Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 16 2014, 9:52 am 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:
LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana
JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JEREMY DALLAS JENKINS, ) ) Appellant-Defendant, ) ) vs. ) No. 15A01-1405-CR-225 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Jonathan N. Cleary, Judge Cause No. 15D01-1304-FB-14
December 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Following a bench trial, Jeremy Dallas Jenkins appeals his conviction for Class B
felony burglary1 and raises the following two restated issues:
I. Whether the trial court erred when it admitted into evidence police testimony that the victim’s neighbor made a pointing gesture at the ceiling while talking to police; and
II. Whether Jenkins’s sixteen-year sentence is inappropriate.
We affirm.
FACTS AND PROCEDURAL HISTORY
On March 1, 2013, Candida Haney (“Haney”) and her two children, ages two and
four, moved into Apartment 211 of an apartment complex in Lawrenceburg, Indiana. On
the evening of March 26, 2013, Haney entered her apartment, after having been away a
couple of days, to find a number of things were out of place or missing. Her DVD player
had been moved from the television stand and was placed on the arm of her couch, and her
Gateway laptop computer, wireless mouse, and charger were missing. Other items she
later discovered missing were a Hello Kitty brand first aid kit, two sets of necklaces and
earrings purchased from Wal-Mart, a camera, several Victoria’s Secret body sprays, a pack
of Marlboro Lights 100s cigarettes taken from a now-empty carton in her closet, and a
Mickey Mouse watch. Haney also notice that the thermostat in her apartment was set at a
high temperature.
Haney promptly contacted police, and she stayed in her living room until police
arrived at 8:25 p.m. Lawrenceburg Police Department Officer Daniel Rosengarn
1 See Ind. Code § 35-43-2-1(1). We note that, effective July 1, 2014, a new version of this criminal statue was enacted. Because Jenkins committed his crime in 2013, we will apply the statute in effect at that time.
2 responded, gathered information from Haney, and told her to call him later if she found
that any more items were missing or out of place.
Haney worked the third shift at her job, 10:00 p.m. to 6:00 a.m., and as she was
getting ready for work on March 26, she noticed in her closet that the shelving rack,
normally positioned above her hanging clothes, was broken and some articles of clothing
had fallen to the floor. She proceeded to go to work, but she called Officer Rosengarn at
approximately 11:30 p.m. and reported to him that she had found her closet in disarray.
Officer Rosengarn passed on the information to Detective Jeremy Shepherd.
The next morning, after Haney returned home from work, she contacted the
apartment complex’s maintenance manager, Tom Allen, asking him to change the door
locks. Allen came to Haney’s apartment and inspected the door lock, which appeared in
normal working condition. Haney then asked Allen to view her closet. Allen noticed the
broken rack and “somebody’s footprint [] right on it,” and he saw that a small wooden
dresser placed under the rack also was broken. Tr. at 157. The access to the attic was
through the ceiling of Haney’s walk-in closet, and Allen saw insulation on the closet floor
under the access. Allen told her to call police.
Haney made contact with Detective Shepherd, who arrived at Haney’s apartment
shortly thereafter. Detective Shepherd saw the broken shelf in the closet and drywall and
insulation on the floor under the access to the attic in Haney’s closet ceiling. Haney
discussed with him the various missing items and also noticed that a Febreze candle that
had been on top of the refrigerator was now on the closet floor. While police were on the
premises, Allen climbed on a ladder and looked through the attic access to see that the
3 drywall between Haney’s apartment and Apartment 212, next door, had been broken
through, leaving a large hole. After speaking to Allen, Detective Shepherd looked in the
attic and could see that “there was a hole busted into to gain access into another apartment
through the attic.” Id. at 67. The attic space above the four upstairs apartments was divided
by fire walls, such that a person “[could not] get into another one unless you break through
the drywall.” Id. at 80.
