John S. Ensign v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2019
• Docket: 18A-CR-1784
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 21 2019, 8:36 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Worthley Curtis T. Hill, Jr. Worthley Law LLC Attorney General of Indiana Valparaiso, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John S. Ensign, February 21, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1784 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Mary R. Harper, Appellee-Plaintiff. Judge Trial Court Cause No. 64D05-1601-F5-501

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 1 of 12 [1] John S. Ensign appeals his convictions for two counts of burglary as level 5

felonies and theft as a level 6 felony. Ensign raises two issues which we revise

and restate as:

I. Whether the evidence is sufficient to sustain his convictions; and

II. Whether his sentence is inappropriate in light of the nature of the offenses and the character of the offender.

We affirm.

Facts and Procedural History

[2] In the early morning of April 21, 2015, Ensign drove Sean Kellen to a location

on 750 West in Porter County, Indiana, and parked his vehicle on the street.

The two men went into a barn belonging to William LaFever using a door

which was closed but unlocked and took a television, a Lincoln welder,

surveying equipment and tripod, impact wrenches and sockets, and other items.

The two men then went into a detached garage belonging to Jeffrey Boyd, who

was LaFever’s neighbor, using a door which was closed with a hasp but

unlocked and took Husqvarna chainsaws, an Echo weed trimmer, and a leaf

blower. Ensign and Kellen then went to a vehicle parked in a driveway

belonging to Michael Arnn, who lived near LaFever and Boyd, and took three

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 2 of 12 paintball markers. 1 Ensign and Kellen loaded the items into Ensign’s vehicle,

and Ensign drove to a hotel where Kellen was living.

[3] Ensign and Kellen took the items to a resale shop in Lake Station, Indiana,

owned by Jack Mohoi. According to Mohoi and his girlfriend, Mohoi

negotiated with Ensign, and Kellen did not say much. Ensign and Kellen

initially asked for $5,000 but eventually accepted $500 for some of the items.

Kellen signed a receipt but signed another person’s name. A surveillance video

recording showing the interior of Mohoi’s store depicts Ensign and Kellen

interacting with Mohio. Ensign and Kellen left together and split the $500

equally. Mohoi posted some of the items he purchased on Craigslist.

[4] LaFever noticed there was mud on the floor of his detached garage which is

about ten feet from his back door. Later, while he was at work, his wife called

him and said that a door to the vehicle she drives was open, LaFever called his

father who lived next door and asked him to check the barn which is a couple

hundred feet from the house, his father did so and reported that a television and

a Lincoln welder were missing, and LaFever contacted the police. LaFever

learned from Boyd that he was missing some Husqvarna chainsaws and an

Echo weed trimmer. Later, LaFever noticed that some of the items missing

from his and Boyd’s properties were for sale on Craigslist by Mohoi’s resale

shop. Mohoi and his girlfriend later identified Ensign and Kellen from photo

1 Arnn testified “We don’t like to classify them as guns. We like to call them by what they’re actually called is markers.” Transcript Volume I at 74.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 3 of 12 arrays. Kellen was later arrested on an unrelated matter. Ensign told police

that he never sold anything to Mohoi but also confirmed that he was the person

in the surveillance video.

[5] The State charged Ensign as amended with Count I, burglary of a building

belonging to LaFever as a level 5 felony; Count II, burglary of a building

belonging to Boyd as a level 5 felony; and Count III, theft of property belonging

to Arnn as a level 6 felony. The jury heard testimony from LaFever, Boyd,

Arnn, Mohoi, Mohoi’s girlfriend, Kellen, and a detective, and a portion of the

surveillance video recording was played for the jury. LaFever testified that he

had a detached garage which was located about ten feet from the back door to

his house, that he had a barn which was located a couple hundred feet from the

house, that he first noticed mud on the garage floor, and that he later learned

that items had been taken from his barn. Arnn testified that he noticed that his

three paintball markers were missing and that he saw just one set of footprints

from the driveway to the road.

[6] Kellen testified that he and Ensign went in a barn where they took a television,

welder, and tools, and when asked if he knew who went in first, he answered

“[w]e both went in.” Transcript Volume I at 149. When asked if he recalled

who went to the vehicle in a driveway, Kellen testified “[w]e both did.” Id. at

151. On cross-examination by Ensign’s counsel, Kellen indicated that in April

2015 he used heroin daily, that his girlfriend did not make much at her job, and

that they lived in a hotel. Kellen further indicated that he had been arrested for

a separate burglary in November 2015; he knew he was a suspect and could be

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 4 of 12 charged in this case; he pled guilty in this case; his criminal history includes

crimes that would indicate dishonesty; he decided it was in his best interest to

talk to the detective and the fact that he could place at least some blame on

somebody else could weigh in his favor; and after April 21, 2015, he and Ensign

had a falling out resulting in a physical confrontation. He indicated that his

plea agreement resolved both this case and the unrelated burglary and called for

a cap of six years, he received an executed sentence of five years, he received

significantly less time than he was facing, the State agreed not to file an habitual

offender enhancement, and that it did pay off to cooperate with the detective.

