Mark Johnson a/k/a Garland P. Jeffers v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
May 25 2016, 9:21 am
Pursuant to Ind. Appellate Rule 65(D), CLERK FILED
May 25 2016, 9:20 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael C. Borschel Gregory F. Zoeller
Fishers, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark Johnson May 25, 2016
a/k/a Garland P. Jeffers, Court of Appeals Case No.
49A05-1511-CR-1916
Appellant-Defendant,
Appeal from the Marion Superior
v. Court
The Honorable Lisa F. Borges,
State of Indiana, Judge
Trial Court Cause No.
Appellee-Plaintiff
49G04-1407-F5-37215
Crone, Judge.
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Case Summary
[1] Mark Johnson, a/k/a Garland P. Jeffers (“Jeffers”), 1 challenges the sufficiency
of the evidence supporting his conviction for level 5 felony burglary. Finding
that his arguments essentially amount to requests to reweigh evidence, we
affirm his burglary conviction. Additionally, we review sua sponte his two
convictions for resisting law enforcement. Concluding that those convictions
violate double jeopardy principles, we remand with instructions to vacate his
class A misdemeanor resisting law enforcement conviction and sentence.
Facts and Procedural History
[2] The facts most favorable to the verdict are as follows. Around 11:00 p.m. on
July 24, 2014, Nikita Barbee was sitting in her vehicle outside a storage facility
when she observed a white pickup truck drive into a field between MacAllister’s
Machinery and an abandoned house. She saw two men in dark clothing exit
the pickup and run behind the abandoned house. She called 911 and stayed on
the phone with the dispatcher as she heard thuds and noticed the two men
loading items into the back of the pickup. Shortly thereafter, the men drove
away in the pickup.
[3] At that time, Beech Grove Police Officer Lee Huffman was patrolling nearby
and observed a pickup fitting Barbee’s description. When the pickup stopped at
1
We note that the appellant refers to himself in his briefs and certain pro se filings as Garland P. Jeffers-El.
As best we can discern his legal name is Garland P. Jeffers, and we refer to him as such.
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a stoplight, Officer Huffman drove up next to it and observed two African-
American men inside. The officer made a U-turn, pulled up behind the pickup,
and radioed for assistance. He activated his lights and attempted to initiate a
traffic stop, but the pickup failed to stop. When the driver (Jeffers) made a U-
turn and headed toward I-465, Officer Huffman activated his siren and radioed
his new position to the backup officer. Again refusing to stop, Jeffers entered I-
465 going the wrong way on an off-ramp. He made another U-turn, and the
officer remained in pursuit. A high-speed chase ensued, with the pickup
weaving in and out of traffic at speeds in excess of 100 miles per hour.
Eventually the pickup exited the freeway, and the chase continued at high
speeds through several red lights.
[4] After the pickup crashed in front of a car lot, officers observed the driver,
Jeffers, and his passenger, Anthony Allen, as they ran from the vehicle, through
the car lot, and into a wooded area. With the help of a K-9 unit, officers
apprehended Jeffers and Allen, placed them in custody, and returned with them
to the crash site. In and around the pickup bed, police found weed eaters, leaf
blowers, chainsaws, and hedge trimmers, all of which were subsequently linked
by serial number to inventory missing from MacAllister’s. Police visited
MacAllister’s’ property and found a large hole cut out of the perimeter fence
and a pair of bolt cutters. Police also found that an ordinarily locked and barred
door to the warehouse was unlocked. MacAllister’s service manager Tim
Retherford reported that a man fitting Allen’s description had shopped at
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MacAllister’s that afternoon, stayed an hour and a half, and behaved strangely
near the unlocked door.
[5] At the scene, Jeffers told police that his name was Mark Johnson, but police
later determined that his real name was Jeffers. The State charged Jeffers with
level 5 felony burglary, level 6 felony resisting law enforcement, and class A
misdemeanor resisting law enforcement. The jury found Jeffers guilty as
charged. The trial court entered judgment on all three counts and sentenced
him to four years for burglary, with concurrent two-year and one-year terms on
the resisting law enforcement counts. Jeffers now appeals. Additional facts will
be provided as necessary.
Discussion and Decision
Section 1 – The evidence is sufficient to support Jeffers’s
burglary conviction.
[6] Jeffers maintains that the evidence is insufficient to support his burglary
conviction. When reviewing a challenge to the sufficiency of evidence, we
neither reweigh evidence nor judge witness credibility. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence and
reasonable inferences most favorable to the verdict and will affirm the
conviction “unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that
the evidence “overcome every reasonable hypothesis of innocence.” Id.
(citation omitted). “Where the evidence of guilt is essentially circumstantial,
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the question for the reviewing court is whether reasonable minds could reach
the inferences drawn by the jury; if so, there is sufficient evidence.” Jones v.
State, 924 N.E.2d 672, 674 (Ind. Ct. App. 2010) (citation omitted). Without
question, a burglary conviction may be supported solely by circumstantial
evidence. Brink v. State, 837 N.E.2d 192, 196 (Ind. Ct. App. 2005).