Thereafter, Detective Shepherd and another officer made contact with the resident
in Apartment 212, Shawna Henry, who was Jenkins’s wife and the official occupant of the
apartment, although Jenkins stayed at the apartment sometimes to visit his children. Henry
stepped out of her apartment and spoke to Detective Shepherd in the hallway for a few
moments. After that brief conversation, and with her permission, officers entered
Apartment 212. Detective Shepherd noticed on the kitchen counter a pack of Marlboro
Lights 100s cigarettes, the same type as those missing from the carton in Haney’s closet.
Henry accompanied Detective Shepherd to the police department for an interview. Based
upon Henry’s interview with police, combined with what police had seen at the apartment
and in the attic, they believed that Jenkins was in the attic, so officers set up “a perimeter,”
in order to “flush out” Jenkins.2 Id. at 77. Later that day, after other officers arrived at the
scene, including a K-9 officer, Jenkins was apprehended when he emerged from the attic
into Apartment 213, a vacant upstairs apartment.
2 The residents of the upstairs apartments were asked to exit and wait in the parking lot during this time. When asked to leave, the male resident of Apartment 214 told police that he had been asleep in bed earlier that day, when he was awakened to the sound of someone trying to gain access to his apartment through the attic.
4 Officers patted down Jenkins and found a pack of Marlboro Lights 100s cigarettes
believed to be that which Detective Shepherd had seen on the counter when he entered
Apartment 212, and which officers suspected came from the now-empty Marlboro Lights
100s carton in Haney’s closet.3 In the attic, police recovered, among other things, a
backpack, which contained a laptop computer, a black charging cord, and a red computer
mouse, all of which belonged to Haney. Next to the backpack was a black coat, which
belonged to Jenkins. Upon investigation of Henry’s apartment, police located in a laundry
hamper various items belonging to Haney, including the three bottles of Victoria’s Secret
body spray, the Walmart jewelry, and the Hello Kitty first aid kit. Jenkins identified shoes
in Henry’s apartment as being his, and he told police he was staying at Henry’s apartment
at that time, in order to see his children.
The State charged Jenkins with Class B felony burglary, Class D felony theft, and
Class A misdemeanor criminal mischief. At the bench trial, Detective Shepherd testified,
over Jenkins’s hearsay objection, that, while he was speaking to Henry in the hallway
outside of her apartment’s front door, he asked her if she knew anything about the burglary
at the apartment next door, and in response, she made a hand gesture toward the ceiling or
attic area above where they were standing. Thereafter, with Henry’s permission, officers
entered her apartment. With officers later positioned in each of the four upstairs
apartments, they could hear that there was someone going from apartment to apartment in
the attic space, although the only person who possessed permission to go into the attic
3 During the course of the investigation, police learned that neither Jenkins nor Henry smoked Marlboro Lights 100s; Jenkins generally smoked menthols, and his wife, Henry, smoked Marlboro Reds. Tr. at 178.
5 space was Allen.
Allen testified that, at the request of police, he went to Apartment 212 to retrieve
the ladder, when he noticed that the ladder had been moved from where it had been and
that the shower curtain had been pulled shut. He pulled back the shower curtain and found
Jenkins standing there. Allen attempted to take Jenkins to police, but Jenkins retreated
back into the attic. The police K-9 officer was summoned to the scene, with the plan to
send the K-9 into the attic area, but once the K-9 and his partner arrived and were ready to
enter the attic through Apartment 212, Jenkins came out of the attic into Apartment 213.
Sometime after Jenkins was apprehended, Allen returned and inspected the attic space and
found the fire walls between four upstairs apartments – 211, 212, 213, and 214 – had been
damaged. Detective Shepherd found insulation below the ceiling attic access in each of
the four apartments. Tr. at 177.
Detective Shepherd testified that, prior to trial, police actively attempted to locate
Henry to serve a summons to testify at trial, but were unable to locate her. During the
course of those attempts, Detective Shepherd became aware of some recorded jail
telephone calls between Jenkins and his mother, in which Jenkins stated to his mother that
he needed her to keep Henry “occupied” or “away from here” so that Henry would not
appear in court to testify. Id. at 95, State’s Ex. 15. Jenkins’s statements in those taped
those phone calls were admitted at trial. Tr. at 106.
