Caleb Sullivan v. State of Indiana

FILED
May 25 2017, 10:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Caleb Sullivan, May 25, 2017
Appellant-Defendant, Court of Appeals Case No.
52A02-1610-CR-2499
v. Appeal from the Miami Circuit
Court
State of Indiana, The Honorable Timothy P. Spahr,
Appellee-Plaintiff Judge
Trial Court Cause No.
52C01-1509-F2-35
Baker, Judge.
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[1] Caleb Sullivan appeals his convictions for Level 4 Felony Burglary,1 Level 6
Felony Conspiracy to Commit Dealing in a Controlled Substance, 2 and Level 6
Felony Theft.3 Sullivan raises two arguments: (1) there is insufficient evidence
supporting his convictions for burglary and theft; and (2) his convictions for
conspiracy to commit dealing in a controlled substance and theft are barred by
the prohibition against double jeopardy. Finding sufficient evidence and no
double jeopardy violation, we affirm.
Facts
[2] On the night of September 23, 2015, Sullivan was staying in Peru with his
friend, Wally Taylor, and Taylor’s girlfriend, Jennifer Rairigh. Sullivan and
Taylor were regular drug users and wanted to get high. Sullivan brought up the
idea of robbing a nursing home where he used to work. Sullivan knew how to
gain access to the nursing home and knew that there were narcotics inside.
Sullivan and Taylor agreed to steal narcotics from the nursing facility and then
sell those drugs for money to buy heroin.
[3] Around 1:00 a.m. on September 24, 2015, Taylor and Sullivan took Rairigh’s
minivan and drove to the Aperion Health Care nursing home facility. Sullivan
1
Ind. Code § 35-43-2-1.
2
I.C. 35-43-4-2(a)(1). This statute was amended in the most recent legislative session. The amendments are
not relevant to this case, but we cite to the version of the statute that was in effect at the time Sullivan
committed the offense.
3
Ind. Code § 35-41-5-2.
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exited the van to see who was working that night; when he returned, he told
Taylor that his old boss, Doreen Brunner, was on duty. Sullivan donned a
mask and blue surgical gloves, took a black BB-gun from the minivan, and
entered the Aperion facility from the side entrance. Taylor waited in the
minivan in the parking lot.
[4] Inside, Brunner looked up and saw a masked man approach the nurse’s station
in the common dining room area. Sullivan appeared to be holding a gun at his
waist and ordered Brunner to “open the box.” Tr. Vol. II p. 150-51. He flipped
open a drawer on the cart where the narcotics were stored and told Brunner,
“Hurry up. I’m not playing.” Id. at 151. Brunner noticed that Sullivan was
trying to disguise his voice. She unlocked the box and placed blister packs of
narcotics into a bag that Sullivan handed her. Sullivan then asked for the code
he could use to exit the facility, which she provided. 4 Sullivan ran to the door,
punched in the code, and exited the building.
[5] Brunner immediately called 911. Although Sullivan had been wearing a mask,
Brunner recognized him from his gait and general body build. She also
believed it was him because he knew the security code to enter the facility,
knew that he needed a different code to exit the facility, and knew where the
narcotics box was located.
4
The code to exit the facility is changed frequently to ensure that residents are not able to make unauthorized
exits from the building.
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[6] Following the burglary, Sullivan returned to the minivan, which Taylor drove
back to Rairigh’s home. Rairigh was angry because she had been trying to
contact Taylor and he had not responded, so she refused to let the men inside
the house. Sullivan and Taylor walked to an abandoned house a couple of
blocks away, where they removed the medication from the blister packs. In
total, Sullivan had taken 642 pills of controlled substances, including Vicodin,
Xanax, Percocet, Ultram, and Ambien. Sullivan and Taylor each took half of
the pills. After they parted ways, Taylor sold sixty to seventy of the pills for a
total of $400, or about $5 apiece.
[7] Police eventually found and arrested Sullivan. On September 30, 2015, the
State charged Sullivan with multiple offenses. After a later amendment,
Sullivan was ultimately charged with the following crimes: Level 4 felony
burglary, Level 5 felony robbery, Level 6 felony residential entry, Level 6 felony
conspiracy to commit dealing in a controlled substance, Level 6 felony theft,
and Class A misdemeanor possession of a controlled substance.
[8] On August 31, 2016, following a trial, a jury found Sullivan guilty as charged.
