Danny R. Aiman 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 Mar 29 2017, 9:00 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Byer, Jr. Curtis T. Hill, Jr. Byer & Byer Attorney General of Indiana Anderson, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Danny R. Aiman, March 29, 2017 Appellant-Defendant, Court of Appeals Case No. 48A02-1608-CR-1904 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Angela G. Warner Sims, Judge Trial Court Cause No. 48C01-1603-F4-415

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 1 of 9 [1] Following a bench trial, Danny R. Aiman (“Aiman”) was convicted of Level 4

felony burglary1 and Level 6 felony theft,2 and Aiman admitted to being a

habitual offender.3 He argues on appeal that the State failed to present

sufficient evidence to convict him of theft and burglary. [2] We affirm.

Facts and Procedural History [3] For a week or so in February 2016, Karen Aynes (“Karen”) was making daily

checks on the home of her son, Christopher Aynes (“Christopher”), while he

was in the hospital. Around 5:30 p.m., on February 23, 2016, Karen went to

Christopher’s home and discovered that a kitchen window was broken and that

electronic items were missing, including two televisions. When she was at the

home on the previous day, around the same time, the window was intact and

no items were missing. Karen contacted the Anderson Police Department, and

Officer James Akins (“Officer Akins”) responded to the dispatch concerning the

reported burglary. Upon arrival, Officer Akins observed that a kitchen window

was broken and appeared to be the means of entry into the home. [4] The evidence most favorable to the verdict is that, on or about February 23,

2016, Aiman borrowed a silver Chevy Venture minivan from Heather Peek

1 See Ind. Code § 35-43-2-1(1). 2 See Ind. Code § 35-43-4-2(a)(1)(A). 3 See Ind. Code § 35-50-2-8(a).

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 2 of 9

(“Peek”). After getting the vehicle from Peek, Aiman picked up Heather

Bilbrey (“Bilbrey”) in the van and told her he needed her help removing items

from a friend’s home. When they arrived at the residence that was later

identified as Christopher’s, Aiman entered the home through a window and

opened the front door. Aiman, with Bilbrey’s help, carried out of the home and

loaded into the van a 53-inch television, a 19-inch television, a receiver, a

digital speaker, a Bose speaker, and a CD player. They then went to Bilbrey’s

home and unloaded the items into her garage. Aiman, with Bilbrey as a

passenger, picked up Peek at around 9:00-9:30 p.m. and returned Peek’s van to

her. Based on a tip from some friends, Christopher later located his stolen

property in Bilbrey’s garage after Bilbrey’s mother let him into the house. After

further investigation by police, Detective Trent Chamberlin spoke with Aiman

on February 29, 2016. [5] The next day, the State charged Aiman with Level 4 felony burglary and Level

6 felony theft. In June, the State filed an amended charging information adding

a habitual offender count. At the June 2016 bench trial, Officer Akins testified

that, upon his arrival to the burglarized home, he spoke to the complainant,

Karen, and he observed a broken window and determined it was the mode of

entry used to gain access to the home. Officer Akins testified that Karen told

him that she suspected someone named Maggie McKay (“McKay”) committed

or was involved in the burglary. [6] Karen testified next. She stated that McKay was Christopher’s girlfriend or ex-

girlfriend and that McKay visited or stayed overnight at the house while

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 3 of 9

Christopher was in the hospital, but Karen “threw her out” sometime during

the morning hours of February 23 because McKay had “too much company” at

the house and also stole a particular ashtray. Tr. at 26, 28. After McKay left,

Karen locked up the windows and doors. When she returned the next day to

check on the house, she found that it had been burglarized and items were

missing, including a digital speaker, a Bose speaker, a 53-inch television, and a

