Anthony Allen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 16, 2016
• Docket: 49A02-1511-CR-1853
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 16 2016, 9:09 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Gregory F. Zoeller Marion County Public Defender Agency Attorney General Indianapolis, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony Allen, August 16, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1511-CR-1853 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff. Trial Court Cause No. 49G04-1407-F5-37207

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 1 of 12 [1] On July 24, 2014, an eyewitness called 911 to report what appeared to be a

burglary in progress at MacAllister Machinery (“MacAllister’s”), a Beech

Grove business which sells lawn care equipment. Shortly thereafter, Beech

Grove police arrested two men who had fled police in a truck carrying lawn

care equipment stolen from MacAllister’s. The police utilized K-9 partners to

track and apprehend the suspects. Appellant-Defendant Anthony Allen was

found choking one of the police dogs before being arrested. Allen was

convicted of Level 5 felony burglary, Class A misdemeanor striking a law

enforcement animal, and Class A misdemeanor resisting law enforcement. The

jury instructions and verdict form each had a single scrivener’s error which

incorrectly listed Count II as “striking a law enforcement officer” instead of

“striking a law enforcement animal.” On appeal, Allen argues (1) that there

was insufficient evidence to sustain his burglary conviction, and (2) that his due

process rights were violated based on the defective verdict form. We affirm the

trial court’s judgment.

Facts and Procedural History [2] On the night of July 24, 2014, Nikita Barbee was parked at a storage facility in

Beech Grove. The storage facility is located adjacent to an abandoned house

which in turn is located next to MacAllister’s, a business which sells lawn care

equipment. Barbee witnessed a two-door white pickup truck park in the field

near the abandoned house from which two people exited and ran around the

opposite side of the house. Barbee then heard loud noises and saw people

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 2 of 12 loading objects into the truck. Barbee called the police to report the suspicious

activity and the truck left shortly thereafter.

[3] Beech Grove Police Officer Lee Huffman was dispatched in response to

Barbee’s call and spotted a white two-door pickup truck at a nearby

intersection. Officer Huffman attempted to initiate a traffic stop but the truck

did not stop and, instead, sped away and led Officer Huffman on a high speed

chase. Ultimately, the truck crashed and the driver, Garland Jeffers, and

passenger, Allen, exited the vehicle and fled on foot. When police searched the

truck, they found boxes of lawn care equipment containing leaf blowers, chain

saws, weed eaters, and hedge trimmers. The truck was registered to Kimberly

Allen at a Fort Wayne address, and, inside the truck, there was mail addressed

to Anthony Allen.

[4] Officer Huffman called for assistance from K-9 officers to track the two men.

Officer Jeff Bruner and his K-9 partner located and apprehended Jeffers who

was hiding beneath some brush in a nearby wooded area. Officer Andy

Branham and his K-9 partner Kash located Allen hiding in some bushes.

Officer Branham gave Allen several warnings to surrender and come out or

Officer Branham would release Kash. Ultimately, Officer Branham sent Kash

into the bushes to apprehend Allen. Moments later, Officer Branham heard

Kash making gurgling sounds and, after shining his flashlight into the bushes,

saw Allen grabbing Kash around the neck in an attempt to choke the dog.

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 3 of 12 [5] After inspecting the items found in the truck, Officer Tim Williams returned to

MacAllister’s where he found a pair of bolt cutters and a hole cut in the chain

link fence on the east side of the property, which lies between MacAllister’s and

the abandoned house. Officer Williams entered the property through the hole,

approached the nearest door, and, finding it unlocked, went inside. The door

opened to the warehouse section of the business and Officer Williams noticed

pallets and shelving nearby which contained items similar to those found in the

truck including leaf blowers, chainsaws, and weed eaters.

[6] The following day, MacAllister’s branch manager Michael Doyle performed an

inventory, found that the business was missing several items, and identified the

items recovered from the truck by their serial numbers as belonging to

MacAllister’s. On the afternoon before the burglary, Timothy Retherford, the

service manager at MacAllister’s, observed a man in the showroom who

“looked a little off” because he remained in the store by himself for

approximately an hour and a half and did not purchase anything. Tr. p. 256.

Retherford’s description of the man closely matched Allen’s appearance.

During the same time in which the man was in the store, MacAllister’s

surveillance video showed a white two-door pickup truck in the store’s parking

lot.

[7] The State charged Allen with Level 5 felony burglary, Class A misdemeanor

striking a law enforcement animal, and Class A misdemeanor resisting law

enforcement. Allen represented himself pro se at his jury trial which was held

on September 28 and 29, 2015. With respect to Count II, striking a law

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 4 of 12 enforcement animal, the preliminary and final jury instructions contained a

scrivener’s error and stated, incorrectly, that Allen was charged with striking a

law enforcement officer. However, the jury instructions went on to provide the

correct charging information and elements instruction for the offense of striking

a law enforcement animal.

