truck, including a large rectangular object, but they were all
covered up with blankets. During her conversation with LeMaster, Russell
stated that she had traveled to Indiana from the East Coast to help a friend
move and then to see her mother. However, Russell and Kelly’s mother,
Rabecka Grossman, was actually on vacation in another state at that time.
And, prior to leaving for her vacation, Grossman had informed Russell that
Grossman would be out of town from September 22 through September 29,
2014.
[6] At around noon, Andrew arrived at the property, having learned from Kelly via
text that there was a disturbance at their home. Andrew asked Russell why she
was there, and Russell stated she was there to help a friend move. Russell said
she had driven to the rear of the Gartins’ home “to see if [the Gartins] would
come out and talk to her because she thought someone was home.” Tr. at 312.
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Andrew also saw items in the bed of the silver pickup truck that were covered
with blankets.
[7] Kelly arrived at the property approximately fifteen to twenty minutes after
Andrew had arrived, and she asked Russell why Russell was there. Russell
responded that she was there to throw some things in the Gartins’ dumpster and
to see Kelly and then see Russell and Kelly’s mother. Russell stated that she
had driven to the back of the Gartins’ house because she thought that would
cause Kelly to come out of the house to speak with her. While she spoke to
Kelly, Russell sat on top of the large rectangular object covered with a blanket
in the bed of the silver pickup truck. LeMaster then pulled Russell’s truck out
of the mud using a tractor, and Russell left the property in the silver pickup
truck.
[8] After Russell left, Andrew and Kelly noticed that items were missing from their
home, including a chainsaw, jewelry boxes, DVDs, Andrew’s prescription
drugs, children’s games, and a gun safe. The gun safe was approximately the
same size as the large covered rectangular object on which Russell had been
sitting in the bed of her pickup truck. The gun safe weighed approximately 100
to 150 pounds when empty, but it had had nine guns in it on September 23.
The safe had been located in the Gartins’ bedroom, which was on the opposite
side of the house from the entrance near which Russell’s pickup truck had been
parked.
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[9] Andrew called the Wells County Sheriff’s Department to report the stolen
items. Detective Randy Steele’s subsequent investigation of the crime included
photographing the Gartins’ residence. Detective Steele suggested that the
Gartins attempt to contact Russell. Kelly was able to reach Russell’s husband
on his cell phone, but he was unaware of Russell’s trip to Indiana. Detective
Steele also reached Russell’s husband on his cell phone and asked him to have
his wife contact Steele.
[10] In the early morning of September 24, Russell called the Wells County Sheriff’s
Department from a gas station on Interstate 76 in Portage County, Ohio, and
spoke with a dispatcher. Russell told the dispatcher that she had gotten a
message from Andrew that she was going to be arrested, and she asked the
dispatcher what she should do. The dispatcher told Russell to stay where she
was and a deputy would be sent to speak with her. Deputy Mark Millhoff of
the Portage County Sheriff’s Office went to Russell’s location at approximately
2:30 a.m. on September 24 and found Russell in the silver pickup truck. After
obtaining Russell’s consent to a search of her truck, Deputy Millhoff searched
the bed of the pickup truck and found only moving blankets and a “hand truck
moving dolly.” Id. at 258. Russell then gave a statement to Deputy Millhoff in
which she denied ever entering the Gartins’ residence or outbuildings. Russell
also stated that she had transported various garbage items from Connecticut to
Indiana, where she had intended to dispose of them. Deputy Millhoff advised
Russell that she was free to leave.
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[11] On October 2, law enforcement in Stark County, Ohio, discovered items from
the Gartins’ home that had been dumped alongside a trail located in Canal
Fulton, Ohio. These items included Andrew’s prescription bottles and a
necklace that the Gartins’ daughter had made. The officers collected the items
and sent them to the Wells County Sheriff’s Department.