The trial court vacated the residential entry conviction to avoid double jeopardy
concerns. On September 30, 2016, following a sentencing hearing, the trial
court sentenced Sullivan to the following concurrent terms: eight years, with
two years suspended to probation, for Level 4 felony burglary; eight years, with
two years suspended to probation, for Level 5 felony robbery; one year and 182
days for Level 6 felony conspiracy; one year and 182 days for Level 6 felony
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theft; and one year for Class A misdemeanor possession of a controlled
substance. Sullivan now appeals.
Discussion and Decision
I. Sufficiency
[9] Sullivan argues that the evidence is insufficient to support his convictions for
burglary and theft. When reviewing a claim of insufficient evidence, we will
consider only the evidence and reasonable inferences that support the
conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm
if, based on the evidence and inferences, a reasonable jury could have found
the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009).
A. Burglary
[10] To convict Sullivan of Level 4 felony burglary, the State was required to prove
beyond a reasonable doubt that he broke and entered a building or structure
that is a dwelling of another person with the intent to commit a felony or theft
in it. I.C. § 35-43-2-1(1). Sullivan argues that there is insufficient evidence
establishing that the common dining room area of the nursing home is a
dwelling. “Dwelling” is defined as “a building, structure, or other enclosed
space, permanent or temporary, movable or fixed, that is a person’s home or
place of lodging.” Ind. Code § 35-31-5.2-107.
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[11] The legislature has imposed an increased penalty for burglarizing a dwelling
“because of the potential danger to the probable occupants” of the dwelling.
Howell v. State, 53 N.E.3d 546, 549 (Ind. Ct. App. 2016), trans. denied. Here,
there were at least twenty-two residents present in their rooms near the
common dining area where the burglary occurred. In fact, the residents’ rooms
were so close to the area that Brunner worried that one of them might awaken
during the burglary and be in danger, which is the very harm the legislature
sought to prevent.
[12] Sullivan directs our attention to Robertson v. State, 765 N.E.2d 138 (Ind. 2002),
in support of his argument. In Robertson, our Supreme Court interpreted the
statute prohibiting the unlicensed possession of a handgun outside of one’s
dwelling. In that case, the defendant had been convicted of that crime when he
walked into the common hallway area of his apartment building while carrying
an unlicensed handgun. Our Supreme Court ultimately concluded “that
‘dwelling’ does not include the common areas serving a person’s apartment”
because “the legislature cannot have intended to permit the carrying of
unlicensed handguns in all apartment common areas that a person may claim
as part of their place of lodging.” Id. at 139-40.
[13] Sullivan argues that the common dining area in the nursing home facility is
analogous to the common hallway area in the apartment building in Robertson.
We disagree. While the nursing home facility contains private rooms that
house one or two residents, those rooms do not constitute the entirety of the
residents’ living area. The residents eat all their meals and do all their activities
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in the dining room area; Brunner testified that “[e]verything they do is out
there” and agreed that the area is “part of their living quarters[.]” Tr. p. 160.
[14] We question the applicability of the Robertson holding to the definition of
“dwelling” in the context of the burglary statute, but we leave that question for
another day, as we find this nursing home easily distinguishable from an
apartment building. Here, it is apparent that the common dining area is a part
of the residents’ daily lives. They “dwell” in that area as much as they “dwell”
in their private rooms. Consequently, we find sufficient evidence supporting
the jury’s conclusion that the nursing home constitutes a dwelling and
Sullivan’s conviction for Level 4 burglary.
B. Theft
[15] To convict Sullivan of Level 6 felony theft, the State was required to prove
beyond a reasonable doubt that he knowingly or intentionally exerted
unauthorized control over the nursing home’s medication, which had a fair
market value of at least $750, with the intent to deprive the nursing home of any
part of the medication’s value or use. I.C.§ 35-43-4-2. Sullivan argues that
there is insufficient evidence establishing the value of the medication.
[16] At trial, Taylor testified that the two men divided up the 642 stolen pills.
Taylor sold sixty to seventy pills out of his share for a total of approximately
$400. He testified that the pills were worth about $5 each. Consequently, the
total value of all the stolen pills would exceed $3,000.
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[17] Sullivan argues that evidence of the black market value of the pills is improper.
Instead, Sullivan contends that the State should have introduced evidence of the
value of the pills in the commercial market—i.e., pharmacy value. Sullivan
notes that “[t]he issue of whether the black market value of controlled
substances can be used for purposes of proving felony theft has not been
addressed in Indiana.” Appellant’s Br. p. 11.
