Cissy Chantel Mae Russell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 15, 2016
• Docket: 90A02-1602-CR-355
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 15 2016, 11:24 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Travis S. Friend Gregory F. Zoeller Andrew L. Teel Attorney General of Indiana Haller & Colvin, P.C. Fort Wayne, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cissy Chantel Mae Russell, November 15, 2016 Appellant-Defendant, Court of Appeals Case No. 90A02-1602-CR-355 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Kenton W. Appellee-Plaintiff. Kiracofe, Judge Trial Court Cause No. 90C01-1410-F4-3

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 1 of 11 Statement of the Case [1] Cissy Chantel Mae Russell appeals her conviction for burglary, as a Level 4

felony, following a jury trial. She raises two issues on appeal, namely:

1. Whether the trial court abused its discretion when it admitted State’s Exhibit 24, which was a map that summarized cell phone locations.

2. Whether the State presented sufficient evidence to support the conviction.

[2] We affirm.

Facts and Procedural History [3] Russell is the estranged half-sister of Kelly Gartin (“Kelly”). In September

2014, Kelly lived with her husband, Andrew Gartin (“Andrew”), in a house in

rural Wells County, and Russell lived in Connecticut. On the morning of

September 23, 2014, the Gartins each left for work by 7:30 a.m. Kelly was the

last person to leave the house, and she closed the entry door but left it unlocked.

Later that morning, the Gartins’ neighbor, James LeMaster, heard a truck

engine revving on the Gartins’ property. LeMaster called Kelly to let her know

that there was a noise coming from her property, and he then proceeded to the

Gartins’ property to investigate.

[4] Once at the property, LeMaster saw two vehicles behind the Gartins’ residence:

a red pickup truck and a silver pickup truck. LeMaster recognized the red truck

as belonging to the Gartins. The rear bumper of the silver truck was

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 2 of 11 approximately twelve to fifteen feet from the door of the Gartins’ residence.

Both trucks were stuck in the mud. LeMaster found a woman, later identified

as Russell, standing by the bed of the silver pickup truck. Russell appeared to

be nervous, and she looked as if she had been sweating profusely. When

LeMaster asked Russell who she was, Russell initially said she was Kelly’s

aunt. However, Russell later apologized to LeMaster and informed him that

she was not Kelly’s aunt, but her half-sister. LeMaster asked Russell why she

was there, but Russell did not answer.

[5] LeMaster conversed with Russell for approximately an hour before Kelly

arrived. During that time, LeMaster noticed a number of items in the bed of

the silver pickup truck, including a large rectangular object, but they were all

covered up with blankets. During her conversation with LeMaster, Russell

stated that she had traveled to Indiana from the East Coast to help a friend

move and then to see her mother. However, Russell and Kelly’s mother,

Rabecka Grossman, was actually on vacation in another state at that time.

And, prior to leaving for her vacation, Grossman had informed Russell that

Grossman would be out of town from September 22 through September 29,

2014.

[6] At around noon, Andrew arrived at the property, having learned from Kelly via

text that there was a disturbance at their home. Andrew asked Russell why she

was there, and Russell stated she was there to help a friend move. Russell said

she had driven to the rear of the Gartins’ home “to see if [the Gartins] would

come out and talk to her because she thought someone was home.” Tr. at 312.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 3 of 11 Andrew also saw items in the bed of the silver pickup truck that were covered

with blankets.

[7] Kelly arrived at the property approximately fifteen to twenty minutes after

Andrew had arrived, and she asked Russell why Russell was there. Russell

responded that she was there to throw some things in the Gartins’ dumpster and

to see Kelly and then see Russell and Kelly’s mother. Russell stated that she

had driven to the back of the Gartins’ house because she thought that would

cause Kelly to come out of the house to speak with her. While she spoke to

Kelly, Russell sat on top of the large rectangular object covered with a blanket

in the bed of the silver pickup truck. LeMaster then pulled Russell’s truck out

of the mud using a tractor, and Russell left the property in the silver pickup

truck.

[8] After Russell left, Andrew and Kelly noticed that items were missing from their

home, including a chainsaw, jewelry boxes, DVDs, Andrew’s prescription

drugs, children’s games, and a gun safe. The gun safe was approximately the

same size as the large covered rectangular object on which Russell had been

sitting in the bed of her pickup truck. The gun safe weighed approximately 100

to 150 pounds when empty, but it had had nine guns in it on September 23.

The safe had been located in the Gartins’ bedroom, which was on the opposite

side of the house from the entrance near which Russell’s pickup truck had been

parked.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 4 of 11 [9] Andrew called the Wells County Sheriff’s Department to report the stolen

items. Detective Randy Steele’s subsequent investigation of the crime included

photographing the Gartins’ residence. Detective Steele suggested that the

Gartins attempt to contact Russell. Kelly was able to reach Russell’s husband

on his cell phone, but he was unaware of Russell’s trip to Indiana. Detective

Steele also reached Russell’s husband on his cell phone and asked him to have

his wife contact Steele.