[7] Pursuant to Indiana Code Section 35-43-2-1, the State alleged that Jeffers
committed level 5 felony burglary by breaking and entering MacAllister’s
building or structure with intent to commit the felony of theft in it. Jeffers’s
sufficiency claim essentially focuses on his identity.
[8] Here, Officer Huffman received a radio dispatch of a possible burglary
involving two men in dark clothing in a white pickup. When he saw a white
pickup near the location described in the dispatch, he pulled up beside it,
noticed two men inside whose dark clothing matched the witness’s description,
and radioed for backup. Instead of stopping when Officer Huffman activated
his lights and siren, Jeffers led the officer on a high-speed chase, which entailed
entering the interstate going the wrong direction, making a U-turn, exiting the
highway, running several red lights, and eventually crashing the truck. Even
then, Jeffers and his cohort Allen fled on foot and were apprehended after
attempting to hide from the pursuing officers. Jeffers’s flight both by vehicle
and on foot, as well as his attempts to avoid arrest, are circumstantial evidence
of his consciousness of guilt. See Myers v. State, 27 N.E.3d 1069, 1077 (Ind.
2015) (“[E]vidence of flight may be considered as circumstantial evidence of
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consciousness of guilt …. [and] evidence of an attempt to avoid arrest also tends
to show guilt.”).
[9] Both circumstantial and physical evidence support a reasonable inference that
Jeffers participated in the burglary. Jeffers drove and crashed the white pickup
and was apprehended with his passenger Allen. The contraband found in the
pickup was identified by serial number as merchandise missing from
MacAllister’s. MacAllister’s service manager Retherford described Allen as the
shopper that he had encountered late that afternoon who had stayed an
unusually long time and behaved strangely near the door that police found to
have been unlocked, thus supporting a reasonable inference concerning the
duo’s access to the building later that night. A large hole in the fence
surrounding MacAllister’s as well as wire cutters found on the property the next
day explain the means of entrance to the grounds. Barbee witnessed two men
in clothing that matched Jeffers’s and Allen’s running from the white pickup
and subsequently loading items into its bed in the field adjacent to
MacAllister’s. To the extent that Jeffers challenges Barbee’s vantage point as
the sole eyewitness, he invites us to reweigh evidence and judge witness
credibility, which we may not and will not do. The evidence most favorable to
the verdict is sufficient to support Jeffers’s burglary conviction.
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Section 2 – We review sua sponte Jeffers’s convictions for
resisting law enforcement and remand with instructions to
vacate his class A misdemeanor conviction on double jeopardy
grounds.
[10] Finally, we address sua sponte the trial court’s entry of judgment against Jeffers
on both counts of resisting law enforcement. Because double jeopardy
violations implicate fundamental rights, we may review them sua sponte.
Hayden v. State, 19 N.E.3d 831, 842 (Ind. Ct. App. 2014), trans. denied (2015).
[11] Here, Jeffers was convicted of both level 6 felony resisting law enforcement and
class A misdemeanor resisting law enforcement. The record indicates that
Jeffers led police on a high-speed vehicle chase followed by a chase on foot. 2
This Court has previously stated that the continuous crime doctrine “reflects a
category of Indiana’s prohibition against double jeopardy.” Walker v. State, 932
N.E.2d 733, 736 (Ind. Ct. App. 2010). 3 “The continuous crime doctrine is a
rule of statutory construction and common law limited to situations where a
defendant has been charged multiple times with the same offense.” Hines v.
State, 30 N.E.3d 1216, 1219 (Ind. 2015). The doctrine “does not seek to
2
The amended affidavit charged Jeffers with level 6 felony resisting law enforcement using a vehicle (Ind.
Code § 35-44.1-3-1(b)) and class A misdemeanor resisting law enforcement based on Jeffers’s failure to
comply with the officers’ commands to stop (Ind. Code § 35-44.1-3-1(a)(3)).
3
Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
for the same offense.” The Fifth Amendment to the United States Constitution provides that no person
“shall be subject for the same offense to be twice put in jeopardy of life or limb.” We have discerned no
difference between the analysis of the continuous crime doctrine under Indiana or federal law. Lewis v. State,
43 N.E.3d 689, 691 n.1 (Ind. Ct. App. 2015).
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reconcile the double jeopardy implications of two distinct chargeable crimes;
rather, it defines those instances where a defendant’s conduct amounts only to a
single chargeable crime.” Id. This Court has repeatedly determined, under
circumstances similar to those that occurred here, that a defendant’s acts of
fleeing by a vehicle and then on foot constitute one continuous act of resisting
law enforcement. Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015);
Arthur v. State, 824 N.E.2d 383, 385 (Ind. Ct. App. 2005), trans. denied; Nevel v.
State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004).
[12] Because Jeffers’s actions of fleeing the police by vehicle and then on foot
constituted one continuous act of resisting law enforcement, the entry of
judgment on both counts violated his protection against double jeopardy.
Accordingly, we remand with instructions to vacate Jeffers’s conviction and
sentence for class A misdemeanor resisting law enforcement. Because the trial
court imposed concurrent sentences, the vacation of the class A misdemeanor
conviction and sentence will have no effect on Jeffers’s aggregate sentence. In
all other respects, we affirm.
[13] Affirmed and remanded with instructions.
Najam, J., and Robb, J., concur.
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