MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 17 2020, 9:19 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 Jeffery Haupt Curtis T. Hill, Jr. Law Office of Jeffery Haupt Attorney General of Indiana South Bend, Indiana Zachary R. Griffin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Lloyd Dunn, II, March 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1794 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Margot F. Reagan, Appellee-Plaintiff. Judge The Honorable Julie Verheye, Magistrate Trial Court Cause No. 71D04-1812-CM-4299
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 1 of 7 Statement of the Case
[1] Following a bench trial, John Lloyd Dunn (“Dunn”) was found guilty of Class
A misdemeanor theft.1 On appeal, Dunn challenges the sufficiency of the
evidence used to convict him. Concluding that the State presented sufficient
evidence, we affirm Dunn’s theft conviction.
[2] We affirm.
Issue
Whether sufficient evidence supports Dunn’s conviction.
Facts
[3] On November 28, 2018, Elaine Sera (“Sera”) looked out of the window of the
doctor’s office where she worked and noticed two individuals walking down the
street in South Bend. One of the individuals was carrying a large “alcoholic
bottle[,]” and they both “appeared to be intoxicated.” (Tr. 4). Sera watched as
the two individuals walked past her office and approached the mailbox of the
home next door. One of the individuals opened the mailbox and removed its
contents. Most of the mail was thrown onto the ground. However, the
individual kept a package that was inside the mailbox. Anthony Sergio
(“Sergio”), who lived in the home next to the doctor’s office, was expecting to
1 IND. CODE § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 2 of 7 receive an “Anker PowerLine II [phone] charging cable” from an order he had
placed with Amazon. (Tr. 7). Sergio had received a notification that his
package had been delivered.
[4] After Sergio received a phone call from Sera informing him of her observations,
he walked outside and found his mail on the ground. Sergio called 911 and
began walking down the street in the direction that the two individuals had
been seen heading. Sergio continued walking until he saw two individuals,
who matched the description Sera had given him, standing on the other side of
the street. Sergio informed the 911 operator of his observation and requested
that the operator send an officer to his location.
[5] South Bend Police Officer Andrew Ream (“Officer Ream”) responded to
Sergio’s call. Officer Ream located the two individuals, later identified as Dunn
and Otis Rowe (“Rowe”). Officer Ream explained to Dunn and Rowe that he
had received a report that property had been taken from a mailbox. Dunn
informed Officer Ream that neither he nor Rowe had stolen any property.
Dunn then advised Officer Ream that he could check his pockets. During this
search, Officer Ream “found a[n] empty box for an Anker brand phone cable.”
(Tr. 11). Officer Ream then asked Dunn if he had a receipt for the item, and
Dunn replied that he did not. Another officer arrived on scene and performed a
search of Rowe, which yielded an Anker PowerLine II phone charging cable
with its zip-up case.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 3 of 7 [6] The State charged Dunn with Class A misdemeanor theft. The trial court
conducted a bench trial, wherein the State called Sera, Sergio, and Officer
Ream to testify to the facts above. After the State rested, Dunn testified that he
and Rowe were walking together on November 28. He explained that he had
been drinking all day and was drunk at the time Sergio’s package was stolen.
Dunn also admitted that he was “the one that had the bottle of wine.” (Tr. 17).
When asked on direct examination how the empty phone charging cable box
got into his pocket, Dunn responded “I don’t know. We were walking next --
maybe [Rowe] put it in my pocket. I don’t know. I didn’t put it in my pocket.”
(Tr. 18).
[7] Thereafter, the trial court found Dunn guilty as charged, stating:
And it was clear from the testimony of Ms. Sera that both people were involved in messing around with the mailbox. So, I’m going to find the defendant guilty. Whether as a principal or as someone who aided and abetted in the offense. It doesn’t matter.
(Tr. 24). The trial court sentenced Dunn to a twenty (20) day suspended
sentence and placed him on probation for 180 days. Dunn now appeals.
Decision
[8] Dunn argues that the State presented insufficient evidence to support his
conviction for Class A misdemeanor theft. Our standard of review for
sufficiency of evidence claims is well-settled. We do not assess the credibility of
the witnesses or reweigh the evidence in determining whether the evidence is
sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 4 of 7 the probative evidence and reasonable inferences supporting the verdict. Id.
Reversal is appropriate only when no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id. The evidence is
not required to overcome every reasonable hypothesis of innocence and is
sufficient if an inference may reasonably be drawn from it to support the
verdict. Id. at 147.
