MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 26 2018, 7:47 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gary Whittington, Jr., April 26, 2018
Appellant-Defendant, Court of Appeals Case No. 82A01-1708-CR-1808 v. Appeal from the Vanderburgh Circuit Court. State of Indiana, The Honorable Michael J. Cox, Magistrate. Appellee-Plaintiff. Trial Court Cause No. 82C01-1701-F3-361
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 1 of 14 Statement of the Case [1] Gary Whittington, Jr., appeals his convictions of three counts of Level 5 felony 1 2 robbery, three counts of Level 5 felony criminal confinement, burglary as a 3 4 Level 4 felony, theft of a firearm as a Level 6 felony, and auto theft as a Level 5 6 6 felony. He also pleaded guilty to an habitual offender enhancement. He
alleges that there is insufficient evidence of a breaking to support his burglary
conviction, and that the trial court committed fundamental error when it
admitted certain testimony at trial. We affirm.
Issues [2] Whittington raises two issues for our review:
I. Whether the State presented sufficient evidence to sustain his burglary conviction; and II. Whether the trial court committed fundamental error in admitting certain testimony at trial.
1 Ind. Code § 35-42-5-1(1) (2014). 2 Ind. Code § 35-42-3-3 (2014). 3 Ind. Code § 35-43-2-1 (2014). 4 Ind. Code § 35-43-4-2 (2014). 5 Ind. Code § 35-43-4-2.5 (2014). 6 Ind. Code § 35-50-2-8 (2015).
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 2 of 14 Facts and Procedural History [3] Henry Doyle, who worked for Professional Transportation Incorporated (PTI),
was driving a company-issued van used to transport railroad crews to trains.
The van was equipped with a GPS unit and a drive camera. On January 16,
2017, around 6:30 p.m., Doyle transported Edward Fogarty and Robert Jones,
two CSX Transportation employees, to an area just outside of a railroad yard
located in Evansville, Indiana, so that the two could board a train. Doyle
parked the van to wait for the train. The van was parked for about ten minutes
when Jones, who was sitting in the front passenger seat, saw the barrel of a rifle
tap on the window.
[4] Doyle, Jones, and Fogarty were ordered by two men to exit the van. One man,
later identified as Whittington, was armed with an assault rifle. The other man,
later identified as Whittington’s twenty-one-year-old son, was wearing a mask
and appeared to be armed with a handgun. Whittington told Doyle, Jones, and
Fogarty to put their identification and hands on the hood of the van and then
took their identification, wallets, and cell phones. Whittington then told the
men, “[I]t’s your lucky day, I’m going to let you live,” and ordered them to
walk along the railroad tracks. Tr. Vol. II, p. 146.
[5] Doyle, Jones, and Fogarty complied; however, once they saw the van drive off,
they turned around and walked to a nearby house to seek assistance. The
homeowners called 911, and deputies from the Vanderburgh County Sheriff’s
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 3 of 14 Department (“VCSD”) responded at around 6:50 p.m. The three men were
transported to the VCSD to give statements.
[6] Glen Smith owned a lawn care business in Evansville, and the business was
located on the same property as his residence. An exterior door led from the
driveway into Smith’s garage. A nearby second, interior door separated the
garage from the kitchen. Smith kept the interior door locked, but did not lock
the exterior door.
[7] At around 1:30 a.m., on January 17, 2017, Smith was sleeping in a recliner in
his living room because he recently had undergone shoulder surgery. His wife
was asleep in the bedroom. Both Smith and his wife woke to a loud noise that
was followed by three loud banging sounds. Smith turned on the lights and saw
two figures in the garage. He started yelling “get out of here, call 911, get out of
here, call 911.” Id. at 187. Smith then called 911. He noticed that the glass
window in the interior door between the garage and the kitchen was broken but
that the exterior door to the garage was closed. Smith’s wife testified that the
exterior door would have been closed that night because it was January.
