MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 07 2017, 7:04 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Eugene D. White, November 7, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1705-CR-1156 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1608-F4-55
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 1 of 7 [1] Eugene D. White appeals following his convictions for Level 4 Felony
Burglary1 and Class A Misdemeanor Resisting Law Enforcement. 2 White
argues that there is insufficient evidence supporting the burglary conviction and
that the sentence imposed by the trial court is inappropriate in light of the
nature of the offenses and his character. Finding that the evidence is sufficient
and the sentence is not inappropriate, we affirm.
Facts [2] Around 7:30 a.m. on August 5, 2016, Philip Adelman got up for work,
showered, and went downstairs, where he noticed that his back door was wide
open. As he walked through his house, Adelman discovered that his 32-inch
television, laptop computer, backpack, and a knife were missing. The security
bar for his back door had been removed and set aside, and a window screen was
found in the grass outside the house. Adelman called 911.
[3] At approximately 7:40 a.m., Fort Wayne Police Detective Arthur Billingsley
was driving to work when he saw an individual later identified as White
walking down the street wearing a backpack and carrying a large television.
Detective Billingsley turned on his red and blue lights, put his car in park, and
identified himself as a police officer, asking White if he had a moment to talk.
White told the detective that he had just left his brother’s house, that they had
1 Ind. Code § 35-43-2-1. 2 Ind. Code § 35-44.1-3-1.
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 2 of 7 played videogames all night, and that he was on his way to basketball practice.
White said that he carries his television back and forth with him every time they
play videogames. While Detective Billingsley was talking, White set down the
television and ran away, still wearing the backpack. Police officers eventually
apprehended White and obtained a warrant to search his backpack. Inside the
backpack, police found a laptop computer, a power cord, a computer mouse
and pad, and a knife. Adelman later identified these items, as well as the
television White had been carrying, as his belongings.
[4] On August 11, 2016, the State charged White with Level 4 felony burglary and
Class A misdemeanor resisting law enforcement. Following a March 28, 2017,
jury trial, the jury found White guilty as charged. On April 26, 2017, the trial
court sentenced him to concurrent terms of ten years for burglary and one year
for resisting law enforcement. White now appeals.
Discussion and Decision I. Sufficiency [5] White first argues that the evidence is insufficient to support his burglary
conviction. When reviewing a claim of insufficient evidence, we will consider
only the evidence and reasonable inferences that support the conviction. Gray
v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the
evidence and inferences, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.
2009).
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 3 of 7 [6] To convict White of Level 4 felony burglary, the State was required to prove
beyond a reasonable doubt that he broke and entered a dwelling with intent to
commit a felony or theft in it. I.C. § 35-43-2-1. A burglary conviction may be
sustained by circumstantial evidence alone. Allen v. State, 743 N.E.2d 1222,
1230 (Ind. Ct. App. 2001).
[7] White concedes that he was found in possession of items that had been stolen
from Adelman’s residence, but argues that the evidence does not support an
inference that he was the person who burglarized the home. The unexplained
possession of recently stolen property provides support for an inference of guilt
for theft of that property and will support a burglary conviction so long as there
is evidence that there was, in fact, a burglary committed. Id. Possession of
stolen property remains unexplained when the factfinder rejects the defendant’s
explanation as being unworthy of credit. Id. When determining whether the
possession was recent, we consider the length of time between the theft and the
possession and “the circumstances of the case (such as defendant’s familiarity
or proximity to the property at the time of the theft) and the character of the
goods (such as whether they are readily salable and easily portable or difficult to
dispose of and cumbersome).” Id.
[8] Here, law enforcement discovered White walking just blocks from Adelman’s
home before 8:00 a.m., less than thirty minutes after Adelman had discovered
that his home was burglarized, carrying a television and other items that had
been stolen from the home. White argues that there is no evidence establishing
when the burglary occurred, but a reasonable factfinder could infer from the
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 4 of 7 evidence above that the burglary had occurred a short time before White was
found walking on a nearby street carrying the stolen items. Moreover, White’s
explanation to the detective—that he carried a large television between two
places every time he and his brother played videogames—was implausible, and
did not account for the stolen items in the backpack he was carrying.
Additionally, while the detective was talking, White set down the television and
fled, exhibiting consciousness of guilt. When considered in full, this evidence is
sufficient to support White’s burglary conviction.
II. Appropriateness [9] White next argues that the aggregate ten-year sentence imposed by the trial
court is inappropriate in light of the nature of the offenses and his character
pursuant to Indiana Appellate Rule 7(B). In considering an argument under
Rule 7(B), we must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 07 2017, 7:04 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Eugene D. White, November 7, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1705-CR-1156 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1608-F4-55
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 1 of 7 [1] Eugene D. White appeals following his convictions for Level 4 Felony
Burglary1 and Class A Misdemeanor Resisting Law Enforcement. 2 White
argues that there is insufficient evidence supporting the burglary conviction and
that the sentence imposed by the trial court is inappropriate in light of the
nature of the offenses and his character. Finding that the evidence is sufficient
and the sentence is not inappropriate, we affirm.
Facts [2] Around 7:30 a.m. on August 5, 2016, Philip Adelman got up for work,
showered, and went downstairs, where he noticed that his back door was wide
open. As he walked through his house, Adelman discovered that his 32-inch
television, laptop computer, backpack, and a knife were missing. The security
bar for his back door had been removed and set aside, and a window screen was
found in the grass outside the house. Adelman called 911.