[10] In the early morning of September 24, Russell called the Wells County Sheriff’s

Department from a gas station on Interstate 76 in Portage County, Ohio, and

spoke with a dispatcher. Russell told the dispatcher that she had gotten a

message from Andrew that she was going to be arrested, and she asked the

dispatcher what she should do. The dispatcher told Russell to stay where she

was and a deputy would be sent to speak with her. Deputy Mark Millhoff of

the Portage County Sheriff’s Office went to Russell’s location at approximately

2:30 a.m. on September 24 and found Russell in the silver pickup truck. After

obtaining Russell’s consent to a search of her truck, Deputy Millhoff searched

the bed of the pickup truck and found only moving blankets and a “hand truck

moving dolly.” Id. at 258. Russell then gave a statement to Deputy Millhoff in

which she denied ever entering the Gartins’ residence or outbuildings. Russell

also stated that she had transported various garbage items from Connecticut to

Indiana, where she had intended to dispose of them. Deputy Millhoff advised

Russell that she was free to leave.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 5 of 11 [11] On October 2, law enforcement in Stark County, Ohio, discovered items from

the Gartins’ home that had been dumped alongside a trail located in Canal

Fulton, Ohio. These items included Andrew’s prescription bottles and a

necklace that the Gartins’ daughter had made. The officers collected the items

and sent them to the Wells County Sheriff’s Department.

[12] The State charged Russell with burglary, as a Level 4 felony. At the ensuing

jury trial, the court admitted into evidence, without objection, State’s Exhibit

23, which consisted of records the State had subpoenaed from Verizon Wireless

for a cell phone belonging to Russell.1 The trial court also admitted, over

Russell’s objection to an “insufficient foundation,” Exhibit 24, which was a

map of areas of Ohio from which Russell had placed cell phone calls on

September 23 and 24. Wells County Detective Diane Betz testified that, using

her training on cell phone technology, she was able to summarize the

complicated cell phone records contained in Exhibit 23 into the more easily

understood map contained in Exhibit 24. The map depicted the locations of

Russell’s cell phone at the dates and times of three calls. Detective Betz had

generated the map by retrieving latitude and longitude data from the Verizon

records in Exhibit 23 and typing that data into a “Streets and Trips” application

that converts latitudes and longitudes into specific pinpoints on a map. Id. at

420, 422. One of the calls depicted in Exhibit 24 was placed near Canal Fulton,

1 The State had previously provided the records contained in State’s Exhibit 23 to Russell. Tr. at 426. However, the State did not print out all of the records contained in Exhibit 23 because it was too voluminous to conveniently do so. Tr. at 418.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 6 of 11 Ohio, at “0946 hours” on September 24 from “40.89142 degrees N 81.57404

degrees W,” and another was placed near the gas station on Interstate 76 in

Portage County, Ohio, later that same day. State’s Ex. 24.

[13] The jury found Russell guilty as charged, and the trial court entered judgment

of conviction and sentence accordingly. This appeal ensued.

Discussion and Decision Issue One: Admission of Evidence

[14] Russell first contends that the trial court erred when it admitted into evidence

State’s Exhibit 24. We review a trial court’s admission or exclusion of evidence

for an abuse of discretion, which occurs if the court’s decision is clearly against

the logic and effect of the facts and circumstances before the court. Speybroeck v.

State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007).

[15] This case is similar to McCowan v. State, 10 N.E.3d 522 (Ind. Ct. App. 2014),

summarily aff’d in relevant part, 27 N.E.3d 760, 768 (Ind. 2015), where we upheld

the admission of testimony that was similar to Betz’s testimony and made by an

officer with training similar to Betz’s training. In McCowan, the officer used his

special training on cell phone technology to read Verizon cell phone records

and, from those records, plot out on a map the defendant’s location at certain

times and places. The officer then testified about the map which summarized

the information from the Verizon cell phone records. We held that such

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 7 of 11 testimony was admissible2 because the witness was not offering expert witness

testimony, but using his specialized training to testify about general principles

to help the jury understand the information contained in the Verizon cell phone

records. Id. at 532-33.

[16] As in McCowan, Betz “did not personally perform any calculations or analysis

to render an opinion about the location of [Russell’s] phone.” Id. at 532.

Rather, she used her training to read the complicated Verizon records in State’s

Exhibit 23—which had already been admitted without objection—to

summarize and present that information in a way that would help the jury

understand, i.e., in the form of the map contained in State’s Exhibit 24.3

Testimony presented by such a “skilled witness” was admissible under Indiana

Rule of Evidence 701 because it was rationally based on Betz’s perception of

the information contained in the State’s already-admitted Exhibit 23 and

because it was helpful to the jury’s clear understanding of the complicated

Verizon cell phone records. See, e.g., Satterfield v. State, 33 N.E.3d 344, 353 (Ind.