[8] VCSD deputies arrived approximately eleven minutes after the 911 call was
placed, but the two individuals in the garage had already fled. The Smiths
discovered that a .22 caliber rifle was stolen from their garage, and a hunting
crossbow had been moved to a different location in the garage. Smith told the
deputies that he had surveillance cameras located on his property. Surveillance
video showed a PTI van entering the Smiths’ property and parking and two
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 4 of 14 individuals exiting the van – one armed with a rifle. The video also showed the
same van leaving the property.
[9] Whittington was a former employee of Smith’s lawn care business from
September of 2012 until June of 2015. He left his employment after a dispute
with Smith. Two current employees of the lawn care business watched the
January 17th surveillance video and identified Whittington as one of the
individuals in the footage.
[10] On the evening of January 17, 2017, Whittington and his son were arrested at
the home of Whittington’s mother. Whittington’s mother gave permission for
her home to be searched. A black backpack and black cargo pants were found
in the basement. Inside the backpack, which was searched after obtaining a
search warrant, were rubber gloves, a black eye patch, a leather holster without
a gun, and a cigarette lighter that resembled a gun.
[11] Whittington’s son told law enforcement where the PTI van was located and
helped law enforcement locate the .22 caliber rifle that was taken from the
Smiths’ garage. The drive camera that was installed in the van and the GPS
unit were recovered. Whittington was depicted on the drive camera footage.
Jones, one of the victims of the robbery, was shown a photographic lineup and
positively identified Whittington as the individual that robbed the group at
gunpoint and pointed a rifle at him.
[12] On January 20, 2017, the State charged Whittington with three counts of Level
3 felony armed robbery, three counts of Level 3 felony criminal confinement,
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 5 of 14 Level 4 felony burglary, Level 6 felony theft of a firearm with a sentencing
enhancement based on his use of a firearm, Level 6 felony auto theft, and an
habitual offender enhancement.
[13] A jury trial was held on May 22 through May 25, 2017. At trial, Whittington’s
son testified that he and Whittington stole the PTI van and that Whittington
drove the van to the Smiths’ home; that it was Whittington’s idea to break into
the Smiths’ home to take money; and that while it was Whittington’s idea to
steal the van and break into the home, Whittington’s son was a willing
participant.
[14] A jury found Whittington guilty of three counts of Level 5 felony robbery, three
counts of Level 6 felony criminal confinement, Level 4 felony burglary, Level 6
felony theft of a firearm, and Level 6 felony auto theft. Whittington pleaded
guilty to the habitual offender enhancement, and the State dismissed the firearm
enhancement. The trial court sentenced Whittington to seven years for his
Level 5 felony robbery convictions, two and one-half years for his Level 6
felony criminal confinement convictions, twenty-six years for his Level 4
burglary conviction with the habitual offender enhancement, one year for his
Level 6 felony theft of a firearm conviction, and one year for his Level 6 felony
auto theft conviction. The sentences were to run concurrently for an aggregate
term of twenty-six years. Whittington now appeals.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 6 of 14 Discussion and Decision I. Sufficiency of the Evidence
[15] Whittington first argues there was insufficient evidence to support his
conviction for Level 4 felony burglary. Our standard of review for sufficiency
of the evidence is well settled. On a challenge to the sufficiency of evidence to
support a conviction, a reviewing court does not reweigh the evidence or judge
the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). This Court respects the jury’s exclusive province to weigh conflicting
evidence. Id. It considers only the evidence most favorable to the verdict. Id.
This Court must affirm if the evidence and reasonable inferences drawn from
the evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. Id.
[16] In order to convict Whittington of Level 4 felony burglary, the State was
required to prove beyond a reasonable doubt that he broke and entered a
building or structure that is a dwelling of another person with the intent to
commit a felony or theft in it. Ind. Code § 35-43-2-1(1) (2014). According to
Whittington, the State failed to present evidence of a “breaking.” Whittington
specifically argues the State failed to present evidence of how he and his son
entered the Smiths’ garage, and evidence that Whittington actually “entered”
the Smiths’ kitchen.
[17] Our supreme court has held that walking through an open door does not
establish “breaking”; however, breaking is established when even the slightest
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 7 of 14 force is used to gain unauthorized entry, such as opening an unlocked door.