The trial court found Jenkins guilty as charged, but the trial court vacated the theft
and criminal mischief convictions on double jeopardy grounds. At the subsequent
sentencing hearing, the trial court found in aggravation that (1) Jenkins used the attic area
6 to gain access to residents’ homes by “cutting holes” and “moving about” in the attic space
“and then drop into the apartments”; (2) Jenkins called his mother from jail and attempted
to obtain her help in keeping witnesses from testifying at his trial; (3) Jenkins has an
extensive criminal history, including four felonies and six misdemeanors; (4) Haney and
her two young children no longer feel safe in their home. Id. at 235, 238. In mitigation, it
found that (1) Jenkins has two young children; (2) he suffers from seizures; and (3) he
waived a jury trial and saved resources and expense. Thereafter, the trial court sentenced
Jenkins to sixteen years of incarceration for the Class B burglary conviction. Jenkins now
appeals.
DISCUSSION AND DECISION
I. Hearsay
Jenkins argues that the trial court erred when it permitted into evidence, over his
objection, Detective Shepherd’s testimony that Henry pointed to the attic when he was
speaking with her in the hallway outside her apartment. Jenkins claims that this gesture
constituted hearsay and was inadmissible. The trial court’s discretion to admit or exclude
evidence is broad, and it will not be reversed absent an abuse of that discretion. Sandefur
v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011). The trial court abuses its discretion if
its evidentiary ruling is clearly against the logic, facts, and circumstances before it. Id.
As a general rule, hearsay evidence is inadmissible. Ind. Evidence Rule 802.4
Hearsay is defined as an out-of-court statement offered in court to prove the truth of the
4 Indiana’s evidence rule were slightly re-worded effective January 1, 2014, but the changes affect only style and not substance.
7 matter asserted. Ind. Evid. R. 801(c). A “statement” is defined as (1) an oral or written
assertion, or (2) nonverbal conduct of a person, if it is intended by the person as an
assertion. Evid. R. 801(a); Pritchard v. State, 810 N.E.2d 758, 760 (Ind. Ct. App. 2004).
To be an assertion, a statement must allege a fact susceptible of being true or false.
Pritchard, 810 N.E.2d at 760.
The statement that Jenkins challenges is the police officer’s testimony that described
Henry’s nonverbal gesture of pointing to the ceiling or attic area after he asked her if she
knew anything about the burglary that had occurred in her next-door neighbor’s apartment.
The State maintains that the gesture was not hearsay and was an observation that the officer
made, admitted to describe the course of the police investigation. When the admissibility
of an out-of-court statement received by a police officer during the course of an
investigation is challenged as hearsay, we first determine whether the testimony describes
an out-of-court statement that asserts a fact susceptible of being true or false. Corbally v.
State, 5 N.E.3d 463, 469-70 (Ind. Ct. App. 2014); Vertner v. State, 793 N.E.2d 1148, 1151
(Ind. Ct. App. 2003). If the statement contains no such assertion, it cannot be hearsay and
the objection should be overruled. Stewart v. State, 945 N.E.2d 1277, 1287 (Ind. Ct. App.
2011). If the statement does contain an assertion of fact, we consider the evidentiary
purpose of the proffered statement. Id. If it is to prove the truth of the matter asserted,
then it is inadmissible as hearsay unless there is an applicable exception. Id. On the other
hand, if the statement is offered for a purpose other than to prove the truth of the matter
asserted, “courts must consider whether the fact to be proved is relevant to some issue in
the case and whether the danger of unfair prejudice that may result from its admission
8 outweighs its probative value.” Corbally, 5 N.E.3d at 470. We are cognizant of the fact
that, sometimes, Indiana courts have viewed the State’s efforts to introduce police officer
testimony relating to out-of-court statements “under the guise of ‘course-of-investigation’
evidence” with skepticism due to the possibility of its misuse, but we find no misuse or
error in the present case. Id.