The State also presented the testimony of a detective who obtained a warrant

for Ensign’s cell phone records and learned that Ensign had called Mohoi’s

phone just prior to entering the resale store and later that day called a phone

number associated with Kellen.

[7] The jury found Ensign guilty on all three counts. The probation officer who

prepared the presentence investigation report (the “PSI”) recommended that

Ensign be sentenced to six years on Counts I and II and to two years on Count

III and that the sentences in Counts I and II be served consecutive to the

sentence in Count III for a total of eight years in the Department of Correction

(“DOC”). In its sentencing order, the court found that aggravators included

Ensign’s criminal history, his violation of probation, and that he was charged

with new criminal conduct while on bond. It found as a mitigator that Ensign

had made or will make restitution; noted that the Indiana risk assessment

system tool (“IRAS”) placed Ensign in the very high risk to reoffend category;

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 5 of 12 and sentenced him to six years for his level 5 felonies under Counts I and II and

two years and 182 days for his level 6 felony under Count III to be served

concurrently.

Discussion

I.

[8] The first issue is whether the evidence is sufficient to sustain Ensign’s

convictions. When reviewing claims of insufficiency of the evidence, we do not

reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the evidence and the

reasonable inferences therefrom that support the verdict. Id. The conviction

will be affirmed if there exists evidence of probative value from which a

reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

[9] Ensign argues that there is no forensic evidence linking him to the vehicle,

garage, or barn and no witness was present to corroborate Kellen’s version of

events. He asserts that Kellen’s version of events was manufactured and his

criminal history shows a propensity to lie, Kellen was a daily heroin user, and

“[c]oupling the propensity to lie with the substantial motivation, the testimony

provided by Mr. Kellen is incredibly dubious.” Appellant’s Brief at 10. He also

argues that, although Kellen testified that he and Ensign entered the vehicle

together when the paintball markers were removed, the vehicle owner testified

that he saw one set of footprints from the car to the road, that the owner of the

detached garage noticed mud on his garage floor, and that therefore Kellen’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 6 of 12 version of events placing Ensign inside the detached garage and the barn were

clearly erroneous.

[10] The State maintains the incredible dubiosity rule is inapplicable because Kellen

was not the sole witness, Mohoi and his girlfriend saw Ensign in possession of

the stolen property, the victims of the offenses provided testimony about the

items taken, and it presented the surveillance video. It argues there was nothing

impossible or improbable about Kellen’s testimony, that Ensign is merely

attempting to attack Kellen’s credibility as a witness, and that his arguments

amount to a request to reweigh the evidence and judge the credibility of the

witnesses.

[11] Ind. Code § 35-43-2-1 provides that a person who breaks and enters the building

or structure of another person with intent to commit a felony or theft in it

commits burglary as a level 5 felony. Ind. Code § 35-43-4-2 provides that a

person who knowingly or intentionally exerts unauthorized control over

property of another person, with intent to deprive the other person of any part

of its value or use, commits theft and that the offense is a level 6 felony if the

value of the property is at least $750 and less than $50,000.

[12] We observe that the uncorroborated testimony of one witness is sufficient to

sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).

To the extent Ensign asserts that the incredible dubiosity rule requires reversal

of his conviction, we note that this rule applies only in very narrow

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 7 of 12 circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is

expressed as follows:

If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.

Id. (citations omitted).

[13] Ensign fails to show that Kellen’s testimony was inherently contradictory or so

inherently improbable that no reasonable person could believe it. To the extent

there was any conflict between Kellen’s testimony and the testimony of others,

this is an issue of witness credibility, and we do not assess witness credibility or

reweigh the evidence. See Jordan, 656 N.E.2d at 817. The witnesses were

thoroughly examined and cross-examined, and Ensign’s counsel questioned

Kellen regarding his heroin use and criminal history, his prior and current

relationship with Ensign, and any leniency he hoped to gain or gained by

cooperating with law enforcement. Based upon our review of the evidence as

set forth above and in the record, we conclude that the State presented evidence

of a probative nature from which a trier of fact could find beyond a reasonable

doubt that Ensign committed the charged crimes.

