Dillon W. Grissell v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 30, 2014
• Docket: 90A02-1308-CR-737
• Status: Unpublished

Opinion

Apr 30 2014, 10:39 am 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 estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DILLON W. GRISSELL, ) ) Appellant-Defendant, ) ) vs. ) No. 90A02-1308-CR-737 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE WELLS CIRCUIT COURT The Honorable Kenton W. Kiracofe, Judge Cause No. 90C01-1211-FC-33

April 30, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge Dillon W. Grissell appeals his convictions of two counts of class C felony Burglary,1

as well as the sentence imposed by the trial court. Grissell raises the following issues for our

review:

1. Was the evidence sufficient to support Grissell’s convictions?

2. Did the trial court err in sentencing Grissell?

We affirm.

On the morning of October 31, 2012, Grissell drove Caleb Nieman to a farm in

Warren. Grissell told Nieman that his uncle owned the farm and had given him permission to

remove grain hopper wagons and sell them for scrap. The farm was actually owned by Rex

and Michelle Banter, who did not know Grissell and had not given him permission to take the

wagons. When they arrived at the farm, Nieman got out of the truck and opened the sliding

doors on an older wooden barn. Grissell and Nieman took two hopper wagons from inside

the barn, attached them to the hitch, and drove to Omni Source, a metal recycling company in

Marion. Nieman went inside and, per Grissell’s instructions, wrote “Uncle’s barn” on the

ticket as the source of the material. Transcript at 77. Omni Source paid Nieman for the

wagons and Nieman, who believed Grissell was sharing the profit with his uncle, gave the

money to Grissell.

Under the same pretext, Grissell drove Nieman to the Banter’s farm again the next

morning. This time, Grissell backed his truck up to a newer metal pole barn. Nieman opened

1 Ind. Code Ann. § 35-43-2-1 (West, Westlaw current with all legislation of the 2nd Reg. Sess. of the 118th General Assembly (2014) with effective dates through May 1, 2014).

2 the metal sliding door, and the pair took a hopper wagon from the barn, attached it to

Grissell’s hitch, and drove to Omni Source. Nieman again wrote “Uncle’s barn” on the

ticket, and gave the proceeds of the sale to Grissell. Id. at 80. Later that day, Rex Banter

discovered that the hopper wagons were missing and called the police.

About two weeks later, the State charged Grissell with two counts of class C felony

burglary. At the conclusion of a two-day jury trial, Grissell was found guilty as charged. The

trial court sentenced Grissell to consecutive terms of six years executed, resulting in a

twelve-year aggregate sentence. Grissell now appeals.

1.

Grissell first argues that the State presented insufficient evidence to support his

burglary convictions. In reviewing a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d

601 (Ind. Ct. App. 2009). Instead, we consider only the evidence supporting the conviction

and the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of

probative value from which a reasonable trier of fact could have drawn the conclusion that

the defendant was guilty of the crime charged beyond a reasonable doubt, then the judgment

will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008).

It is not necessary that the evidence overcome every reasonable hypothesis of

innocence; rather, the evidence is sufficient if an inference may reasonably be drawn from it

to support the conviction. Drane v. State, 867 N.E.2d 144 (Ind. 2007). Accordingly, the

question on appeal is whether the inferences supporting the verdict were reasonable, not

3 whether other, “more reasonable” inferences could have been drawn. Thompson v. State, 804

N.E.2d 1146, 1150 (Ind. 2004). Because reaching alternative inferences is the function of the

trier of fact, we may not reverse a conviction merely because a different inference might

plausibly be drawn from the evidence. Thompson v. State, 804 N.E.2d 1146.