[12] The State charged Russell with burglary, as a Level 4 felony. At the ensuing
jury trial, the court admitted into evidence, without objection, State’s Exhibit
23, which consisted of records the State had subpoenaed from Verizon Wireless
for a cell phone belonging to Russell.1 The trial court also admitted, over
Russell’s objection to an “insufficient foundation,” Exhibit 24, which was a
map of areas of Ohio from which Russell had placed cell phone calls on
September 23 and 24. Wells County Detective Diane Betz testified that, using
her training on cell phone technology, she was able to summarize the
complicated cell phone records contained in Exhibit 23 into the more easily
understood map contained in Exhibit 24. The map depicted the locations of
Russell’s cell phone at the dates and times of three calls. Detective Betz had
generated the map by retrieving latitude and longitude data from the Verizon
records in Exhibit 23 and typing that data into a “Streets and Trips” application
that converts latitudes and longitudes into specific pinpoints on a map. Id. at
420, 422. One of the calls depicted in Exhibit 24 was placed near Canal Fulton,
1
The State had previously provided the records contained in State’s Exhibit 23 to Russell. Tr. at 426.
However, the State did not print out all of the records contained in Exhibit 23 because it was too voluminous
to conveniently do so. Tr. at 418.
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Ohio, at “0946 hours” on September 24 from “40.89142 degrees N 81.57404
degrees W,” and another was placed near the gas station on Interstate 76 in
Portage County, Ohio, later that same day. State’s Ex. 24.
[13] The jury found Russell guilty as charged, and the trial court entered judgment
of conviction and sentence accordingly. This appeal ensued.
Discussion and Decision
Issue One: Admission of Evidence
[14] Russell first contends that the trial court erred when it admitted into evidence
State’s Exhibit 24. We review a trial court’s admission or exclusion of evidence
for an abuse of discretion, which occurs if the court’s decision is clearly against
the logic and effect of the facts and circumstances before the court. Speybroeck v.
State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007).
[15] This case is similar to McCowan v. State, 10 N.E.3d 522 (Ind. Ct. App. 2014),
summarily aff’d in relevant part, 27 N.E.3d 760, 768 (Ind. 2015), where we upheld
the admission of testimony that was similar to Betz’s testimony and made by an
officer with training similar to Betz’s training. In McCowan, the officer used his
special training on cell phone technology to read Verizon cell phone records
and, from those records, plot out on a map the defendant’s location at certain
times and places. The officer then testified about the map which summarized
the information from the Verizon cell phone records. We held that such
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testimony was admissible2 because the witness was not offering expert witness
testimony, but using his specialized training to testify about general principles
to help the jury understand the information contained in the Verizon cell phone
records. Id. at 532-33.
[16] As in McCowan, Betz “did not personally perform any calculations or analysis
to render an opinion about the location of [Russell’s] phone.” Id. at 532.
Rather, she used her training to read the complicated Verizon records in State’s
Exhibit 23—which had already been admitted without objection—to
summarize and present that information in a way that would help the jury
understand, i.e., in the form of the map contained in State’s Exhibit 24.3
Testimony presented by such a “skilled witness” was admissible under Indiana
Rule of Evidence 701 because it was rationally based on Betz’s perception of
the information contained in the State’s already-admitted Exhibit 23 and
because it was helpful to the jury’s clear understanding of the complicated
Verizon cell phone records. See, e.g., Satterfield v. State, 33 N.E.3d 344, 353 (Ind.
2015). And, as Exhibit 24 was “a summary, chart or calculation to prove the
content” of the voluminous records in already-admitted Exhibit 23 that could
2
We actually held that the defendant had waived his objections to both the cell phone records and the
officer’s testimony about those records but, notwithstanding waiver, the records and testimony were
admissible. Id. at 525-26.
3
Thus, Russell is incorrect when she states that the “RTT [i.e., real time tool] records” on which Betz relied
for Exhibit 24 “were never presented as evidence.” Appellant’s Br. at 19. It is clear that those records were
part of State’s Exhibit 23. Tr. at 419.
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not be easily examined in court, it was admissible pursuant to Indiana Rule of
Evidence 1006.
