Demaruis D. Rice v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 31 2018, 9:48 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Demarquis D. Rice, August 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-763 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. John M. Marnocha, Judge Trial Court Cause No. 71D02-1701-F4-2

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-763 |August 31, 2018 Page 1 of 10 [1] Demarquis D. Rice (“Rice”) was convicted after a jury trial of burglary1 as a

Level 4 felony and resisting law enforcement2 as a Class A misdemeanor. He

appeals his conviction for Level 4 felony burglary contending that the State

failed to present sufficient evidence to support the conviction. [2] We affirm.

Facts and Procedural History [3] On January 10, 2017, Officer Sienna Sears (“Officer Sears”) of the South Bend

Police Department was working the midnight shift, when she was dispatched to

Echo Drive at around 3:00 a.m. on a call reporting a suspicious person in the

area. Tr. Vol. 2 at 44. Officer Michael Stuk (“Officer Stuk”) was also working

the midnight patrol on the same night and was also dispatched to Echo Drive.

Id. at 56. It had been snowing that night, but the snow had stopped just prior to

the officers arriving to the call. Id. at 44, 56. When they arrived, the officers

observed footprints in the snow, and they followed the footprints, which were

easy to see in the fresh snow. Id. at 45, 56-57. [4] As he followed the footprints, Officer Stuk came across a black object, which

turned out to be a GPS device. Id. at 58. The trail of footprints eventually led

Officer Sears to Woldhaven Drive where she observed two men carrying lawn

equipment and walking through someone’s front yard. Id. at 46. Because the

1 See Ind. Code § 35-43-2-1. 2 See Ind. Code § 35-44.1-3-1(a)(3).

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call from dispatch had reported that people were breaking into vehicles, Officer

Sears exited her patrol car, which was marked, identified herself as a police

officer, and ordered the men to stop. Id. The men did not stop, but instead,

dropped the lawn equipment and ran eastbound on foot. Id. at 46-47. The

lawn equipment included two leaf blowers. [5] When the men began to run, Officer Sears contacted Officer Stuk and informed

him that she was trying to stop the two men. Id. at 60. Officer Sears and

Officer Stuk followed the footprints the men left behind when they ran through

yards and over fences as they fled. Id. at 47. The tracks eventually led the

officers to a parked van where they discovered a cluster of footprints. Id. at 49.

After a backup unit arrived to assist, Officers Stuk and Sears ordered the

occupants of the van to exit. Id. at 49, 61. Rice was identified as one of the

three men in the van. Id. at 49. Officer Sears spoke with Rice and first read

him his Miranda warnings. Id. at 51. After she read Rice his rights and

informed him that he had the right not to speak with her, Rice stated that he

understood his rights and then admitted that he was one of the two men who

ran from the police earlier. Id. [6] Officer Stuk also photographed the men and the treads of their shoes in order to

confirm which of the three men had been seen earlier dropping the lawn

equipment and running from Officer Sears. Id. at 61; State’s Exs. 18-26. Each of

the three men wore shoes with a different and distinct tread pattern. Tr. Vol. 2

at 63-64. Officer Stuk then went back to the location where Officer Sears had

originally seen the suspects and where the property was located. Id. at 65-66.

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There, he photographed the footprints located near the discarded lawn

equipment. Id. at 66. One set of the footprints in the snow matched Rice’s

footwear, which had a distinctive herringbone pattern. Id. at 67-68; State’s Exs.

24-25. The other set was consistent with Nike Air footwear, which was worn

by one of the van’s other passengers. Tr. Vol. 2 at 67; State’s Ex. 23. The

footprints in the path left by Rice led Officer Stuk from the intersection where

the police discovered the lawn equipment to an open garage door at a home

owned by Charles Dance (“Dance”). Tr. Vol. 2 at 69. At that time, Officer Stuk

noticed that it appeared that the garage door had not been open for long due to

the fact that there was no snow inside the garage. Id. at 69. Officer Stuk

knocked on Dance’s door. [7] Dance had been living at his home in St. Joseph County for thirty-eight years.

