MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 28 2017, 9:32 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Houdek Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary L. Watts, June 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1611-CR-2647 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley E. Kroh, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G03-1608-F5-31816
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 1 of 7 Case Summary
[1] Gary Watts appeals his conviction and sentence for Level 5 felony burglary. He
argues that the evidence is insufficient to support his conviction and that his
sentence is inappropriate. Finding the evidence sufficient and his sentence not
inappropriate, we affirm.
Facts and Procedural History
[2] On August 10, 2016, around 2:00 a.m., Richard McCoy and his family were
sleeping inside their home near 33rd Street and Washington Boulevard in
Indianapolis when the security system alerted them to an entry into their
detached garage. McCoy called 911. While McCoy spoke to the 911
dispatcher, he noticed that both the entrance door and the overhead garage
door were open. Additionally, he saw a person exit the garage with his son’s
blue Cannondale bicycle. Within a minute and a half, Officers Robert Hons
and Blake Littrell of the Indianapolis Metropolitan Police Department
responded to McCoy’s call. McCoy informed Officer Hons that the person
rode away on his son’s bicycle northbound into the alley by the garage.
[3] Following that lead, Officer Hons saw Watts riding the bicycle north on
Washington Boulevard near 33rd Street. When Officer Hons stopped his patrol
car, Watts “cut” west onto 33rd Street and then turned north into an alley. Tr.
Vol. II p. 24. The officers stopped Watts coming out of the alley. Watts told
the officers that he had “just” purchased the bicycle for “$20 or $30.” Id. at 32.
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 2 of 7 Watts was arrested. Afterwards, the officers returned to McCoy’s house.
McCoy identified the bicycle as his son’s, and the officers returned it to him.
Upon a garage inspection, McCoy informed the officers that a second bicycle
was missing and that the entrance door had been damaged by what looked like
a metal tool. The officers did not find the second bicycle.
[4] The State charged Watts with Level 5 felony burglary and Level 6 felony theft.
A bench trial was held. During closing argument, defense counsel argued that
Watts bought the bicycle and did not know it was stolen. The court found him
guilty of burglary:
I really can’t find the interpretation of buying a bicycle at 2:00 a.m. in the morning, within minutes after a burglary has occurred, to be reasonable. . . . [F]act finders are allowed to use their common sense and experience gained from day-to-day living. And it just stretches the imagination to . . . believe that these things happened within such a short period of time. . . . And you were caught basically red-handed with a piece of property that was taken from the McCoys’ garage, so the Court does believe that you’re guilty.
Id. at 39-40. The trial court also found Watts guilty of theft but entered
judgment of conviction for burglary only due to double-jeopardy concerns.
[5] At the sentencing hearing, the trial court identified two aggravating
circumstances: (1) Watts’s “significant” criminal history, including two prior
burglary convictions and (2) he was on probation for theft at the time of this
offense. Id. at 65. The court identified two mitigating circumstances: (1)
prolonged incarceration would cause undue hardship to his elderly
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 3 of 7 grandmother (whom he took care of) and (2) Watts’s health issues. The court
sentenced Watts to five years, with four years in the Department of Correction
followed by one year on work release.
[6] Watts now appeals.
Discussion and Decision
[7] Watts raises two issues on appeal. He contends that the evidence is insufficient
to support his conviction and that his sentence is inappropriate.
I. Sufficiency of the Evidence
[8] Watts first contends that the evidence is insufficient to support his conviction
for Level 5 felony burglary. When reviewing the sufficiency of the evidence to
support a conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the judgment. Sallee v. State, 51
N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of appellate
courts, to assess witness credibility and weigh the evidence to determine
whether it is sufficient to support a conviction. Id. It is not necessary that the
evidence “overcome every reasonable hypothesis of innocence.” Id. (quotation
omitted). The evidence is sufficient if an inference may reasonably be drawn
from it to support the judgment. Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007).
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 4 of 7 [9] In order to convict Watts as charged here, the State had to prove beyond a
reasonable doubt that he broke into and entered McCoy’s garage with intent to
commit a felony (theft) in it. Appellant’s App. Vol. II p. 17; see also Ind. Code §
35-43-2-1. Watts argues that “[t]he State failed to prove that [he] was the
person who pried open . . . McCoy’s garage door or that he was the individual .