Over Jenkins’s hearsay objection, the trial court admitted the evidence that, while
speaking to officers in the hallway outside of her apartment, Henry “pointed to the upstairs,
the attic area[.]” Tr. at 73. The Detective’s statement was not offered to prove the truth of
the matter asserted, nor was it a statement that alleged a fact susceptible of being true or
false. Henry’s gesture did not identify Jenkins as the perpetrator. Rather, the Detective’s
testimony concerning Henry’s pointing gesture explained the subsequent conduct of the
police officers, i.e., their investigation of the attic of the apartment building to ascertain or
apprehend a suspect. We find that the trial court properly concluded the gesture was not
hearsay and was admissible. Compare Sandefur, 945 N.E.2d at 788 (officer’s testimony
that victim had mouthed words “he hit me” to officer was offered to prove truth of matter
asserted, namely that Sandefur had hit victim, and constituted hearsay, although ultimately
admissible under excited utterance exception).
Even if Detective Shepherd’s testimony may be characterized as hearsay, its
admission was harmless error. When reviewing whether the erroneous introduction of
evidence was harmless, we must consider whether the evidence was likely to have
substantially swayed the jury’s verdict. Corbally, 5 N.E.3d at 470. The improper
admission of evidence is harmless error if we are satisfied that the conviction is supported
9 by such substantial independent evidence of guilt that there is little likelihood the
challenged evidence contributed to the conviction. Id. In this case, before Detective
Shepherd went to speak to the occupant of Apartment 212, Haney, Allen, and Detective
Shepherd each observed insulation scattered on floor of Haney’s closet, directly under the
ceiling access to the attic. There was a footprint on Haney’s closet rack, now broken,
indicating someone had climbed in and out of her attic using it as a step. When Allen, and
later Detective Shepherd, looked into the attic from Haney’s closet access, each of them
observed that a hole had been punched through the drywall that divided the attic space
above Haney’s Apartment 211 and the apartment next door, Apartment 212. Thus, the
genesis of the investigation of the attic was not based solely on any pointing gesture made
by Henry to Detective Shepherd. Indeed, plenty of other evidence indicated that whoever
had entered Haney’s apartment did so via her attic access in her closet and that someone
had broken through the firewall dividing the apartments in the attic space. It was after
making the discovery of the hole in the attic drywall leading to Apartment 212 that
Detective Shepherd knocked on the door of Apartment 212 and spoke to Henry. More
police officers were called to the scene, and they heard someone running back and forth in
the attic area. At one point, Allen discovered Jenkins hiding in the shower behind a closed
curtain in Apartment 212. Although Allen tried to persuade Jenkins to speak with police,
Jenkins climbed into the attic, and he re-appeared when a K-9 officer arrived on the scene
and prepared to enter the attic. Once officers entered the attic, they found Jenkins’s coat
and a backpack containing items belongings to Haney, and they found in Henry’s
apartment, where Jenkins was staying, more items belonging to Haney. We are satisfied
10 that Jenkins’s burglary conviction is supported by such substantial independent evidence
of guilt that there is little likelihood the challenged evidence contributed to the conviction.
The trial court did not err in admitting Detective Shepherd’s testimony.
II. Sentencing
Jenkins claims that his sixteen-year sentence is inappropriate. Under Indiana
Appellate Rule 7(B), 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 offender.” The question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the
question is whether the sentence imposed in inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008) (emphasis in original). In performing our review, we assess “the
culpability of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008). We understand and recognize the unique perspective a trial court
brings to its sentencing decisions. Corbally, 5 N.E.3d at 471. It is the defendant’s burden
on appeal to persuade the reviewing court that the sentence imposed by the trial court is
inappropriate. Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
For his Class B felony burglary conviction, Jenkins faced a sentencing range of six
years to twenty years, with the advisory sentence being ten years. See Ind. Code § 35-50-
2-5.; Hall v. State, 944 N.E.2d 538, 541 (Ind. Ct. App. 2011), trans. denied. Here, the trial
court sentenced Jenkins to sixteen years. Jenkins asks us to revise his sentence to the ten-
year advisory term, suggesting that would fit the circumstances of his offense where he
11 “snuck into an unoccupied apartment and took a laptop and items of small pecuniary value”
and “[n]o one was injured and the items were all returned, undamaged.” Appellant’s Br.
at 14.