To support Grissell’s class C felony burglary convictions, the State was required to

prove that Grissell broke and entered the building or structure of another person with intent

to commit a felony therein. I.C. § 35-43-2-1. Grissell first argues that the State failed to

prove that he entered the Banters’ barns with intent to commit the felony of theft. In support

of this argument, Grissell directs our attention to his own testimony that he never told

Nieman that the hopper wagons belonged to his uncle and that Nieman’s testimony to that

effect was a lie. This is nothing more than a request to reweigh the evidence and judge the

credibility of witnesses. Nieman testified that Grissell told him that he had permission to

take the grain wagons, which Grissell claimed belonged to his uncle. Nieman testified

further that he did not keep any of the proceeds from Omni Source because he was under the

impression that Grissell was splitting the money with his uncle. Moreover, Grissell’s

cellmate, Dustin Tumbleson, testified that Grissell told him that he had talked someone into

helping him take the hopper wagons by telling him that his uncle was giving them to him to

sell for scrap, and that Grissell was going to try to “turn the whole thing around on the other

guy.” Transcript at 106. This evidence was more than sufficient to support the jury’s

conclusion that Grissell entered the barns with the requisite intent.

Grissell also argues that the State failed to prove the element of breaking, at least with

4 respect to one of the burglary convictions. It is well settled that using even the slightest force

to gain unauthorized entry satisfies the breaking element of burglary. Keller v. State, 987

N.E.2d 1099 (Ind. Ct. App. 2013). Indeed, “opening an unlocked door or pushing a door that

is slightly ajar constitutes a breaking.” Id. at 1118. In support of his argument, Grissell notes

that Rex Banter testified that the front doors of the wooden barn were sliding doors, and the

rear doors had been removed. Banter testified further that when he discovered that the

wagons were missing, he saw tire tracks coming out of the rear of the building. According to

Grissell, this testimony establishes the wagons taken from the wooden barn were removed

through the open rear part of the barn and, consequently, no breaking occurred. Again,

Grissell simply asks us to reweigh the evidence, judge the credibility of witnesses, and

consider evidence unfavorable to the verdict. Nieman testified that he opened the sliding

door to the wooden barn to gain access to the wagons. Because Nieman opened the front

door to gain entry, whether the wagons were removed through the rear door is irrelevant. See

Calhoon v. State, 842 N.E.2d 432, 436 (Ind. Ct. App. 2006) (noting that “what matters for the

purpose of the burglary statute is how the defendant entered the property, not how he exited

the property” (emphasis in original)); see also Joy v. State, 460 N.E.2d 551, 557 (Ind. Ct.

App. 1984) (explaining that “the acts of a confederate in the commission of a crime may be

imputed to a defendant who did not personally commit each and every element of the

offense”). The evidence was sufficient to establish breaking. Accordingly, the State

presented sufficient evidence to support Grissell’s burglary convictions.

2.

5 Grissell also challenges his sentence. Although Grissell frames the issue as a

challenge to the appropriateness of his sentence, his argument is almost entirely directed

toward whether the trial court erred in identifying Grissell’s failure to take responsibility for

his crimes as an aggravating factor. In this manner, Grissell conflates two separate

sentencing standards: whether the trial court abused its discretion in identifying mitigating

and aggravating factors and whether Grissell’s sentence is inappropriate pursuant to Indiana

Appellate Rule 7. “As our Supreme Court has made clear, inappropriate sentence and abuse

of discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind.

Ct. App. 2008). Accordingly, “an inappropriate sentence analysis does not involve an

argument that the trial court abused its discretion in sentencing the defendant.” Id.

With respect to Grissell’s argument concerning the trial court’s consideration of an

allegedly inappropriate aggravating factor, we note that sentencing decisions rest within the

sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified

on reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory range, it is subject

to review only for an abuse of discretion. Id. “An abuse of discretion occurs if the decision

is ‘clearly against the logic and effect of the facts and circumstances before the court or the

reasonable, probable, and actual deductions to be drawn therefrom.’” Id. at 491 (quoting K.S.

v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its sentencing discretion

in a number of ways, including considering aggravating factors that are improper as a matter

of law. Anglemyer v. State, 868 N.E.2d 482. If the trial court abuses its discretion in one of

these or another way, remand for resentencing is the appropriate remedy “if we cannot say

6 with confidence that the trial court would have imposed the same sentence had it properly

considered reasons that enjoy support in the record.” Id. at 491.

