Ashley N. Lemon v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 16, 2014
• Docket: 92A03-1310-CR-419
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral Jul 16 2014, 9:23 am estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

J. BRAD VOELZ GREGORY F. ZOELLER Warsaw, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ASHLEY N. LEMON, ) ) Appellant-Defendant, ) ) vs. ) No. 92A03-1310-CR-419 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM WHITLEY CIRCUIT COURT The Honorable James R. Heuer, Judge Cause No. 92C01-1304-FB-49

July 16, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Ashley N. Lemon appeals her conviction for Class B felony burglary1 and Class D

felony theft,2 asserting that the evidence presented at the bench trial was insufficient to

convict her.

We affirm.

FACTS AND PROCEDURAL HISTORY

Lemon and Tara Omelian (“Tara”) were childhood friends in Columbia City,

Indiana; they went to school together, “hung out all the time together,” went to camp

together, and Lemon “stayed summers” at Tara’s house. Appellant’s Br. at 6; Tr. at 117.

They were “like sisters.” Tr. at 117. After high school, Lemon moved away from

Columbia City, and they saw less of each other. However, some years later, when Lemon

and her boyfriend, Jeffrey Sanford (“Sanford”), separated, Lemon moved back to

Columbia City to live with her mother, and it was then that Lemon and Tara began to spend

time together again. For about a three-month time period at the end of 2012 and early

2013, they saw each other almost every day. One day, in October 2012, Lemon and Tara

went to the home of Tara’s mother, Linda King (“King”). King still lived in the same

residence on Douglas Street where Lemon and Tara had spent so much time together as

friends throughout the years.

The morning of February 12, 2013, King left her home and drove to Hall’s

Restaurant (“Hall’s”), where she was a waitress. Her shift started at 11:00 a.m. In fact,

King had worked the same 11:00 a.m. to 5:00 p.m. shift, Monday through Friday, at Hall’s

1 See Ind. Code § 35-43-2-1. 2 See Ind. Code § 35-43-4-2.

2 for thirty years. When King returned home around 6:30 p.m. that day, she entered the

house through the carport door and into the kitchen. She went directly to the bathroom,

not noticing anything out of the ordinary. However, when she returned to the kitchen, she

noticed a small screw on the floor near the door, which had been installed a year and a half

prior. She opened the door and discovered that the striker plate was missing and the

wooden door casing was splintered, with approximately two feet of the casing missing.

She looked outside but found no debris.

King’s twenty-one-year-old son, Michael King (“Michael”), lived with her and

worked at Walmart, located about ten minutes away. Michael could not receive phone

calls at work, so King drove to Walmart to check on him, make sure he was alright, and

see if he knew anything about the broken door. He did not, so she returned home and called

the police. In the meantime, she checked a certain decorative jug or jar where, for years,

she had kept loose change and her tip money that she earned as a waitress. She always

kept the jug on top of a wooden hutch in her kitchen. When she left for work that day the

jug was full, but when she checked it, she found that it was empty.

Columbia City Police Officer Jeffrey Chapman responded to the dispatch call

regarding the burglary, arriving at King’s house around 8:00 p.m. Michael had arrived

home by then, and he discovered a mason jar that he kept in his room for loose change was

also gone. King suspected perhaps family members who were “down on [their] luck” may

have taken the money, so she asked Officer Chapman not to investigate and indicated she

would handle the matter herself. Id. at 40-41. King had in mind two specific relatives that

3 might have some involvement: One of them she reached by phone that evening, and he

denied involvement; the other she was unable to contact.

The following day, Michael asked neighbors if they had seen or noticed anything

happening around King’s house the prior day. Adam Mohler (“Mohler”), who lived across

the street said that he had heard a loud car at 4:00 or 4:15 p.m., and he looked out his

window to check if it was in his driveway. He saw a rusty, dark red vehicle not in his own

driveway, but in King’s.3 Mohler saw Lemon, who he recognized as Tara’s friend,

knocking on King’s front door, and he saw another adult waiting in the vehicle’s driver’s

seat. Assuming that Lemon was visiting Tara at King’s house, Mohler returned to his chair

to watch television. However, Mohler heard the car return about five to fifteen minutes

later. He looked out again, and this time, the car was parked under King’s carport. Mohler

did not observe any persons either in or out of the car on this second occasion. He did not

observe or suspect any criminal activity.