With regard to the nature of the offense, we disagree with Jenkins’s characterization
of the apartment as being “unoccupied.” Haney and her two small children resided there,
having just moved in weeks prior, and to that extent, the apartment was indeed occupied,
with the occupants simply being not at home when Jenkins snuck into Haney’s apartment
and took a number of her possessions. As the trial court found in aggravation, Jenkins’s
conduct effectively robbed Haney and her children of a feeling of safety and security in
their home. The trial court also recognized the covert manner of entry into Haney’s
apartment, through the attic access in her bedroom closet, and that the evidence further
showed that Jenkins had been “moving about” in the attic and “dropping into” other
apartments in this same fashion, all of which added to the culpability and severity of the
nature of the offense. Tr. at 235, 238. Jenkins has failed to persuade us that the nature of
the offense warrants revision of his sentence.
Moving next to the question of character, evidence at trial established that on at least
several occasions Jenkins, in recorded telephone calls from jail, tried to prevent witnesses
from testifying at his trial. This obviously reflects poorly on his character. His criminal
history, which the trial court considered “significant,” likewise does not reflect positively
on his character. Id. at 238. By age thirty-four, Jenkins had amassed four felony
convictions, six misdemeanor convictions, and four probation violations. Jenkins suggests
that we should reduce his sentence because he is “a drug addict capable of redemption.”
12 Appellant’s Br. at 13. As the State observed, Jenkins never fully acknowledged having a
substance abuse problem. The probation officer’s report in the presentence investigation
report indicated that Jenkins denied any addiction; at sentencing, Jenkins conceded that he
“had involvement” with marijuana and continued, “I’ve dabbled in other things, but prefer
not to go into it.” Tr. at 212. There is no indication in the record that Jenkins ever sought
treatment. His character does not demonstrate that his sixteen-year sentence was
inappropriate. Jenkins has failed to persuade us that the sixteen-year sentence is
inappropriate in light of the nature of the offense and the character of the offender.
Affirmed.5
BAKER, J., and ROBB, J., concur.
5 Although aggravating or mitigating circumstances generally are not independently addressed in an inappropriate sentence analysis, we nevertheless wish to note that, here, the trial court identified as a mitigator that Jenkins waived his right to a jury trial. While Indiana courts have recognized that defendants who plead guilty deserve “some” mitigating weight be given to the plea, our colleague Judge Bradford determined, and we agree, that waiver of right to a jury trial is not analogous to a guilty plea. McSchooler v. State, 15 N.E.3d 678, 685 (Ind. Ct. App. 2014) (citing Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218, 220 (Ind. 2007)). “Although the State is saved some expense in both circumstances, a guilty plea often demonstrates a defendant’s acceptance of responsibility, whereas waiver of jury trial does not.” Id.; see also Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005) (guilty plea is not considered significant mitigating factor solely because it saves time and expense, as it must also demonstrate defendant’s acceptance of responsibility for the crime). Judge Bradford concluded that “in some cases” it may be appropriate to accord waiver of jury trial mitigating weight, but McSchooler had failed to establish it in his case. McSchooler, 15 N.E.3d at 685. While we agree with Judge Bradford’s conclusion that a guilty plea and waiver of jury trial are not analogous, we are troubled by the proposition that waiver of one’s right to trial by jury ever might be considered a valid mitigating factor. We find that doing so could amount to an inducement to waive a fundamental constitutional right, as well as bring into question whether the waiver was voluntarily made. See e.g., People v. Dixon, 63 Cal. Rptr. 637, 644 (Cal. Ct. App. 2007) (recognizing trial court’s pre-trial statement to defendant that waiver of jury trial would be considered a mitigating factor at sentencing was “an improper promise of a benefit for waiving a fundamental constitutional right”), review denied. Accordingly, we caution trial courts about considering waiver of right to trial by jury as a mitigator.