Grissell argues that the trial court abused its discretion in considering his failure to

take responsibility for his crime as an aggravating factor. Grissell notes that he pleaded not

guilty and maintained his innocence throughout trial, and he argues that his refusal to admit

guilt or express remorse cannot be considered an aggravating factor. See Kien v. State, 782

N.E.2d 398, 412 (Ind. Ct. App. 2003) (noting that “it is not an aggravating factor for a

defendant, in good faith, to consistently maintain his innocence through all stages of the

criminal proceedings, including sentencing”), trans. denied. Even assuming the trial court

abused its discretion in this regard, remand for resentencing is unwarranted. In its oral

sentencing statement, the trial court identified three aggravating factors: (1) Grissell’s

history of criminal and delinquent behavior; (2) Grissell’s recent violation of probation; and

(3) Grissell’s failure to take responsibility for his crimes. Based on our review of the

sentencing statement, it is clear that the trial court attributed very significant weight to

Grissell’s history of criminal and delinquent behavior and gave Grissell’s failure to take

responsibility relatively little weight. We can therefore say with confidence that the trial

court would have imposed the same sentence had it not considered this factor.

Turning now to Grissell’s challenge to the appropriateness of his sentence, we note that

although a trial court may have acted within its lawful discretion in imposing a sentence,

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate

review and revision of a sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57

7 (Ind. Ct. App. 2009) (citing Anglemyer v. State, 868 N.E.2d 482). This appellate authority is

implemented through Indiana Appellate Rule 7(B), which provides that a court “may revise a

sentence authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Anglemyer v. State, 868 N.E.2d at 491. Nevertheless, “we must

and should exercise deference to a trial court’s sentencing decision, both because Rule 7(B)

requires us to give ‘due consideration’ to that decision and because we understand and

recognize the unique perspective a trial court brings to its sentencing decisions.” Stewart v.

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the burden of

persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073

Grissell was convicted of two counts of class C felony burglary. Accordingly, the

applicable sentencing range for each count was between two and eight years, with a four-year

advisory sentence. Ind. Code Ann. § 35-50-2-6 (West, Westlaw current with all legislation of

the 2nd Reg. Sess. of the 118th General Assembly (2014) with effective dates through May 1,

2014). Grissell was sentenced to consecutive terms of six years on each count, resulting in a

twelve-year aggregate sentence.

The following two sentences comprise the entirety of Grissell’s analysis on the

question of whether his sentence is inappropriate: “Grissell’s pastor and Grissell’s father

testified on Grissell’s behalf. Grissell’s father testified Griseel [sic] would have a place to

live and employment if Grissell were free.” Appellant’s Brief at 14 (transcript citations

omitted). Grissell has made no attempt to explain how these facts reflect positively on his

8 character. Moreover, he has made no argument whatsoever concerning the nature of his

offenses. We therefore find his argument waived for failure to make a cogent argument. See

Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010) (noting that “it is well-established

that a failure to make a cogent argument regarding the nature of the defendant’s offense and

the defendant’s character results in waiver of the defendant’s appropriateness claim”).

Waiver notwithstanding, we cannot conclude that Grissell’s sentence was

inappropriate. Considering the nature of the offenses, we note that Grissell tricked Nieman,

who was eighteen years old and had no history of criminal or delinquent behavior, into

helping him carry out the burglaries. Considering Grissell’s character, we note that Grissell

was only eighteen years old at the time he committed the burglaries at issue here, but he

already had a long history of committing similar offenses. As a juvenile, Grissell was twice

adjudicated delinquent for acts that would be class C felony burglary if committed by an

adult. Both of the adjudications involved the theft of scrap metal. In 2012, when he was

eighteen years old, Grissell was charged with attempted burglary and attempted theft, again

related to the attempted theft of scrap metal. Grissell pleaded guilty to attempted theft in

return for the dismissal of the attempted burglary charge. Grissell committed the instant

offenses within months of the attempted theft. Grissell also has a history of violating

probation and conditions of bond. In sum, Grissell has displayed an uninterrupted pattern of

criminal behavior that has not been deterred by contact with the criminal justice system. For

all of these reasons, we cannot conclude that his twelve-year aggregate sentence for two

counts of class C felony burglary is inappropriate.

9 Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.