He owned the home and lived there with his wife. Dance was in his home in

the early morning hours of January 10, 2017 and had been sleeping on a couch

in the breezeway of the home instead of the master bedroom because he was

suffering from a case of walking pneumonia. Id. at 23. He had awakened

because of a bad coughing fit at about 3:00 a.m. and had gone to the kitchen for

some water, then returned to sleep at about 3:10 a.m. Id. Around that time,

Dance heard some rumbling noises in his garage. Id. at 24. [8] At around 3:20 a.m., Dance heard heavy pounding on his front door, and when

he looked outside, he saw Officer Stuk and another officer, who had followed

the footprints leading from the lawn equipment back to his open garage door.

Id. at 24, 69. Dance opened the door and spoke with the officers, who informed

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him that his garage door was open. Id. at 24-25. The officers then requested

that Dance go through the interior of his house to his garage to avoid disrupting

the snow and identify some stolen property. Id. at 25. [9] Dance and his wife owned two vehicles, a 2016 Ford Escape which was parked

inside the garage, and a 2004 Ford Taurus, which was parked in the driveway.

When Dance entered his garage, he noticed that the door to the Ford Escape

was open about two inches. Dance had closed his garage door earlier that

night; however, it was open at the time the officers arrived at his house. Id. at

26. When Dance attempted to close the garage door later, he had to do so

manually because it had been disengaged. Id. at 27. He was also unable to use

the bolt latch that he slides into a slot in the garage door’s track because it had

been misaligned. Id. at 27-28, 33-35. Dance eventually had to hire a repairman

to realign the track with the slide lock. Id. at 32. The police recovered three

items that had been taken from Dance’s garage and returned them to Dance.

The stolen items included the two leaf blowers, a Craftsman gas-powered leaf

blower and a Craftsman electric-powered leaf blower, and a black Garmin GPS

device, which Dance normally kept in the back seat of the Ford Escape. Id. at

28-29. [10] The police arrested all three men who had been found in the van, including

Rice. The State charged Rice with Level 4 felony burglary and Class A

misdemeanor resisting law enforcement. A jury trial was held on January 29

and 30, 2018, and at the conclusion of the trial, the jury found Rice guilty as

charged. Rice now appeals his conviction for Level 4 felony burglary.

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Discussion and Decision [11] Rice argues that insufficient evidence was presented to support his conviction.

The deferential standard of review for sufficiency claims is well settled. When

we review the sufficiency of evidence to support a conviction, we do not

reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

evidence most favorable to the verdict and the reasonable inferences that can be

drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

2014), trans. denied. We also consider conflicting evidence in the light most

favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

App. 2013), trans. denied. We will not disturb the jury’s verdict if there is

substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.

We will affirm unless no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356

(Ind. 2014). As the reviewing court, we respect “the jury’s exclusive province to

weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

A conviction may be sustained based on circumstantial evidence. Baltimore v.

State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied. Circumstantial

evidence need not exclude every reasonable hypothesis of innocence; rather,

circumstantial evidence can sustain a conviction if an inference may reasonably

be drawn from the evidence to support the judgment. Id. [12] Rice contends that the State failed to present sufficient evidence to support his

conviction for Level 4 felony burglary. He specifically claims that the evidence

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did not sufficiently prove that he was the person “who broke and entered

Dance’s garage nor that he aided, induced, or caused another person to do so.”

Appellant’s Br. at 7. Rice maintains that the evidence was only sufficient to

possibly create an inference that he may have been exerting unauthorized

control over Dance’s property, but failed to prove beyond a reasonable doubt

that he, or anyone else he was with, broke and entered Dance’s garage. Rice

also argues that there was not sufficient evidence presented to prove that any

physical act was used to gain entry to Dance’s garage. Rice asserts that the

evidence showed that Dance only thought that he closed the garage door earlier

that night and that there was no evidence that the garage door had been

tampered with in any way, which left the jury to speculate as to whether the

garage door “was ever really closed.” Id. at 8. [13] In order to convict Rice of Level 4 felony burglary, the State was required to

prove beyond a reasonable doubt that he broke and entered the dwelling of

Dance with the intent to commit a theft therein. Ind. Code § 35-43-2-1(1).

“Using even the slightest force to gain unauthorized entry, which can include

opening an unlocked door or pushing a door that is slightly ajar, satisfies the

breaking element of the crime.” Wilson v. State, 94 N.E.3d 312, 323 (Ind. Ct.

App. 2018) (citing Davis v. State, 770 N.E.2d 319, 322 (Ind. 2002)), trans. denied.