King, in turn, gave this information to the Columbia City Police Department on

February 13, 2013, and told them to proceed with an investigation. Detective Sergeant

Robert Stephenson contacted Lemon on February 26, 2013, at her residence where she was

living with Sanford. Because it was an inconvenient time for Lemon, she and Detective

Stephenson agreed to meet on March 6, 2013. Lemon came to the police station as

arranged, and Detective Stephenson told Lemon that King’s house had been burglarized

on February 12, and Lemon responded that she had not been there “in quite some time.”

3 Mohler believed the vehicle he saw at King’s was a 1980s Chevy Celebrity.

4 Id. at 90. Detective Stephenson then advised Lemon that a witness had observed her at

King’s residence that day. Lemon’s initial response was to deny having been there, and

then she became visibly shaken, lips quivering and body shaking. After a few moments,

Lemon explained to Detective Stephenson that as she was returning from Fort Wayne, she

had an immediate need to urinate, so she stopped at King’s house and urinated on the

driveway under the carport. Lemon said that she was driving and that she had her child

with her. Lemon said she was “so embarrassed” about it, but she felt she had no choice

but to urinate outside on the driveway. Id. Detective Stephenson inquired why she did not

go to a nearby gas station or other available public restrooms, located a few blocks away,

and Lemon’s response was that she did not think she could make it any farther without

urinating in the car. At this point in the interview, Lemon was “crying . . . almost

uncontrollably,” so Detective Stephenson terminated the interview, and gave her a form to

complete a written statement. Id. at 92. She returned the written statement on March 20,

2013, which again stated that she had stopped at King’s to urinate. She said in her

statement that she stopped at King’s for, at most, three minutes while she quickly urinated

in front of her car, on the driveway, under the carport. Lemon stated that her three-year-

old child was in the car alone, in the back seat, and they had to hurry home to meet Sanford

after work. State’s Ex. 29.

The State charged Lemon with Class B felony burglary and Class D felony theft.

At the bench trial, King testified that Lemon knew about the change jug where she had

consistently and continuously kept her loose tip change over the years – same jar, same

location. King explained that Tara and Lemon used to borrow from the jar with permission

5 to get candy and pop during the summer while King was at work at Hall’s. King testified

that the jug was full when she left for work on February 12, 2013.4 Tara also testified that

Lemon knew about the change jar, and she also testified that Lemon was struggling

financially during the time that she and Lemon were spending time together at the end of

2012 and early 2013.

Detective Stephenson testified that Officer Chapman, who first responded to the

scene, ran a Bureau of Motor Vehicles inquiry on Sanford, which reflected that a 1991

maroon Buick was registered under his name. Lemon had told Detective Stephenson

during her March 6 conversation with him that she was driving the 1991 maroon Buick

when she stopped at King’s house on February 12 to urinate. Tr. at 114. Tara also testified

that Lemon and Sanford possessed and drove a maroon Buick.

The trial court took the matter under advisement, and shortly thereafter issued its

ruling that found Lemon guilty of both Class B felony burglary and Class D felony theft.

At the sentencing hearing, the trial court discussed its ruling, explaining that, although there

was no evidence that Lemon was the person who entered the residence, the State proved

that she aided and abetted another in the crime of burglary. The trial court stated, “Based

on her conduct immediately prior to the commission of the crime, that it was . . . obviously,

it was her intent to assist another in . . . in, uh, completing that activity.” Id. at 128. The

trial court merged the theft conviction into the burglary conviction and sentenced her to ten

4 After King discovered the money was missing, she partly filled the jar up and then counted the money, to estimate how much may have been taken. Finding that the jar held $150.00 when it was about one-third full, King’s victim’s impact statement reflected that about $400.00 total was taken from her jar.