[9] To convict Dunn of Class A misdemeanor theft, the State was required to prove
beyond a reasonable doubt that Dunn “knowingly or intentionally exert[ed]
unauthorized control over property of another person, with intent to deprive the
other person of any part of its value or use[.]” I.C. § 35-43-4-2. Here, the trial
court found that Dunn was guilty of theft as a principal or an accomplice. An
accomplice is any person who knowingly or intentionally aids, induces, or
causes another to commit an offense. I.C. § 35-41-2-4. The factors used to
determine whether a person is an accomplice include: (1) presence at the scene
of the crime; (2) companionship with another at the scene of the crime; (3)
failure to oppose the commission of the crime; and (4) course of conduct before,
during, and after the crime. Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012).
Generally, there is no distinction between the criminal liability of an
accomplice and a principal. Jester v. State, 724 N.E.2d 235, 241 (Ind. 2000).
Evidence that the defendant participated in every element of the underlying
offense is not necessary to convict a defendant as an accomplice. Vitek v. State,
750 N.E.2d 346, 352 (Ind. 2001). Rather,
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 17 2020, 9:19 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 Jeffery Haupt Curtis T. Hill, Jr. Law Office of Jeffery Haupt Attorney General of Indiana South Bend, Indiana Zachary R. Griffin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Lloyd Dunn, II, March 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1794 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Margot F. Reagan, Appellee-Plaintiff. Judge The Honorable Julie Verheye, Magistrate Trial Court Cause No. 71D04-1812-CM-4299
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 1 of 7 Statement of the Case
[1] Following a bench trial, John Lloyd Dunn (“Dunn”) was found guilty of Class
A misdemeanor theft.1 On appeal, Dunn challenges the sufficiency of the
evidence used to convict him. Concluding that the State presented sufficient
evidence, we affirm Dunn’s theft conviction.
[2] We affirm.
Issue
Whether sufficient evidence supports Dunn’s conviction.
Facts
[3] On November 28, 2018, Elaine Sera (“Sera”) looked out of the window of the
doctor’s office where she worked and noticed two individuals walking down the
street in South Bend. One of the individuals was carrying a large “alcoholic
bottle[,]” and they both “appeared to be intoxicated.” (Tr. 4). Sera watched as
the two individuals walked past her office and approached the mailbox of the
home next door. One of the individuals opened the mailbox and removed its
contents. Most of the mail was thrown onto the ground. However, the
individual kept a package that was inside the mailbox. Anthony Sergio
(“Sergio”), who lived in the home next to the doctor’s office, was expecting to
1 IND. CODE § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 2 of 7 receive an “Anker PowerLine II [phone] charging cable” from an order he had
placed with Amazon. (Tr. 7). Sergio had received a notification that his
package had been delivered.
[4] After Sergio received a phone call from Sera informing him of her observations,
he walked outside and found his mail on the ground. Sergio called 911 and
began walking down the street in the direction that the two individuals had
been seen heading. Sergio continued walking until he saw two individuals,
who matched the description Sera had given him, standing on the other side of
the street. Sergio informed the 911 operator of his observation and requested
that the operator send an officer to his location.
[5] South Bend Police Officer Andrew Ream (“Officer Ream”) responded to
Sergio’s call. Officer Ream located the two individuals, later identified as Dunn
and Otis Rowe (“Rowe”). Officer Ream explained to Dunn and Rowe that he
had received a report that property had been taken from a mailbox. Dunn
informed Officer Ream that neither he nor Rowe had stolen any property.
Dunn then advised Officer Ream that he could check his pockets. During this
search, Officer Ream “found a[n] empty box for an Anker brand phone cable.”
(Tr. 11). Officer Ream then asked Dunn if he had a receipt for the item, and
Dunn replied that he did not. Another officer arrived on scene and performed a
search of Rowe, which yielded an Anker PowerLine II phone charging cable
with its zip-up case.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 3 of 7 [6] The State charged Dunn with Class A misdemeanor theft. The trial court
conducted a bench trial, wherein the State called Sera, Sergio, and Officer
Ream to testify to the facts above. After the State rested, Dunn testified that he
and Rowe were walking together on November 28. He explained that he had
been drinking all day and was drunk at the time Sergio’s package was stolen.
Dunn also admitted that he was “the one that had the bottle of wine.” (Tr. 17).
When asked on direct examination how the empty phone charging cable box
got into his pocket, Dunn responded “I don’t know. We were walking next --
maybe [Rowe] put it in my pocket. I don’t know. I didn’t put it in my pocket.”
