Devon Ballard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 22, 2016
• Docket: 78A01-1604-CR-733
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 22 2016, 8:19 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Gregory F. Zoeller Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Devon Ballard, September 22, 2016

Appellant-Defendant, Court of Appeals Cause No. 78A01-1604-CR-733 v. Appeal from the Switzerland Circuit Court State of Indiana, The Honorable W. Gregory Coy, Judge Appellee-Plaintiff. Cause No. 78C01-1501-FC-18

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 1 of 12 STATEMENT OF THE CASE

[1] Appellant-Defendant, Devon Ballard (Ballard), appeals his conviction and

sentence for burglary, a Class C felony, Ind. Code § 35-43-2-1.

[2] We affirm.

ISSUES

[3] Ballard raises two issues on appeal, which we restate as follows:

(1) Whether there was sufficient evidence to sustain Ballard’s burglary

conviction; and

(2) Whether Ballard’s sentence is inappropriate in light of the nature of the

offense and his character.

FACTS AND PROCEDURAL HISTORY

[4] During the early morning hours of March 1, 2011, Ballard called Luke May

(May), a person he had known since elementary school and played basketball

with at a nearby park, asking whether he could borrow a saw. May agreed and

when Ballard arrived to pick it up, Ballard informed May that he wanted to

“cut open the pop machine” at Fairview Grocery Store. (Transcript p. 97).

May entered Ballard’s vehicle and they drove to the grocery store. Both took

turns at cutting the vending machine open, but they were unsuccessful. At that

point, Ballard kicked the door to the grocery store open and after a few minutes,

he exited the store with “an arm full of cigarettes” and proceeded to put them in

the trunk of his car. (Tr. p. 97). According to May, Ballard went back inside

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 2 of 12 the store a second time to get more cigarettes and emerged with a trash bag,

which Ballard put in the trunk of his car.

[5] At approximately 2:00 a.m., Jay Baker (Baker), who lived across the street was

awakened by loud banging noises. When he looked outside, he saw a man

banging on the vending machine outside the grocery store and another man

inside the store. Baker saw that the men were wearing hats—with one wearing

“a toboggan-style hat” and the other “a fedora type” of hat. (Tr. p. 37). Baker

called the police. Meanwhile, Ballard entered the grocery store a third time.

May, who was maintaining visual surveillance the entire time, saw the police at

the end of the road and he warned Ballard. May took off running and when

Ballard exited the store, he ran in another direction. Later, May and Ballard

were reunited in the woods nearby. From there, they ran in the same direction

before May split off and ran home. May lost his toboggan hat in the woods.

[6] At approximately 4:00 a.m., Detective Chris Curry (Detective Curry) of the

Switzerland County Sheriff’s Department was dispatched to provide assistance

with his K-9 partner in the burglary investigation. Detective Curry and the K-9

unit tracked the suspects’ footprints through the field behind the grocery store

and into a large wooded area. The officers were unable to continue with the

search because the vegetation became too dense and it was dark. The following

day, Detective Curry returned to the grocery store to survey the scene.

Detective Curry observed that the store’s merchandise was in disarray, there

was damage to a vending machine outside, and tools had been left outside—

namely a reciprocal saw, a sledge hammer, and a screwdriver. In addition, the

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 3 of 12 K-9 officer sniffed out a toboggan hat and brown glove in the woods nearby.

Alice Webb (Webb), a co-owner of the grocery store, indicated to the police

that she was missing a Tupperware container with $80 worth of change that

they had removed from the vending machine the day before, coin rolls worth

about $40, and about 24-30 packs of cigarettes. Local businesses were notified

to be on the lookout for anyone using a large amount of change. On the same

day, March 1, 2011, Ballard bought merchandise with rolled and loose change

at a Marathon Gas Station. Ballard also used $60 in loose change to purchase a

pre-paid phone card. Also, at a BP Gas Station, Ballard paid for merchandise

with $10 in rolled quarters, and he exchanged $30 of rolled quarters for paper

currency. The next day, March 2, 2011, Ballard went again to the Marathon

Gas Station and asked to exchange a pack of cigarettes for money. The owner,

who did not recall Ballard ever buying a carton of cigarettes at his store,

refused.

[7] On March 3, 2011, Deputy Sherriff Richard Lock (Deputy Lock) interviewed

Ballard. Ballard admitted that he used loose change to make purchases at BP

and Marathon gas stations, and at CVS. A search warrant was subsequently

obtained. When the police arrived to search Ballard’s residence, they found the

gate locked. Assistance was called to bring a bolt cutter, and while the officers

were waiting, they saw a vehicle driving away from the residence and far back

into a field and then returning to the residence. When the bolt cutter arrived,

the officers gained entry to Ballard’s home but they did not find evidence linked

to the burglary. A few days later, David Gilbert (Gilbert) bought twenty packs

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 4 of 12 of Marlboro cigarettes from Ballard for $60, and Ballard gave him three free

packs of cigarettes. On March 10, 2011, Michael Gray (Gray) went to Ballard’s

residence and bought twenty packs of Marlboro Light for $50.