6 years at the Whitley County Jail, with six years executed5 and four years of supervised

probation. Lemon now appeals.

DISCUSSION AND DECISION

Lemon contends that there was insufficient evidence to convict her of burglary and

theft. When reviewing the sufficiency of the evidence to support a conviction, we consider

only the probative evidence and reasonable inferences supporting the verdict. Oster v.

State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied. It is the factfinder’s role

to assess witness credibility and weigh the evidence to determine whether it is sufficient to

support a conviction. Id. We consider conflicting evidence in the light most favorable to

the trial court’s ruling. Id. We affirm the conviction unless no reasonable factfinder could

find that the elements of the crime were proven beyond a reasonable doubt. Id.

In order to convict Lemon of Class B felony burglary, the State was required to

prove beyond a reasonable doubt that Lemon did knowingly break and enter into King’s

dwelling with intent to commit a felony therein. Ind. Code § 35-43-2-1. A burglar’s intent

to commit a specific felony at the time of the breaking and entering may be inferred from

the circumstances. Oster, 992 N.E.2d at 876. Evidence of intent need not be

insurmountable, but there must be a ‘“specific fact that provides a solid basis to support a

reasonable inference that the defendant had the specific intent to commit a felony[.]”’ Id.

(quoting Freshwater v. State, 853 N.E.2d 941, 944 (Ind. 2006)). In this case, the State

5 The trial court split the six years, with four years at the Whitley County Jail and the other two on home detention. The trial court allowed Lemon to “commence serving her Home Detention sentence initially” and then upon completion of the appeal process, “[S]he’ll be remanded to the custody of the Sherriff to serve the remaining portion of her sentence[.]” Tr. at 128.

7 alleged that Lemon intended to commit the felony of theft, which is governed by Indiana

Code section 35-43-4-2(a) and provides that “[a] person who knowingly or intentionally

exerts unauthorized control over property of another person, with intent to deprive the other

person of any part of its value or use, commits theft, a Class D felony.” Thus, the State

was required to prove beyond a reasonable doubt that Lemon knowingly or intentionally

exerted unauthorized control over the property and currency in King’s house, with intent

to deprive her of any part of its value or use. Here, the trial court determined that, although

it was not clearly proven that Lemon was the individual who entered King’s residence, the

evidence was sufficient to establish that she assisted another with the burglary and theft.6

Tr. at 128.

As Lemon acknowledges, a conviction for burglary may be sustained by

circumstantial evidence alone. Klaff v. State, 884 N.E.2d 272, 275 (Ind. Ct. App. 2008).

Lemon argues that the “entirely circumstantial” evidence presented at trial failed to prove

she committed burglary and theft. Appellant’s Br. at 12. “‘Where circumstantial evidence

is used to establish guilt, the question for the reviewing court is whether reasonable minds

could reach the inferences drawn by the [factfinder]; if so, there is sufficient evidence.’”

Klaff, 884 N.E.2d at 274-75 (quoting Maxwell v. State, 731 N.E.2d 459, 462 (Ind. Ct. App.

2000), trans. denied). We need not determine whether the circumstantial evidence is

adequate to overcome every reasonable hypothesis of innocence; rather, we determine

6 “[A]n accomplice is criminally responsible for all acts committed by a confederate that are the natural and probable consequence of their concerted action.” Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009); Ind. Code § 35-41-2-4 (a person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense).

8 whether inferences may be reasonably drawn from that evidence that support the verdict

beyond a reasonable doubt. Id. at 275. While mere presence at the crime scene with the

opportunity to commit a crime is not a sufficient basis on which to support a conviction,

presence at the scene in connection with other circumstances tending to show participation,

such as companionship with the one engaged in the crime, and the course of conduct of the

defendant before, during, and after the offense, may raise a reasonable inference of guilt.