II.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 8 of 12 [14] The next issue is whether Ensign’s sentence is inappropriate in light of the

nature of his offenses and his character. Ensign argues that three of his prior

felony convictions would likely be charged as misdemeanors today, none of his

prior charges were more serious than a class D felony, and he was previously

successful with probation and parole. He argues that the nature of the burglary

was wholly outside the realm of his prior criminal acts and that he was a

substance abuser and thief, not one who broke into buildings. He notes the

court did not consider his lack of parental role models and substance abuse

problems and that he received the maximum sentence.

[15] The State responds that Ensign orchestrated the plan, drove Kellen to the

location where the crimes were committed, and took the lead in negotiating

with Mohoi. It points out that Ensign was adjudicated delinquent for nine

felonies as a juvenile and charged approximately thirty-six times resulting in

three felony and twenty-three misdemeanor convictions as an adult, that his

history is riddled with countless thefts, robberies, burglaries, and receiving

stolen property, that he was on probation when he committed the offenses, and

that his criminal history places him among the worst of offenders. It also

argues that Ensign’s persistent substance abuse reflects negatively on his

character.

[16] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, [we find] that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” Under this rule, the burden is on the defendant to persuade

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 9 of 12 the appellate court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006).

[17] Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall

be imprisoned for a fixed term of between one and six years, with the advisory

sentence being three years. Ind. Code § 35-50-2-7 provides that a person who

commits a level 6 felony shall be imprisoned for a fixed term of between six

months and two and one-half years, with the advisory sentence being one year.

The court sentenced Ensign to six years for his convictions for burglary as level

5 felonies and two years and 182 days for his conviction for theft as a level 6

felony and ordered that the sentences be served concurrently.

[18] Our review of the nature of the offenses reveals that Ensign and Kellen drove to

a street in Porter County, took numerous items from two structures and a

vehicle, sold a number of the items at a resale shop, and split the proceeds.

[19] Our review of the character of the offender reveals that, according to the PSI,

Ensign was referred to juvenile authorities four times resulting in nine felony

adjudications and one misdemeanor adjudication, and as an adult was

arrested/charged thirty-six times consisting of fifteen felonies and thirty-nine

misdemeanor charges resulting in three felony convictions and twenty-three

misdemeanor convictions. Ensign’s juvenile history includes burglaries and

thefts which would be felonies if committed by an adult. His adult history

includes receiving stolen property and two counts of theft as class D felonies as

well as resisting law enforcement, driving while suspended, two counts of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 10 of 12 battery, two counts of criminal mischief, unauthorized entry of a motor vehicle,

false informing, and multiple counts of public intoxication as misdemeanors.

Ensign has been placed on and violated probation.

[20] The PSI further states that Ensign’s family and peers possess extensive criminal

records, Ensign met Kellen while in jail, and Ensign reported he does not have

a permanent residence, has lived with his mother, step-mother, and girlfriend,

and “couch surfs.” The PSI provides that Ensign’s chronic substance abuse

issues began when he was fourteen or fifteen years old, he reported he was an

alcoholic by the time he was sixteen years old, he began smoking marijuana

when he was fourteen or fifteen years old, and that he started injecting heroin

when he was thirty-two years old and was injecting heroin daily at the time of

the offense. It further provides that he had been in a Suboxone program for one

year prior to being remanded by the court in March 2018, that he relayed he has

also abused cocaine, mushrooms, LSD, and hashish, and that his only formal

substance abuse treatment was court ordered and he never successfully

completed treatment. The PSI also indicates that Ensign scored high in six of

seven domains of the IRAS and that his overall risk assessment score places

him in the very high risk to reoffend category. The PSI states that Ensign’s risk

level is based on many different factors including his criminal history, lack of

employment, substance abuse, peers, well-established pattern of criminal

behavior, and criminal attitude and that he has shown little or no interest in

making changes in these areas. The probation officer who prepared the PSI

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 11 of 12 recommended that Ensign be sentenced to an aggregate term of eight years in

the DOC.

[21] After due consideration, we conclude that Ensign has not sustained his burden

of establishing that his sentence is inappropriate in light of the nature of the

offenses and his character. 2

[22] For the foregoing reasons, we affirm Ensign’s convictions and sentence.

[23] Affirmed.

Bailey, J., and Bradford, J., concur.

2 To the extent Ensign argues the court abused its discretion in sentencing him by failing to consider his lack of parental role models, his substance abuse problems, or other factors, we need not address this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1784 | February 21, 2019 Page 12 of 12