. . McCoy observed in his garage.” Appellant’s Br. p. 7. Conceding that he was
discovered near the scene of the burglary shortly after it occurred in possession
of property taken from that crime, Watts nevertheless claims that the evidence
“is only sufficient to show he received stolen property.” Id. He posits that
because the second bicycle was never found and “he did not possess any
burglary tools,” another person burglarized the garage, and he merely “took
possession of stolen goods.” Id. at 8.
[10] The record reflects that McCoy spoke to the 911 dispatcher as a person rode his
son’s bicycle northbound into the alley by the garage. IMPD officers stopped
Watts within minutes of McCoy’s 911 call riding the bicycle. When Officer
Hons first spotted Watts and stopped his patrol car, Watts turned onto a street
and then into an alley before he was eventually apprehended. Watts argued to
the trial court that he did not take the bicycle from McCoy’s garage but rather
just recently purchased it. However, the trial court found this story to be
unbelievable given the time of day as well as the short amount of time in
between the occurrence of the burglary and Watts’s apprehension. Watts’s
argument is merely a request for us to reweigh the evidence, which we will not
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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 Jun 28 2017, 9:32 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Houdek Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary L. Watts, June 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1611-CR-2647 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley E. Kroh, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G03-1608-F5-31816
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 1 of 7 Case Summary
[1] Gary Watts appeals his conviction and sentence for Level 5 felony burglary. He
argues that the evidence is insufficient to support his conviction and that his
sentence is inappropriate. Finding the evidence sufficient and his sentence not
inappropriate, we affirm.
Facts and Procedural History
[2] On August 10, 2016, around 2:00 a.m., Richard McCoy and his family were
sleeping inside their home near 33rd Street and Washington Boulevard in
Indianapolis when the security system alerted them to an entry into their
detached garage. McCoy called 911. While McCoy spoke to the 911
dispatcher, he noticed that both the entrance door and the overhead garage
door were open. Additionally, he saw a person exit the garage with his son’s
blue Cannondale bicycle. Within a minute and a half, Officers Robert Hons
and Blake Littrell of the Indianapolis Metropolitan Police Department
responded to McCoy’s call. McCoy informed Officer Hons that the person
rode away on his son’s bicycle northbound into the alley by the garage.
[3] Following that lead, Officer Hons saw Watts riding the bicycle north on
Washington Boulevard near 33rd Street. When Officer Hons stopped his patrol
car, Watts “cut” west onto 33rd Street and then turned north into an alley. Tr.
Vol. II p. 24. The officers stopped Watts coming out of the alley. Watts told
the officers that he had “just” purchased the bicycle for “$20 or $30.” Id. at 32.
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 2 of 7 Watts was arrested. Afterwards, the officers returned to McCoy’s house.
McCoy identified the bicycle as his son’s, and the officers returned it to him.
Upon a garage inspection, McCoy informed the officers that a second bicycle
was missing and that the entrance door had been damaged by what looked like
a metal tool. The officers did not find the second bicycle.
[4] The State charged Watts with Level 5 felony burglary and Level 6 felony theft.
A bench trial was held. During closing argument, defense counsel argued that
Watts bought the bicycle and did not know it was stolen. The court found him
guilty of burglary:
I really can’t find the interpretation of buying a bicycle at 2:00 a.m. in the morning, within minutes after a burglary has occurred, to be reasonable. . . . [F]act finders are allowed to use their common sense and experience gained from day-to-day living. And it just stretches the imagination to . . . believe that these things happened within such a short period of time. . . . And you were caught basically red-handed with a piece of property that was taken from the McCoys’ garage, so the Court does believe that you’re guilty.
Id. at 39-40. The trial court also found Watts guilty of theft but entered
judgment of conviction for burglary only due to double-jeopardy concerns.
[5] At the sentencing hearing, the trial court identified two aggravating
circumstances: (1) Watts’s “significant” criminal history, including two prior
burglary convictions and (2) he was on probation for theft at the time of this
offense. Id. at 65. The court identified two mitigating circumstances: (1)
prolonged incarceration would cause undue hardship to his elderly
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 3 of 7 grandmother (whom he took care of) and (2) Watts’s health issues. The court
sentenced Watts to five years, with four years in the Department of Correction
followed by one year on work release.
[6] Watts now appeals.
Discussion and Decision
[7] Watts raises two issues on appeal. He contends that the evidence is insufficient
to support his conviction and that his sentence is inappropriate.