Count 2, on or about July 24, 2014, Anthony Allen did knowingly strangle and/or mistreat a dog owned by a law enforcement agency, to wit: Indianapolis Metropolitan Police Department. *** The crime of mistreating a law enforcement animal is defined by law as follows: A person who knowingly or intentionally strikes, torments, injures or otherwise mistreats a law enforcement animal, commits Mistreating a Law Enforcement Animal, a Class A misdemeanor.

Tr. pp. 555, 558. The instruction accurately provides the elements required to

prove the offense of striking a law enforcement animal as provided in Indiana

Code section 35-46-3-11. Allen did not object to the apparent scrivener’s error.

[8] The jury found Allen guilty as charged and, on October 21, 2015, the trial court

sentenced Allen to five years for the burglary conviction, one year for striking a

law enforcement animal, and one year for resisting law enforcement, all to be

served concurrently.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 5 of 12 [9] Allen raises two issues for our review: (1) whether there is sufficient evidence to

sustain his burglary conviction and (2) whether his due process rights were

violated when he was charged with striking a law enforcement animal but

convicted of striking a law enforcement officer.

I. Sufficiency of Evidence [10] When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct. App. 2009) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). We do not reweigh the evidence or assess witness credibility. Id. We consider conflicting evidence most favorably to the trial court’s ruling. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010).

[11] The probative evidence supporting Allen’s burglary conviction is as follows: an

eyewitness saw a white two-door pickup truck pull up near the abandoned

house on the lot adjacent to MacAllister’s. Two men got out of the truck and at

some point began loading large items into the truck. Later that night, Officer

Williams inspected the MacAllister’s property and found a pair of bolt cutters

and a hole cut in the chain link fence which lies between MacAllister’s and the

abandoned house. After entering the MacAllister’s property through the hole,

Officer Williams found that the nearest door, which opened to the

MacAllister’s warehouse, was unlocked. MacAllister’s service manager

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 6 of 12 Retherford testified that that door is “normally completely barred and never

used.” Tr. p. 259.

[12] The eyewitness reported that when the truck left, it drove onto Elmwood

Avenue toward Emerson Avenue. Officer Huffman responded to the 911 call

and located a white two-door pickup truck carrying two men near the

intersection of Elmwood and Emerson. The truck led Officer Huffman on a

high-speed chase before crashing. Allen concedes that he was a passenger in

the truck, that there were goods stolen from MacAllister’s in the truck, and that

he was apprehended running from the truck. However, Allen contends that

there was insufficient evidence that he was involved with the breaking and

entering of MacAllister’s or the removing of merchandise therefrom and,

consequently, that his conviction should be reduced to theft. Specifically, Allen

argues that no one could identify him or Jeffers as the men who approached or

cut the chain link fence, entered MacAllister’s, or carried boxes from the

warehouse.

[13] Essentially, Allen argues that evidence against him is insufficient because it is

entirely circumstantial. However, “[c]ircumstantial evidence and the inference

which it supports may be sufficient to warrant a conviction for that offense.”

Higgason v. State, 523 N.E.2d 399, 402 (Ind. 1988). In Higgason, the Indiana

Supreme Court addressed a similar situation where the defendant also

challenged the sufficiency of the evidence supporting his burglary conviction.

The Court reasoned as follows:

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 7 of 12 [A]ppellant’s car was observed near the scene of the crime, a high speed chase ensued, the car was wrecked, appellant fled, was pursued by police, and arrested at his residence. The property stolen from [the victim’s] garage and the prybar used to gain entry to the garage were found in appellant’s car. This evidence is sufficient to support the conviction.

Id.

[14] In addition to the similarly incriminating evidence here, a man matching

Allen’s description was seen acting suspiciously inside MacAllister’s on the day

of the burglary and a white two-door pickup truck was parked outside of the

business around the same time. While the evidence of Allen’s guilt is wholly

circumstantial, it is also overwhelming and leaves no room for any reasonable

theory of innocence, i.e. his unexplained possession of property which had been

stolen just minutes prior. See Allen v. State, 743 N.E.2d 1222, 1230 (Ind. Ct.

App. 2001) (“the unexplained possession of recently stolen property will

support a burglary conviction so long as there is evidence that there was in fact

a burglary committed”). Accordingly, there was sufficient evidence to support

Allen’s conviction for burglary.

II. Defective Verdict [15] “It is a denial of due process of law to convict an accused of a charge not made.

Where instructions are given or a verdict is rendered on a particular offense

which is not the same as the offense charged reversal usually is warranted.”