Circumstantial evidence alone can prove the occurrence of a breaking. Id.

(citing Payne v. State, 777 N.E.2d 63, 66 (Ind. Ct. App. 2002)). [14] Here, the evidence most favorable to the verdict showed that, after being

dispatched on a report of suspicious individuals in the area, Officer Sears

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observed two men, one of whom was later identified as Rice, walking and

carrying two leaf blowers. It was approximately 3:00 a.m. in January, and it

had recently been snowing. When Officer Sears told the individuals to stop,

they dropped the leaf blowers and ran away. Because of the fresh snow on the

ground, Officer Sears and Officer Stuk were able to follow the footprints of Rice

and the other man to a van. Tr. Vol. 2 at 47, 49. After reading the men their

Miranda rights, Rice admitted that he was one of the men that Officer Sears

had seen carrying the leaf blowers and running away. Id. at 51. Pictures were

taken of each man, their shoes, and the treads on the shoes. One set of the

footprints in the snow near the abandoned leaf blowers matched Rice’s

footwear, which had a distinctive herringbone pattern. Id. at 67-68; State’s Exs.

24-25. Officer Stuk followed the footprints from their origin, which led from

the intersection where the leaf blowers were discovered to an open garage door

at Dance’s home. Tr. Vol. 2 at 69. At that time, Officer Stuk noticed that it

appeared that the garage door had not been open for a long period of time

because there was no snow inside the garage, and it had just stopped snowing.

Id. [15] Dance testified that he had awakened around 3:00 a.m. because of a bad

coughing fit and had heard some rumbling noises in his garage. The officers

knocked on Dance’s door around 3:20 a.m. and asked him to go out to his

garage. When Dance entered his garage, he noticed that the door to his Ford

Escape was open about two inches. Dance testified that he had closed his

garage door earlier that night; however, it was open at the time the officers

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arrived at his house. Id. at 26. Later, when Dance attempted to close the

garage door, he had to do so manually because it had been disengaged. Id. at

27. He was also unable to use the bolt latch that he slides into a slot in the

garage door’s track because it had been misaligned. Id. at 27-28, 33-35. Dance

was able to identify the items stolen from his garage as two leaf blowers, and a

black Garmin GPS device, which Dance normally kept in the back seat of the

Ford Escape. Id. at 28-29. This evidence was sufficient to prove that Rice

broke and entered Dance’s garage with the intent to commit theft. [16] Rice’s arguments to the contrary are merely requests for this court to reweigh

the evidence and judge the credibility of the witnesses, which we cannot do.

Boggs, 928 N.E.2d at 864. Rice asserts that sufficient evidence was not

presented to prove that there was an illegal break into Dance’s garage. He

claims that Dance only testified that he thought that he had closed his garage

door and never indicated that he heard anyone break into his garage or that

there was any evidence that the garage door had been tampered with in any

way. We do not agree. At trial, Dance testified that the garage door had been

closed when he left it earlier in the night, but it was open when the police later

came to his home at 3:20 in the morning. Tr. Vol. 2 at 26. Dance also testified

that when he awoke from a coughing fit at about 3:00 a.m., he heard rumbling

noises from the garage. Id. at 24. He further testified that when he later

attempted to close the garage door, he had to do so manually because it had

been disengaged and that he was unable to use the bolt latch on the garage door

because it had been misaligned. Id. at 27-28, 33-35. Further, the evidence

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showed that it had been snowing that night and only recently stopped around

the time that the officers had been called to the area, and Officer Stuk testified

that when he arrived at Dance’s home, there was no snow inside of the garage. [17] Rice also contends that there was not sufficient evidence to prove that he was

the person who broken and entered into Dance’s garage. However, the

evidence showed that Rice’s distinctive footprints were found at the location

where the leaf blowers were dropped, and Officer Stuk followed those footprints

from that location to the open garage door at Dance’s home. Rice admitted

that he was one of the men that dropped the leaf blowers and ran away from

Officer Sears when she ordered them to stop. Therefore, a jury could

reasonably infer that Rice was one of the individuals who broke and entered

into Dance’s garage and stole the missing items. Sufficient evidence was

presented to support Rice’s conviction for Level 4 felony burglary. [18] Affirmed. [19] Vaidik, C.J., and Riley, J., concur.

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