I. Sufficiency of the Evidence
[8] Watts first contends that the evidence is insufficient to support his conviction
for Level 5 felony burglary. When reviewing the sufficiency of the evidence to
support a conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the judgment. Sallee v. State, 51
N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of appellate
courts, to assess witness credibility and weigh the evidence to determine
whether it is sufficient to support a conviction. Id. It is not necessary that the
evidence “overcome every reasonable hypothesis of innocence.” Id. (quotation
omitted). The evidence is sufficient if an inference may reasonably be drawn
from it to support the judgment. Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007).
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 4 of 7 [9] In order to convict Watts as charged here, the State had to prove beyond a
reasonable doubt that he broke into and entered McCoy’s garage with intent to
commit a felony (theft) in it. Appellant’s App. Vol. II p. 17; see also Ind. Code §
35-43-2-1. Watts argues that “[t]he State failed to prove that [he] was the
person who pried open . . . McCoy’s garage door or that he was the individual .
. . McCoy observed in his garage.” Appellant’s Br. p. 7. Conceding that he was
discovered near the scene of the burglary shortly after it occurred in possession
of property taken from that crime, Watts nevertheless claims that the evidence
“is only sufficient to show he received stolen property.” Id. He posits that
because the second bicycle was never found and “he did not possess any
burglary tools,” another person burglarized the garage, and he merely “took
possession of stolen goods.” Id. at 8.
[10] The record reflects that McCoy spoke to the 911 dispatcher as a person rode his
son’s bicycle northbound into the alley by the garage. IMPD officers stopped
Watts within minutes of McCoy’s 911 call riding the bicycle. When Officer
Hons first spotted Watts and stopped his patrol car, Watts turned onto a street
and then into an alley before he was eventually apprehended. Watts argued to
the trial court that he did not take the bicycle from McCoy’s garage but rather
just recently purchased it. However, the trial court found this story to be
unbelievable given the time of day as well as the short amount of time in
between the occurrence of the burglary and Watts’s apprehension. Watts’s
argument is merely a request for us to reweigh the evidence, which we will not
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 5 of 7 do. Accordingly, the evidence is sufficient to support Watts’s conviction for
Level 5 felony burglary.
II. Appropriateness
[11] Watts next contends that his five-year sentence—with four years executed in the
DOC and one year on work release—is inappropriate in light of “the relatively
low pecuniary loss, no violence and low potential for violence” of the burglary
as well as his poor health and the fact that he is “the loving primary caregiver
for his elderly grandmother.” Appellant’s Br. p. 6.
[12] The Indiana Constitution authorizes independent appellate review and revision
of a trial court’s sentencing decision. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).
This 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
defendant.” Ind. Appellate Rule 7(B). “[A] defendant must persuade the
appellate court that his or her sentence has met this inappropriateness standard
of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a
sentence is inappropriate ultimately turns on the culpability of the defendant,
the severity of the crime, the damage done to others, and a myriad of other
factors that come to light in a given case. Cardwell v. State, 895 N.E.2d 1219,
1224 (Ind. 2008).
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 6 of 7 [13] A person who commits a Level 5 felony shall be imprisoned for a fixed term of
between one and six years, with an advisory sentence of three years. Ind. Code
§ 35-50-2-6(b). Here, the trial court sentenced Watts to five years.
[14] We agree with Watts that there is nothing particularly remarkable about the
nature of the offense. Watts broke into McCoy’s detached garage in the middle
of the night and took a bicycle.
[15] But Watts’s character supports his above-advisory sentence. Watts has an
extensive criminal history, including numerous property convictions. He has at
least ten felony convictions and twelve misdemeanor convictions. Most
importantly, he has two burglary convictions—the same conviction as here—
from 2005 and 2008 and was on probation for theft at the time he committed
this offense. He has also violated probation or community corrections multiple
times. As the trial court stated, “our hope as a community, that these prior
attempts at rehabilitation would’ve convinced you that you need to change your
decisions. And at 43 years of age, I’m afraid that you’ve not gotten that
message.” Tr. Vol. II p. 67. Although Watts has health issues and takes care of
his elderly grandmother, he has not taken advantage of the opportunities he has
been given. He has failed to persuade us that his five-year sentence is
inappropriate.
[16] Affirmed.
Bailey, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017 Page 7 of 7