[8] Several months later, hair that had been found in the toboggan hat was linked

to May through DNA testing. In January of 2015, May was interviewed, but

he denied any involvement in the 2011 burglary. On February 9, 2016, the

State filed an Information, charging Ballard with Count I, burglary, a Class C

felony, I.C. § 35-43-2-1; and Count II, theft, a Class D felony, I.C. § 35-43-4-2.

On February 16, 2016, the State added a third Count, vending machine

vandalism, a Class B misdemeanor, I.C. § 35-43-4-7. A jury trial was held on

February 16-18, 2016. In exchange for a reduced sentence, May testified at

Ballard’s trial. At the close of the hearing, the jury found Ballard guilty as

charged. On March 18, 2016, the trial court held a sentencing hearing. The

trial court vacated Ballard’s conviction for theft and subsequently sentenced

Ballard to four years in the Department of Correction for the burglary

conviction—with eighteen months executed, eighteen months in home

detention, and one year suspended to probation. Regarding to his vending

machine vandalism conviction, the trial court sentenced Ballard to an executed

sentence of 180 days.

[9] Ballard now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 5 of 12 DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[10] Ballard first argues that the evidence is insufficient to sustain his conviction

because May’s testimony was incredibly dubious. In reviewing a challenge to

the sufficiency of evidence, we neither reweigh evidence nor judge witness

credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we

consider only the evidence and reasonable inferences most favorable to the

verdict and will affirm the conviction “unless no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt.” Id. It is

therefore not necessary that the evidence “overcome every reasonable

hypothesis of innocence.” Id. (citation omitted). “Where the evidence of guilt is

essentially circumstantial, the question for the reviewing court is whether

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

sufficient evidence.” Jones v. State, 924 N.E.2d 672, 674 (Ind. Ct. App. 2010)

(citation omitted). Without question, a burglary conviction may be supported

solely by circumstantial evidence. Brink v. State, 837 N.E.2d 192, 196 (Ind. Ct.

App. 2005).

[11] This court may impinge upon the jury’s responsibility to judge the credibility of

witnesses only when confronted with inherently improbable testimony or

coerced, equivocal, wholly uncorroborated testimony. Lawson v. State, 966

N.E.2d 1273, 1281 (Ind. Ct. App. 2012). If a sole witness presents inherently

improbable testimony and there is a complete lack of circumstantial evidence, a

defendant’s conviction may be reversed. Fajardo v. State, 859 N.E.2d 1201,

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 6 of 12 1208 (Ind. 2007). This is appropriate only where the court has confronted

inherently improbable testimony or coerced, equivocal, and wholly

uncorroborated testimony of incredible dubiosity. Id. Incredibly dubious or

inherently improbable testimony is that which runs counter to human

experience and which no reasonable person could believe. Campbell v. State, 732

N.E.2d 197, 207 (Ind. Ct. App. 2000). This incredible dubiosity rule applies

only when a witness contradicts himself in a single statement or while

testifying, and does not apply to conflicts between multiple statements. Glenn v.

State, 884 N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. denied.

[12] At Ballard’s jury trial, May testified that Ballard called him at around midnight

and asked him whether he had a saw. Ballard then picked up May and drove to

Fairview Grocery Store. May testified that Ballard kicked the door to the store

open and exited moments later with an arm full of cigarettes, and in a second

entry, Ballard returned with a trash bag which May believed to have contained

more packs of cigarettes.

[13] As for Ballard’s claim that May’s testimony is unbelievable, his argument fails

because there was enough circumstantial evidence to support May’s testimony

that Ballard committed burglary. Webb, a co-owner of the grocery store,

informed the police that she was missing a Tupperware container with $80

worth of loose change which she had taken from the vending machine the day

before, and about $40 of rolled coins. Also missing from the store were

approximately thirty packs of cigarettes. Shortly after the break-in, local

businesses were notified to be on the lookout for someone using loose change to

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 7 of 12 make purchases. On the days that followed the burglary incident, Ballard used

both loose and rolled coins to make purchases at CVS and several gas stations.

In addition, close in time to the break-in, Ballard sold a substantial amount of

cigarettes to two people.