[3] At approximately 7:40 a.m., Fort Wayne Police Detective Arthur Billingsley
was driving to work when he saw an individual later identified as White
walking down the street wearing a backpack and carrying a large television.
Detective Billingsley turned on his red and blue lights, put his car in park, and
identified himself as a police officer, asking White if he had a moment to talk.
White told the detective that he had just left his brother’s house, that they had
1 Ind. Code § 35-43-2-1. 2 Ind. Code § 35-44.1-3-1.
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 2 of 7 played videogames all night, and that he was on his way to basketball practice.
White said that he carries his television back and forth with him every time they
play videogames. While Detective Billingsley was talking, White set down the
television and ran away, still wearing the backpack. Police officers eventually
apprehended White and obtained a warrant to search his backpack. Inside the
backpack, police found a laptop computer, a power cord, a computer mouse
and pad, and a knife. Adelman later identified these items, as well as the
television White had been carrying, as his belongings.
[4] On August 11, 2016, the State charged White with Level 4 felony burglary and
Class A misdemeanor resisting law enforcement. Following a March 28, 2017,
jury trial, the jury found White guilty as charged. On April 26, 2017, the trial
court sentenced him to concurrent terms of ten years for burglary and one year
for resisting law enforcement. White now appeals.
Discussion and Decision I. Sufficiency [5] White first argues that the evidence is insufficient to support his burglary
conviction. When reviewing a claim of insufficient evidence, we will consider
only the evidence and reasonable inferences that support the conviction. Gray
v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the
evidence and inferences, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.
2009).
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 3 of 7 [6] To convict White of Level 4 felony burglary, the State was required to prove
beyond a reasonable doubt that he broke and entered a dwelling with intent to
commit a felony or theft in it. I.C. § 35-43-2-1. A burglary conviction may be
sustained by circumstantial evidence alone. Allen v. State, 743 N.E.2d 1222,
1230 (Ind. Ct. App. 2001).
[7] White concedes that he was found in possession of items that had been stolen
from Adelman’s residence, but argues that the evidence does not support an
inference that he was the person who burglarized the home. The unexplained
possession of recently stolen property provides support for an inference of guilt
for theft of that property and will support a burglary conviction so long as there
is evidence that there was, in fact, a burglary committed. Id. Possession of
stolen property remains unexplained when the factfinder rejects the defendant’s
explanation as being unworthy of credit. Id. When determining whether the
possession was recent, we consider the length of time between the theft and the
possession and “the circumstances of the case (such as defendant’s familiarity
or proximity to the property at the time of the theft) and the character of the
goods (such as whether they are readily salable and easily portable or difficult to
dispose of and cumbersome).” Id.
[8] Here, law enforcement discovered White walking just blocks from Adelman’s
home before 8:00 a.m., less than thirty minutes after Adelman had discovered
that his home was burglarized, carrying a television and other items that had
been stolen from the home. White argues that there is no evidence establishing
when the burglary occurred, but a reasonable factfinder could infer from the
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 4 of 7 evidence above that the burglary had occurred a short time before White was
found walking on a nearby street carrying the stolen items. Moreover, White’s
explanation to the detective—that he carried a large television between two
places every time he and his brother played videogames—was implausible, and
did not account for the stolen items in the backpack he was carrying.
Additionally, while the detective was talking, White set down the television and
fled, exhibiting consciousness of guilt. When considered in full, this evidence is
sufficient to support White’s burglary conviction.
II. Appropriateness [9] White next argues that the aggregate ten-year sentence imposed by the trial
court is inappropriate in light of the nature of the offenses and his character
pursuant to Indiana Appellate Rule 7(B). In considering an argument under
Rule 7(B), we must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[10] For White’s Level 4 felony conviction, he faced a sentence of two to twelve
years imprisonment, with an advisory term of six years. Ind. Code § 35-50-2-
5.5. The trial court imposed a ten-year term. For his Class A misdemeanor
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 5 of 7 conviction, White faced a sentence of up to one year. I.C. § 35-50-3-2. He
received a one-year term, to be served concurrently with his burglary sentence.
[11] With respect to the nature of the offenses, White broke into Adelman’s dwelling
while Adelman was asleep and stole multiple items from the home. He then
fled from law enforcement when confronted while carrying the stolen items.
While these offenses are not the worst of the worst, we find it noteworthy that
in 2013, White was convicted of the same character of offense—Class B felony
burglary—and was afforded a lenient sentence that was largely suspended to
probation.
[12] Regarding White’s character, we note that at a relatively young age of twenty-
six, he has already had far too many contacts with the criminal justice system,
dating back to when he was a juvenile. As an adult, he has been convicted of
Class B felony burglary, Class D felony auto theft, and two counts of Class A
misdemeanor driving while suspended. He was on probation when he
committed the offenses at issue in this appeal. White has been afforded chances
in the past with informal probation as a juvenile and shorter jail sentences and
probation as an adult. Despite these opportunities, White shows an inability or
unwillingness to conform his behavior to the rule of law. Under these
circumstances, we do not find that the aggregate ten-year sentence imposed by
the trial court is inappropriate in light of the nature of the offenses and his
character.
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 6 of 7 [13] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017 Page 7 of 7