See Cockerham v. State, 246 Ind. 303, 307, 204 N.E.2d 654, 657 (1965); Smith v.
State, 535 N.E.2d 117, 118 (Ind. 1989) (citing Trice v. State, 490 N.E.2d 757,
758-59 (Ind. 1986)). The element of breaking may be proved entirely by
circumstantial evidence. Utley v. State, 589 N.E.2d 232, 240-41 (Ind. 1992).
[18] We find from the evidence presented at trial, the jury could reasonably have
inferred that Whittington and his son opened the unlocked, exterior door to the
Smiths’ garage and then entered. Smith’s wife testified that the exterior door
would have been closed because it was January at the time the incident took
place. The garage did contain a window; however, evidence was presented
showing that on the night of the incident, the window was closed and a potted
plant located in the garage, just inside of the window, had not been knocked
over. Whittington’s son testified that he and his father entered the Smiths’
garage and waited in the garage for the Smiths to go to sleep and that
Whittington eventually took the butt of his rifle and smashed the window of the
interior door that separated the Smiths’ garage from their kitchen. Smith’s wife
testified that the deadbolt in the interior door was in the “unlock position,” but
previously had been in a locked position. Tr. Vol. II, p. 171. Whether the State
presented evidence that Whittington actually “entered” the Smiths’ kitchen
from the garage is of no moment, as sufficient evidence was presented to
establish Whittington broke and entered the Smiths’ garage.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 8 of 14 II. Character Evidence
[19] Whittington asserts fundamental error occurred when the trial court admitted
testimony from two witnesses recounting Whittington’s statements when he
quit his job with Smith’s lawn care business. We typically review rulings on the
admission of evidence for an abuse of discretion. Pavlovich v. State, 6 N.E.3d
969, 975 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs if the
trial court misinterpreted the law or if its decision was clearly against the logic
and effect of the facts and circumstances before it. Id.
[20] Whittington, however, did not object at trial to the testimony he now challenges
on appeal. Failure to object at trial waives the issue on review unless
fundamental error occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013).
Fundamental error is an extremely narrow exception that applies only when the
error amounts to a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental
due process. Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The claimed
error must be so prejudicial to the rights of a defendant as to make a fair trial
impossible. Taylor v. State, 717 N.E.2d 90, 93 (Ind. 1999). “This exception is
available only in egregious circumstances.” Halliburton, 1 N.E.3d at 678
(internal quotation marks omitted).
[21] Specifically, Whittington challenges the following testimony from Smith, his
former boss, regarding statements Whittington made when he quit:
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 9 of 14 [Whittington] didn’t get demoted, he didn’t get a pay raise, at the time he was making $15 an hour for me. He proceeded then to tell me that all I do is F all my employees and take advantage of them, I’m the rich white guy up on the hill, F’g all his employees, and at that time I told him it was time for him to leave. He kept yelling and I had to threaten that I was going to call 911 if he didn’t leave, and as he was leaving he was like, just give my paycheck to, I forget who he said, so and so, I don’t need the money, they need it more because all you do is F your employees.
Tr. Vol. II, p. 193. He also challenges the following testimony elicited from
Russell Alvey, one of Smith’s employees, when the State asked Alvey if he
recalled the day Whittington quit the lawn care business:
Yes, that morning he came to work and he came in the office and he sat down and basically said he wanted to talk to me and Glen and he had asked for a, he had told us that he thought he deserved a $2 an hour raise and we denied that, and he stood up and he said, well consider today my last day or my two weeks [sic] notice, and he walked out of the office and then he turned around and walked right back in and he said, you know what, today is my last day, I quit, and walked out of the office and started calling the owner of the company several names and walked out of the shop, handed another employee $300 and said, you deserve this because you’re not going to make that kind of money working for this guy, and basically we had to ask him to get off the property before we called the law.
Id. at 244. Whittington claims the testimony was inadmissible character
evidence barred by Indiana Evidence Rule 404(a). According to Whittington,
the testimony “clearly painted Whittington as a criminal with an explosive,
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 10 of 14 unpredictable, and violent personality” and that commission of the instant
offenses was consistent with that character. Appellant’s Br. p. 18.