Maynard v. State, 508 N.E.2d 1346, 1351 (Ind. Ct. App. 1987) (citations

omitted). “However, an erroneous judgment of conviction of this type does not

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 8 of 12 always require reversal. ‘Where the defendant has not been misled and it is

evident that the issues joined under the charging information have been

determined, a simple correction of the judgment, rather than reversal, is the

appropriate remedy.’” Id. (quoting McFarland v. State, 179 Ind. App. 143, 150-

151, 384 N.E.2d 1104, 1109-1110 (1979)). For the following reasons, we find

that Allen has not shown that he was misled in any way by the error on the

verdict form.

[16] The State alleged in Count II of the charging information (both original and

amended) that “on or about July 24, 2014, Anthony Allen did knowingly

strangle and/or mistreat a dog owned by a law enforcement agency, to wit:

Indianapolis Metropolitan Police Department.” Appellant’s App. p. 31, 43.

The preliminary and final jury instructions stated, incorrectly, that Allen was

charged with “Count II Striking a Law Enforcement Officer.” Appellant’s

App. p. 121. However, the jury instructions went on to provide the correct

charging information and elements instruction for the offense of striking a law

enforcement animal.

Count 2, on or about July 24, 2014, Anthony Allen did knowingly strangle and/or mistreat a dog owned by a law enforcement agency, to wit: Indianapolis Metropolitan Police Department. *** The crime of mistreating a law enforcement animal is defined by law as follows: A person who knowingly or intentionally strikes, torments, injures or otherwise mistreats a law enforcement animal, commits Mistreating a Law Enforcement Animal, a Class A misdemeanor. Before you may convict the Defendant, Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 9 of 12 the State must have proved each of the following beyond a reasonable doubt: (1) The Defendant (2) knowingly (3) mistreated a dog, which was a law enforcement animal.

Appellant’s App. pp. 122, 126.

[17] During closing argument, the State made the following argument with regard to

Count II: “You heard testimony from Officer Branham that when Kash went

into the bushes he saw Anthony Allen strangling his dog. He heard gurgling

and choking noises. That proves the other charge that Mr. Allen faces, striking

a law enforcement animal or mistreating a law enforcement animal.” Tr. p.

432. Following Officer Branham’s testimony, the trial court asked Officer

Branham “in your opinion, was the Defendant trying to hurt the dog or stop

from being bit?” to which Officer Branham responded, “I would – in my

opinion say hurt the dog.” Tr. p. 251.

[18] The blank verdict form given to the jury for Count II read as follows:

Verdict We the Jury, find the Defendant, Anthony Allen, not guilty of striking a law enforcement animal, a Class A misdemeanor as charged in Count II. Dated:_____________ _____________________ Foreperson Verdict We the Jury, find the Defendant, Anthony Allen, guilty of striking a law enforcement officer, a Class A misdemeanor as charged in Count II.

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 10 of 12 Dated:_____________ _____________________ Foreperson

Court’s Ex. 5 (italicized emphases added). The jury returned a guilty verdict on

Count II. The abstract of judgment and sentencing order correctly list the guilty

verdict on Count II as striking a law enforcement animal.

[19] Allen had the opportunity to review all of the aforementioned forms and he

raised no objections. While this would typically waive the issue for review on

appeal, Allen argues that the discrepancy between the charge and conviction

constitutes a violation of his due process rights and so cannot be waived.

Failure to object to an instruction at trial typically results in waiver of the issue on appeal. Clay v. State, 766 N.E.2d 33, 36 (Ind. Ct. App. 2002). If an instruction is so flawed that it constitutes fundamental error, however, waiver does not preclude review on appeal. Id. To qualify as fundamental, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. Fundamental error is a substantial, blatant violation of due process.

Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010).

[20] Regardless of whether there has been a fundamental error here, reversal of an

erroneous judgment is not appropriate where the defendant has not been misled

and it is evident that the issues under the charging information have been

determined. Maynard, 508 N.E.2d at 1351. Despite Allen’s claim that he was

misled by the error at issue, he has provided no explanation of how he was

misled or evidence that he, or anyone else, was confused by the jury

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 11 of 12 instructions or verdict form. It is clear that the issue which was addressed and

resolved at trial was whether Allen choked or otherwise attacked Officer

Branham’s K-9 partner Kash. The State never alleged that Allen attempted to

or did strike or choke any of the police officers. Because the sentencing order

and abstract of judgment correctly list the guilty verdict on Count II as striking

a law enforcement animal, there is no reason to remand for a correction of

judgment.

[21] The judgment of the trial court is affirmed.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016 Page 12 of 12