[18] In support of his argument, Sullivan directs our attention to Ridenour v. Furness,
546 N.E.2d 322 (Ind. Ct. App. 1989), in which this Court reviewed the
computation of damages for the illegal trapping of protected sport fish by
commercial fishermen in Lake Michigan. Damages were to be calculated by
measuring the “fair market value of the property at the time of loss.” Id. at 325.
In that case, however, there was no fair market value “because it is illegal in
Indiana to sell the various species of sport fish destroyed here.” Id. at 325 n.1.
According to Sullivan, this aside in Ridenour establishes that the black market
value of property cannot be used to establish the property’s fair market value.
[19] The Ridenour Court observed that although there was no commercial market for
the fish, the value of the fish could be calculated by looking at a number of
other factors. Id. at 326-27 (examining, among other things, actual hatchery
production costs, mortality rate of the fish, size of the fish, cost of feeding the
fish, etc.). We see nothing in Ridenour—or any other relevant caselaw—that
would require a factfinder to value an item based only on the commercial
market value, even where that value is readily ascertainable.
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[20] This Court has explained that “[t]he fair market value is ‘the price at which
property would change hands between a willing buyer and seller, neither being
under any compulsion to consummate the sale.’” Pitcavage v. Pitcavage, 11
N.E.3d 547, 564 (Ind. Ct. App. 2014) (quoting City of Carmel v. Leeper Elec.
Servs., Inc., 805 N.E.2d 389, 395 (Ind. Ct. App. 2004)). In this case, the State
presented evidence that willing buyers paid $5 per pill. We see no reason to
question this evidence simply because it is evidence of the black market value.
Therefore, we find the evidence sufficient to support Sullivan’s theft conviction.
II. Double Jeopardy
[21] Finally, Sullivan argues that his convictions for conspiracy to commit dealing in
a controlled substance and theft violate the prohibition against double jeopardy.
The Indiana Constitution provides that “[n]o person shall be put in jeopardy
twice for the same offense.” Ind. Constitution, Art. I, § 14. Two or more
offenses are the “same offense” if the essential elements of one offense establish
the essential elements of another offense with respect to either the statutory
elements or the actual evidence used to convict. Richardson v. State, 717 N.E.2d
32, 49 (Ind. 1999). We apply a de novo standard of review to double jeopardy
claims. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012).
[22] Sullivan argues that these two convictions violate the actual evidence test of our
prohibition against double jeopardy. As long as each conviction requires proof
of at least one unique evidentiary fact, the convictions are not barred by double
jeopardy. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).
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[23] To convict Sullivan of conspiracy, the State was required to prove that he and
Taylor agreed to commit the crime of dealing in a controlled substance and that
Sullivan and/or Taylor committed an overt act in furtherance of the agreement.
I.C. § 35-41-5-2. The crime of conspiracy is complete upon the agreement and
the performance of the overt act. E.g., M.T.V. v. State, 66 N.E.3d 960, 965 (Ind.
Ct. App. 2016), trans. denied. Initially, we note that Sullivan and Taylor agreed
to go to the nursing home facility to steal the narcotics pills and then to sell
those pills. They completed any number of actions that could be considered
overt acts in furtherance of that agreement: they borrowed the minivan, they
drove to the nursing home facility, Sullivan left the vehicle to see which
employee was on duty and then returned, Sullivan put on a mask and gloves,
Sullivan retrieved a BB-gun, and Sullivan entered the entry code into the
keypad and entered the building. The conspiracy was complete as soon as any
one of these overt acts was performed.
[24] We must look, however, at how the jury was instructed to consider the
evidence. In this case, the final jury instruction informed the jury that to
convict Sullivan of conspiracy, it must find that either Sullivan or Taylor
“commit[ed] the act of theft” at the nursing home facility. Appellant’s Supp.
App. Vol. II p. 11.
[25] At first glance, it seems as though the way in which the State tried this case has
led to a double jeopardy violation, because the State needed to prove that
Sullivan committed the theft to prove that he performed the overt act. In this
case, however, the State charged the theft offense as a Level 6 felony, meaning
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that, to prove that this offense occurred, it needed to take the additional step of
proving that the stolen property valued at least $750—evidence that is not
needed to establish the overt act element of the conspiracy charge. Because this
constitutes a distinct piece of evidence that was wholly separate from the
conspiracy charge, and the conspiracy charge required proof of the agreement
between Taylor and Sullivan, the actual evidence used to support these two
convictions was not the same. Consequently, there is no double jeopardy
violation.
[26] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
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