2015). And, as Exhibit 24 was “a summary, chart or calculation to prove the

content” of the voluminous records in already-admitted Exhibit 23 that could

2 We actually held that the defendant had waived his objections to both the cell phone records and the officer’s testimony about those records but, notwithstanding waiver, the records and testimony were admissible. Id. at 525-26. 3 Thus, Russell is incorrect when she states that the “RTT [i.e., real time tool] records” on which Betz relied for Exhibit 24 “were never presented as evidence.” Appellant’s Br. at 19. It is clear that those records were part of State’s Exhibit 23. Tr. at 419.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 8 of 11 not be easily examined in court, it was admissible pursuant to Indiana Rule of

Evidence 1006.

[17] Moreover, as the trial court noted, Russell had the opportunity to, and did,

cross-examine Betz about State’s Exhibit 24. It was up to the jury to weigh that

evidence and judge the credibility of the witness. McCowan, 10 N.E.3d at 533

(“[A]ny dispute regarding the accuracy of the estimates [of the cell phone

locations] went to the weight rather than to the admissibility of the evidence

and should be addressed through cross-examination.”). The trial court did not

abuse its discretion in admitting State’s Exhibit 24 and Betz’ testimony related

to that exhibit.

Issue Two: Sufficiency of the Evidence

[18] Russell maintains that the State failed to provide sufficient evidence to support

her conviction. In reviewing a sufficiency of the evidence claim, we neither

reweigh the evidence nor assess the credibility of the witnesses. See, e.g., Jackson

v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

evidence and reasonable inferences therefrom that support the conviction,

Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans. denied, and we

“consider conflicting evidence most favorably to the [fact-finder’s] ruling,”

Wright v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the probative

evidence and reasonable inferences drawn from that evidence “could have

allowed a reasonable trier of fact to find the defendant guilty beyond a

reasonable doubt.” Jackson, 925 N.E.2d at 375.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 9 of 11 [19] To prove Russell committed burglary, as a Level 4 felony, the State was

required to show that Russell broke and entered a building that was a dwelling

of another person with the intent to commit a felony or theft in that building.

Ind. Code § 35-43-2-1 (2014). Russell does not dispute that someone broke and

entered into the Gartins’ residence with the intent to steal their property.

Rather, she maintains that the State failed to provide sufficient evidence that

she was that person because, she alleges, there was no evidence that anyone

saw her in the Gartins’ home or outbuildings or saw her in possession of the

Gartins’ stolen property. However, it is well-established that a crime may be

proven by circumstantial evidence if the trier of fact may reasonably draw

inferences from such evidence that enable it to find the defendant guilty beyond

a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001). And,

although mere presence at the crime scene is insufficient proof to support a

conviction, “presence at the scene coupled with other circumstances tending to

show participation in the crime may be sufficient to sustain a guilty verdict.”

Rohr v. State, 866 N.E.2d 242, 248-49 (Ind. 2007).

[20] Here, the witness testimony and the State’s exhibits showed that Russell was at

the back of the Gartins’ home on the morning of September 23, 2014, after the

Gartins had left the home without locking the door. A neighbor discovered that

Russell had her pickup truck parked by the Gartins’ door, and the bed of the

truck contained objects covered up with blankets. Russell gave conflicting

accounts to the neighbor and the Gartins about why she was in Indiana and at

the Gartins’ residence, and she appeared nervous. After Russell left, the

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 10 of 11 Gartins noticed items missing from their residence that were not missing before

Russell was there. Russell’s cell phone records show that she traveled from

Indiana through Ohio on September 23 and 24, during which time she made

several cell phone calls. State’s Exhibits 23 and 24 show that Russell made a

cell phone call from Canal Fulton, Ohio on September 24 at 9:46 a.m.

Approximately one week later, Ohio law enforcement found some of the

Gartins’ stolen property in Canal Fulton, Ohio. It was reasonable for the jury

to infer from all of that circumstantial evidence that Russell broke and entered

the Gartins’ residence with the intent to steal their property.4 The State

provided sufficient evidence to support Russell’s burglary conviction.

[21] Affirmed.

Vaidik, C.J., and Baker, J., concur.

4 Russell contends that it was a “physical impossibility” for her to have stolen the Gartins’ gun safe because it was too heavy for her to have carried it by herself. Appellant’s Br. at 20-22. Given the evidence that all the items in the bed of Russell’s pickup truck were covered by blankets on September 23 and that a dolly and blankets were in the bed of her truck on September 24, there was circumstantial evidence from which the jury could reasonably infer that Russell used a dolly to move the gun safe to her truck and that it was not visible on September 23 because it was covered with a blanket, like all the other items in her truck at that time. Regardless, additional items were stolen from the Gartins’ residence that Russell could have easily carried, e.g., jewelry boxes.

Court of Appeals of Indiana | Memorandum Decision 90A02-1602-CR-355 | November 15, 2016 Page 11 of 11