(Tr. 18).
[7] Thereafter, the trial court found Dunn guilty as charged, stating:
And it was clear from the testimony of Ms. Sera that both people were involved in messing around with the mailbox. So, I’m going to find the defendant guilty. Whether as a principal or as someone who aided and abetted in the offense. It doesn’t matter.
(Tr. 24). The trial court sentenced Dunn to a twenty (20) day suspended
sentence and placed him on probation for 180 days. Dunn now appeals.
Decision
[8] Dunn argues that the State presented insufficient evidence to support his
conviction for Class A misdemeanor theft. Our standard of review for
sufficiency of evidence claims is well-settled. We do not assess the credibility of
the witnesses or reweigh the evidence in determining whether the evidence is
sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 4 of 7 the probative evidence and reasonable inferences supporting the verdict. Id.
Reversal is appropriate only when no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id. The evidence is
not required to overcome every reasonable hypothesis of innocence and is
sufficient if an inference may reasonably be drawn from it to support the
verdict. Id. at 147.
[9] To convict Dunn of Class A misdemeanor theft, the State was required to prove
beyond a reasonable doubt that Dunn “knowingly or intentionally exert[ed]
unauthorized control over property of another person, with intent to deprive the
other person of any part of its value or use[.]” I.C. § 35-43-4-2. Here, the trial
court found that Dunn was guilty of theft as a principal or an accomplice. An
accomplice is any person who knowingly or intentionally aids, induces, or
causes another to commit an offense. I.C. § 35-41-2-4. The factors used to
determine whether a person is an accomplice include: (1) presence at the scene
of the crime; (2) companionship with another at the scene of the crime; (3)
failure to oppose the commission of the crime; and (4) course of conduct before,
during, and after the crime. Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012).
Generally, there is no distinction between the criminal liability of an
accomplice and a principal. Jester v. State, 724 N.E.2d 235, 241 (Ind. 2000).
Evidence that the defendant participated in every element of the underlying
offense is not necessary to convict a defendant as an accomplice. Vitek v. State,
750 N.E.2d 346, 352 (Ind. 2001). Rather,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 5 of 7 [t]here must be evidence [of] affirmative conduct, either in the form of acts or words, from which an inference of a common design or purpose to effect the commission of a crime may be reasonably drawn. Each participant must knowingly or intentionally associate himself with the criminal venture, participate in it, and try to make it succeed. That said, the State need not show that [the accomplice] was a party to the preconceived scheme; it must merely demonstrate concerted action or participation in an illegal act.
Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014) (internal citations
omitted).
[10] Dunn contends that his actions were inconsistent with someone who aided in
the commission of theft because “he offer[ed] his coat to be searched” and did
not take “any sort of actions to conceal Rowe’s or his involvement.” (Dunn’s
Br. 10). We disagree.
[11] Here, the evidence allowed the trial court to reasonably infer that Dunn acted
as an accomplice in the commission of theft. First, it is undisputed that Dunn
was at the scene of the crime with Rowe, evidenced by Dunn’s admission at
trial that he was with Rowe on the day in question. Second, Dunn and Rowe
were companions at the scene. Sera testified that two individuals, one of whom
was holding a large bottle of alcohol and appearing to be intoxicated,
approached Sergio’s mailbox and removed a package, which contained a phone
charging cable. Dunn later admitted that he was “drunk” and was “the one
that had the bottle of wine.” (Tr. 17). Third, after the package was removed,
the two individuals continued walking together down the street. Lastly, after
Officer Ream stopped Dunn and Rowe and explained to them that he had
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 6 of 7 received a report that property had been taken from a mailbox, Dunn stated
that neither he nor Rowe had any stolen property. A subsequent search of
Dunn’s pocket, which he invited Officer Ream to conduct, produced the empty
Anker PowerLine phone charging cable box. The actual phone charging cable
was then recovered from Rowe. Thus, the evidence, and all the favorable
inferences drawn therefrom, demonstrates that Dunn: (1) was present at the
scene of the crime; (2) acted as a companion with Rowe; (3) failed to oppose
the commission of the theft; and (4) took actions to conceal their involvement
by denying that they had any stolen property, while simultaneously possessing
the empty phone charging box in his pocket. Accordingly, Dunn’s argument
that his actions were inconsistent with someone who aided in the commission
of theft must fail, and we affirm his theft conviction.
[12] Affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020 Page 7 of 7