[14] To the extent that Ballard claims that May’s testimony is incredibly dubious

because he altered his narration of events at trial implicating Ballard in the

burglary, we note that a witness’s trial testimony that contradicts that witness’s

earlier statements does not make such testimony incredibly dubious. See

Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001). Lastly, Ballard points to

May’s offhanded statement to the police where he stated “that a nigger is going

to do what he’s going to do.” (Tr. p. 55). Ballard contends that this injected a

bias with the jury members. In other words, Ballard suggests that his race—

being black, was the only evidence of guilt. We disagree. Even without May’s

testimony, the State would still have had enough evidence to convict Ballard of

burglary. The day after the burglary, Ballard was seen cashing large amounts of

loose and rolled change at several local stores. Also, Ballard attempted to get

cash for a pack of cigarettes he never purchased from a Marathon gas station.

In that same month, Ballard sold packs of cigarettes to two individuals on

separate occasions.

[15] With regard to Ballard’s argument that May’s testimony was not credible since

it was offered in exchange for a mitigated sentence, we note that May’s

testimony was exposed to the jury’s scrutiny because he too had been charged

with the same crimes. Also, the jury was made aware of those charges, his

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 8 of 12 guilty plea, and sentence. It was within the jury’s sole province to determine

the credibility of May’s testimony. See Buelna v. State, 20 N.E.3d 137 (Ind.

2014) (jury could reject or rely on the testimony of an accomplice to determine

the defendant’s guilt beyond a reasonable doubt); see also White v. State, 706

N.E.2d 1078, 1080 (Ind. 1999) (incredible dubiosity rule did not apply where

witnesses testified and circumstantial evidence supported convictions even

though three witnesses provided different information after being offered

incentives; jury was presented with information about the incentives). In light

of the foregoing, we conclude that there was sufficient evidence to sustain

Ballard’s conviction for burglary.

II. Inappropriate Sentence 1

[16] Lastly, Ballard contends that his four-year sentence is inappropriate in light of

the nature of the offense and his character. Indiana Appellate Rule 7(B)

provides that we “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [we find] that the sentence is

1 Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence investigation (PSI) report must be excluded from public access. However, in this case, the information contained in the PSI report “is essential to the resolution” of Ballard’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent necessary to resolve the appeal.

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 9 of 12 inappropriate in light of the nature of the offense and the character of the

offender.” The burden is on the defendant to persuade the appellate court that

the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006). “Ultimately the length of the aggregate sentence and how it is to be

served are the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224

(Ind. 2008). Whether we regard a sentence as appropriate at the end of the day

turns on our sense of the culpability of the defendant, the severity of the crime,

the damage done to others, and a myriad of other considerations that come to

light in a given case. Id.

[17] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

1019 (Ind. 2012). For his Class C felony burglary, Ballard faced a sentencing

range of two to eight years, with the advisory sentence being four years. I.C. §

35-50-2-6. Here, the trial court imposed the advisory sentence.

[18] As to the nature of the offense, Ballard called May in the middle of the night

and asked to borrow a saw to open the vending machine outside Fairview

Grocery Store. Ballard also enlisted the help of May. While May struggled to

cut the vending machine open, Ballard kicked the door to the store open and

made repeated trips into the store. Ballard only stopped taking items from the

store when May warned him that the police were coming.

[19] When considering the character of the offender, one relevant fact is the

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 10 of 12 App. 2007). Ballard claims that he is a law-abiding citizen with a limited

criminal history. While Ballard does not have an extensive criminal history,

which includes one adjudication as a juvenile for public intoxication and two

convictions of driving while suspended, the record shows that Ballard has not

led a law-abiding life. In the PSI, Ballard admitted to using marijuana from age

thirteen and that he became a regular smoker shortly thereafter. Ballard also

disclosed that from age sixteen, he began using pain pills every day until he was

twenty-two years old. In addition, Ballard confessed to using heroin from age

seventeen and that he became heavily addicted to it. See Bryant v. State, 802

N.E.2d 486, 501 (Ind. Ct. App. 2004) (holding that when a defendant is aware

that a substance abuse problem exists but does not seek treatment, the failure to

act indicates something aggravating rather than mitigating about his character).

[20] Moreover, we note that Ballard was sentenced to four years for the burglary

conviction, with eighteen months of his sentence to be served in the Switzerland

County Jail, the other eighteen months of his sentence to be served in home

detention, and the balance was suspended to probation. The trial court appears

to have fashioned a sentence for Ballard that is appropriate to the nature of the

offense and the character of the offender. We do not find otherwise.

CONCLUSION

[21] Based on the foregoing, we conclude that there was sufficient evidence to

convict Ballard of burglary, and Ballard’s sentence is appropriate in light of the

nature of the offense and his character.

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 11 of 12 [22] Affirmed.

[23] Barnes, J. concurs

[24] Bailey, J. concurs in result

Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016 Page 12 of 12