19-inch television. Karen testified that, after she had locked up the house the

day before, she did not fear McKay would come back, but had concern about

McKay’s friends, who, according to Karen, McKay even considered to be

“thieves.” Id. at 39. Karen testified that she told police that she suspected

McKay either committed the burglary or had something to do with it. [7] The State also called Bilbrey to testify. Bilbrey stated that Aiman asked her to

accompany him “to remove items from a friend’s house.” Id. at 48, 53. She

agreed, and Aiman drove them in a van, which Aiman told Bilbrey that he had

borrowed from Peek, to Christopher’s house. She testified that Aiman told her

that he “had forgotten” the keys to the home, and she watched him crawl

through a window. Id. at 54. Aiman opened the front door from the inside,

and then Bilbrey assisted Aiman in moving items to the van. Bilbrey stated that

Aiman asked her if he could put the items in her garage, and she agreed; Aiman

pulled the vehicle into her garage, and they unloaded the items in her garage.

Bilbrey said that the two of them picked up Peek at her job, and then Peek

dropped off Bilbrey and Aiman at Bilbrey’s home. Bilbrey acknowledged that

she used methamphetamine and was addicted to heroin, but stated that she had

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 4 of 9

been in jail for ten days prior to trial and was “clean.” Id. at 61. On cross-

examination, Bilbrey testified that she was offered use immunity in exchange

for her testimony and that what she said at trial could not be used against her in

her pending criminal case. [8] The State also called Peek as a witness. She testified that, on February 23 or 24,

2016, Aiman asked to borrow her minivan to move items, she agreed, and

Aiman came to her place of employment around 5:00 or 6:00 p.m. and picked

up her van. Peek stated that at about 9:00 or 9:30 p.m., Aiman returned the

van to her at work, and she drove Aiman and Bilbrey to a home that Peek later

learned was Bilbrey’s house. Peek testified that she did not consider Bilbrey to

be trustworthy. [9] After the trial court denied Aiman’s motion for a directed verdict, the defense

called Kelli Lane (“Lane”) as a witness. Lane’s testimony was that Bilbrey had

told her that two persons named David Arnold and Daniel Dayton helped

Bilbrey with the burglary. Earlier in trial, Bilbrey was asked during her

testimony whether she had told Lane that she (Bilbrey) and another individual

had used Daniel Dayton’s vehicle and committed the burglary in question,

Bilbrey denied having made that statement to Lane. Id. at 74. [10] The trial court found Aiman guilty as charged, noting that it found Bilbrey

credible because she provided detailed testimony, including how Aiman gained

access to the home, what was taken, and where they went with it, and it was

corroborated by other evidence presented at trial. The trial court also stated

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 5 of 9

that it did not find the testimony of Lane to be believable, noting that parts of it

did not “make sense.” Id. at 173. The trial court sentenced Aiman to nine

years at the Indiana Department of Correction (“DOC”) for the burglary

conviction and two years at DOC for the theft conviction, with the two

sentenced to run concurrently. For the habitual offender adjudication, the trial

court enhanced the burglary conviction by nine years, resulting in a total

sentence of eighteen years, of which three years were suspended to probation.

Aiman now appeals.

Discussion and Decision [11] Aiman argues that the evidence supporting his convictions was insufficient.

When reviewing the sufficiency of the evidence, we neither reweigh the

evidence nor judge witness credibility. Gray v. State, 797 N.E.2d 333, 334 (Ind.

Ct. App. 2003); Oeth v. State, 775 N.E.2d 696, 700 (Ind. Ct. App. 2002), trans.

denied. We examine only the evidence favorable to the judgment, together with

the reasonable inferences to be drawn therefrom. Gray, 979 N.E.2d at 334. We

will affirm the conviction if evidence of probative value exists from which a

factfinder could find the defendant guilty beyond a reasonable doubt. Id. at

335. A burglary conviction may rest upon circumstantial evidence, and such

evidence need not exclude every reasonable hypothesis of innocence as long as

an inference may reasonably be drawn therefrom which supports the findings of

the trier of fact. Id. “In essence, we assess only whether the verdict could be

reached based on reasonable inferences that may be drawn from the evidence

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 6 of 9

presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

original). [12] To convict Aiman of Level 4 burglary as charged, the State had to prove