Brink v. State, 837 N.E.2d 192, 194 (Ind. Ct. App. 2005), trans. denied.

Here, on February 13, 2013, Mohler told Michael that he saw a dark red or maroon

vehicle in King’s driveway on February 12 around 4:00 p.m., which was shortly after

Michael had left for work at Walmart. Mohler watched Lemon knocking on King’s front

door, and he saw an adult sitting in the driver’s seat. Mohler heard the same vehicle return

approximately five to fifteen minutes later and saw it parked in King’s covered carport

area. When Detective Stephenson met with Lemon and told her he was investigating a

burglary at King’s residence that occurred on February 12, Lemon said she had not been

to King’s house in quite some time. When Detective Stephenson advised Lemon that a

witness had seen her there, Lemon initially denied having been there, then became visibly

upset and shaky and told him she stopped there briefly to urinate. She told him that her

three-year-old child was with her and that the child waited in the back seat of the car. When

asked why she did not use the public restrooms that are a few blocks away, she by then

was crying uncontrollably, stating that she did not think she could make it there without

urinating in the car. Because of her upset condition, Detective Stephenson terminated their

meeting. Lemon thereafter sent him a written statement that repeated her version of events,

9 which was inconsistent with Mohler’s in at least a couple of respects. First, she told

Detective Stephenson that she was driving and only her child was with her, whereas Mohler

had seen an adult in the driver’s seat when he observed Lemon knocking at the door.

Second, Lemon’s version of events did not explain, or even mention, that she was at King’s

house twice in a fifteen-minute period.

The testimony presented at trial established that King had always placed her same

change jug in the same spot on the same hutch in the same kitchen for decades, dating back

to Lemon’s childhood when she spent so much time at King’s home, and the jar still was

there when Lemon last visited King’s house in October 2012. King testified that Lemon

knew about the jar and its contents because Lemon and Tara would, with permission, use

money from the change jug to buy treats and ice cream during the summer. Tara likewise

testified about the unchanged location of the jar and Lemon’s knowledge of it. Tara also

testified that, during those months in late 2012 and early 2013 when she and Lemon were

most recently spending time together, Lemon was struggling financially.

Lemon suggests that she was so visibly upset during the interview with Detective

Stephenson at least in part because she was embarrassed about having to explain her dire

need to urinate, but the trial court did not have to believe this explanation for her anxiety

or her version of events. It is the function of the trier of fact to determine the weight of the

evidence and the credibility of the witnesses and as a result, the factfinder is free to believe

whomever it chooses. Klaff, 884 N.E.2d at 274 (quotations omitted).

It is undisputed that the tip jug money and Michael’s mason jar containing coins

were taken from King’s residence sometime between the hours of approximately 3:40 p.m.

10 and 6:30 p.m., and, we note, the intruder carefully cleaned up any debris from the broken

door, leaving only a small screw on the floor. Lemon was seen knocking at the front door

during that two-hour time frame, and the maroon Buick she admits to driving that day was

seen twice at King’s home within a fifteen-minute time span. However, Lemon’s presence

at the home on the date in question was not the only evidence. This, combined with other

circumstantial evidence before, during, and after the offense – including her knowledge of

King’s daily work schedule and the location and contents of the money jug, her initial

denial of being at the residence, her conduct during the interview with Detective

Stephenson, as well as her subsequent answers and explanation for being there, which were

not consistent with a witness’s observations – was sufficient to raise a reasonable inference

of guilt. The trial court acknowledged that this “wasn’t an easy decision,” and we agree

that the evidence was not overwhelming. Tr. at 127. However, we are mindful that our

task is to “assess only whether the verdict could be reached based on reasonable inference

that may be drawn from the evidence presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind.

2012) (emphasis in original). We find that the evidence in this case was sufficient to

support the trial court’s inference that Lemon burglarized King’s residence and intended

to commit theft therein.

Affirmed.

BAILEY, J., and MAY, J., concur.