[22] Indiana Evidence Rule 404(a) prohibits using evidence of a defendant’s
“character or character trait . . . to prove that on a particular occasion the
person acted in accordance with that character or trait.” This rule is meant to
deter a jury from pursuing a path of reasoning that leads to “the forbidden
inference,” which is that a defendant is guilty of the alleged crime because the
defendant possesses a bad character trait. Herrera v. State, 710 N.E.2d 931, 935
(Ind. Ct. App. 1999).
[23] In support of his arguments, Whittington equates his case to Oldham v.
State, 779 N.E.2d 1162 (Ind. Ct. App. 2002), trans. denied. Oldham was
convicted of murder and carrying a handgun without a license. At trial, the
State introduced novelty photos of Oldham with text reading, “America’s Most
Wanted,” “Wanted for: robbery, assault, arson, jaywalking,” “Considered
armed and dangerous,” and “Approach with extreme caution.” Id. at 1171.
On appeal, Oldham asserted the admission of that evidence was fundamental
error that prejudiced the jury against him.
[24] The State argued it had introduced the evidence to prove a shirt in the
proximity of those pictures was Oldham’s shirt, but we determined the State
was using the photographs to suggest Oldham was dangerous. Because the
manner in which the State introduced the evidence suggested Oldham had the
characteristics of one who would have guns and kill another person, its
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 11 of 14 introduction would require Oldham to refute not only the charged crimes but
also the character evidence. Id. at 1173. As such, we found the admission of
the evidence was fundamental error. Id. at 1174.
[25] Whittington also relies on Rhodes v. State, 771 N.E.2d 1246 (Ind. Ct. App.
2002), trans. denied. In Rhodes, this court concluded that the “introduction of
improper character evidence was so blatant and so pervasive that it rendered a
fair trial impossible” because the State introduced a “flood” of irrelevant
character evidence at trial. 771 N.E.2d at 1256. In reaching this conclusion,
we noted as follows:
[the State’s] case in chief seemed to be a focused inquiry into [defendant]’s and [defense witness]’s prior misconduct. From inquiries into [defendant]’s driving convictions, alcohol problems, and history of domestic violence to questions concerning the legitimacy of [defendant] and [defense witness]’s child and the circumstances surrounding [defense witness]’s divorce, the Prosecution made a trial about a driving violation into one about [defendant]’s and [defense witness]’s character.
Id. We concluded that the admission of the “flood” of irrelevant character
evidence constituted fundamental error. Our conclusion, however, was not
based solely upon the admission of the defendant’s driving record, but rather on
the “flood of irrelevant and prejudicial evidence” that “did not just make a fair
trial unlikely, it made it impossible.” Id.
[26] Here, the testimony regarding statements made when Whittington quit his
employment was relevant, and there was no flood of irrelevant character
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 12 of 14 evidence. Thus, Oldham and Rhodes are distinguishable. The testimony was not
offered to prove Whittington acted in accordance with his character but instead
was offered under Indiana Evidence Rule 404(b) to prove motive for targeting 7 Smith’s house for burglary. Pre-trial, the State filed a notice of Indiana
Evidence Rule 404(b) evidence, indicating that it intended to introduce
evidence regarding Whittington’s resignation from his employment with Smith.
Additionally, defense counsel elicited testimony at trial that Whittington was a
good employee and that, at one point, Smith “probably” would have rehired
Whittington if Whittington had asked. Tr. Vol. II, p. 208. Furthermore, the
evidence against Whittington was overwhelming, and the admission of the
404(b) testimony had no prejudicial impact on the jury. The admission of the
testimony was not fundamental error.
Conclusion [27] Sufficient evidence was presented to support Whittington’s conviction for
burglary, and the admission of the challenged testimony was not fundamental
error. The judgment of the trial court is affirmed.
[28] Affirmed.
7 Indiana Evidence Rule 404(b) prohibits the use of a defendant’s “crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character”; however, the evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 13 of 14 May, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018 Page 14 of 14