beyond a reasonable doubt that, on or about February 23, 2016, Aiman

knowingly or intentionally broke and entered Christopher’s dwelling with the

intent to commit a felony or theft in it. Ind. Code § 35-43-2-1(1). To convict

Aiman of Level 6 felony theft as charged, the State was required to prove

beyond a reasonable doubt that Aiman knowingly or intentionally exerted

unauthorized control over Christopher’s property, which was valued at more

than $750 but less than $50,000, with the intent to deprive Christopher of any

part of the property’s use or value. Ind. Code § 35-43-4-2(a)(1)(A). [13] Aiman challenges the sufficiency of the evidence, asserting that the State failed

to present sufficient evidence that it was he, and not Bilbrey or some other

persons, who burglarized and stole from Christopher’s home. Aiman asserts on

appeal that “the circumstantial evidence presented by the State [] was not

adequate . . . to convict.” Appellant’s Br. at 12. Contrary to Aiman’s argument,

his convictions were not based entirely on circumstantial evidence; rather, the

State provided direct evidence of Aiman’s involvement. Bilbrey testified that

Aiman picked her up in a van that he borrowed from Peek, she watched Aiman

enter the home through a window, open the front door, and proceed to remove

goods, which Aiman asked to store in Bilbrey’s garage, and she agreed.

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 7 of 9 [14] Aiman’s argument is that Bilbrey should not have been believed. Indeed,

Aiman later argues “there was no convincing evidence as to him being . . . the

individual entering the burglarized property other than the testimony of []

Bilbrey.” Id. at 14 (emphasis added). He argues that Bilbrey, who

acknowledged drug abuse and was granted use immunity, was the only witness

that placed Aiman at Christopher’s home, and the missing property was found

at her residence. He notes that Bilbrey’s description concerning details of the

color and interior of the van differed from Peek’s testimony about her vehicle,

making Bilbrey’s testimony about the crime less believable. He also notes that

Karen suspected McKay as the burglar, as McKay had been known to take

property from Christopher and from Karen in the past. [15] It is well settled that we cannot judge the credibility of witnesses on appeal.

Gray, 797 N.E.2d at 334. The jury, acting as the trier of fact, is free to believe

whomever it wishes. Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008).

Moreover, the factfinder not only determines whom to believe, it also

determines what portions of conflicting testimony to believe. Atwood v. State,

905 N.E.2d 479, 484 (Ind. Ct. App. 2009), trans. denied. [16] To the extent that Aiman’s argument is that, because Bilbrey’s testimony is

supported by corroborating and circumstantial evidence, his convictions are

therefore based on circumstantial evidence, we need not determine whether the

circumstantial evidence is adequate to overcome every reasonable hypothesis of

innocence. Brown v. State, 827 N.E.2d 149, 152 (Ind. Ct. App. 2005). Rather,

we determine whether inferences may be reasonably drawn from that evidence

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 8 of 9

which supports the verdict beyond a reasonable doubt. Id. We find that Peek’s

testimony that she loaned her van to Aiman at the date and time in question,

along with her testimony that when Aiman later picked her up from work,

Bilbrey was with Aiman in the van, corroborates Bilbrey’s account of events.

Christopher’s testimony that he found his stolen items in Bilbrey’s garage also

corroborates Bilbrey’s testimony. “[T]he question for the reviewing court is

whether reasonable minds could reach the inferences drawn by the jury; if so,

there is sufficient evidence.” Maxwell v. State, 731 N.E.2d 459, 462 (Ind. Ct.

App. 2000), trans. denied. We find, here, that reasonable minds could reach the

inferences that Aiman stole the items from Christopher. Accordingly, the State

presented sufficient evidence to convict Aiman of theft and burglary. [17] Affirmed. [18] Robb, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1904 |March 29, 2017 Page 9 of 9