[17] Moreover, as the trial court noted, Russell had the opportunity to, and did,
cross-examine Betz about State’s Exhibit 24. It was up to the jury to weigh that
evidence and judge the credibility of the witness. McCowan, 10 N.E.3d at 533
(“[A]ny dispute regarding the accuracy of the estimates [of the cell phone
locations] went to the weight rather than to the admissibility of the evidence
and should be addressed through cross-examination.”). The trial court did not
abuse its discretion in admitting State’s Exhibit 24 and Betz’ testimony related
to that exhibit.
Issue Two: Sufficiency of the Evidence
[18] Russell maintains that the State failed to provide sufficient evidence to support
her conviction. In reviewing a sufficiency of the evidence claim, we neither
reweigh the evidence nor assess the credibility of the witnesses. See, e.g., Jackson
v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative
evidence and reasonable inferences therefrom that support the conviction,
Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans. denied, and we
“consider conflicting evidence most favorably to the [fact-finder’s] ruling,”
Wright v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the probative
evidence and reasonable inferences drawn from that evidence “could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.” Jackson, 925 N.E.2d at 375.
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[19] To prove Russell committed burglary, as a Level 4 felony, the State was
required to show that Russell broke and entered a building that was a dwelling
of another person with the intent to commit a felony or theft in that building.
Ind. Code § 35-43-2-1 (2014). Russell does not dispute that someone broke and
entered into the Gartins’ residence with the intent to steal their property.
Rather, she maintains that the State failed to provide sufficient evidence that
she was that person because, she alleges, there was no evidence that anyone
saw her in the Gartins’ home or outbuildings or saw her in possession of the
Gartins’ stolen property. However, it is well-established that a crime may be
proven by circumstantial evidence if the trier of fact may reasonably draw
inferences from such evidence that enable it to find the defendant guilty beyond
a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001). And,
although mere presence at the crime scene is insufficient proof to support a
conviction, “presence at the scene coupled with other circumstances tending to
show participation in the crime may be sufficient to sustain a guilty verdict.”
Rohr v. State, 866 N.E.2d 242, 248-49 (Ind. 2007).
[20] Here, the witness testimony and the State’s exhibits showed that Russell was at
the back of the Gartins’ home on the morning of September 23, 2014, after the
Gartins had left the home without locking the door. A neighbor discovered that
Russell had her pickup truck parked by the Gartins’ door, and the bed of the
truck contained objects covered up with blankets. Russell gave conflicting
accounts to the neighbor and the Gartins about why she was in Indiana and at
the Gartins’ residence, and she appeared nervous. After Russell left, the
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Gartins noticed items missing from their residence that were not missing before
Russell was there. Russell’s cell phone records show that she traveled from
Indiana through Ohio on September 23 and 24, during which time she made
several cell phone calls. State’s Exhibits 23 and 24 show that Russell made a
cell phone call from Canal Fulton, Ohio on September 24 at 9:46 a.m.
Approximately one week later, Ohio law enforcement found some of the
Gartins’ stolen property in Canal Fulton, Ohio. It was reasonable for the jury
to infer from all of that circumstantial evidence that Russell broke and entered
the Gartins’ residence with the intent to steal their property.4 The State
provided sufficient evidence to support Russell’s burglary conviction.
[21] Affirmed.
Vaidik, C.J., and Baker, J., concur.
4
Russell contends that it was a “physical impossibility” for her to have stolen the Gartins’ gun safe because
it was too heavy for her to have carried it by herself. Appellant’s Br. at 20-22. Given the evidence that all the
items in the bed of Russell’s pickup truck were covered by blankets on September 23 and that a dolly and
blankets were in the bed of her truck on September 24, there was circumstantial evidence from which the jury
could reasonably infer that Russell used a dolly to move the gun safe to her truck and that it was not visible
on September 23 because it was covered with a blanket, like all the other items in her truck at that time.
Regardless, additional items were stolen from the Gartins’ residence that Russell could have easily carried,
e.g., jewelry boxes.
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