FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of May 21 2012, 9:18 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JANE H. CONLEY GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
MICHELLE BUMGARNER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHNATHON GREGG, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1111-CR-566 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-1103-FB-17943
May 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge STATEMENT OF THE CASE
Jonathon Gregg appeals his conviction for burglary, as a Class B felony, following
a bench trial. He presents a single issue for review, namely, whether the evidence is
sufficient to support his conviction for burglary.1
We affirm.
FACTS AND PROCEDURAL HISTORY
On the morning of February 14, 2011, Carol Douglas left her home in Indianapolis
around 8:45 a.m., and her husband James left for work a short while later. The front and
back doors of the home were locked. When James returned home around 2:45 p.m. to get
his lunch, he found the glass in the back door had been shattered and the house had been
“ransacked.” Transcript at 9. Several items were missing, including Colts helmets, a
Terry Bradshaw football, Wii gaming systems, laptop computers, Longaberger baskets,
and a set of golf clubs. At 4:33 p.m. the same day, Gregg pawned items at Jackpotts LLC
in Indianapolis, including two sets of golf clubs.
James reported the break-in to police. Officers recovered fingerprints on a
television inside the house that had been partially removed from a wall. The prints
belonged to Gary Miller.2 Indianapolis Metropolitan Police Department (“IMPD”)
Detective Larry Craciunoiu interviewed Miller, who implicated Gregg in the break-in and
theft. Officers later recovered the golf clubs from the pawn shop. Gregg’s signature and
thumbprint were on the pawn ticket.
1 Gregg does not appeal his conviction for theft, as a Class B felony, or the adjudication that he is an habitual offender. 2 Miller had pleaded guilty to burglary and, as part of that plea, had agreed to testify as a State’s witness at Gregg’s trial. 2 The State charged Gregg with burglary, as a Class B felony, and theft, as a class B
felony, and with being an habitual offender. Gregg waived a jury trial and, following a
bench trial, the court convicted him on both counts as charged and, following Gregg’s
admission, found him to be an habitual offender. The court sentenced Gregg to fifteen
years for burglary, enhanced by ten years for being an habitual offender, and to 901 days
for theft, to run concurrently but with sixteen years executed and nine years suspended to
probation. Gregg now appeals.
DISCUSSION AND DECISION
Gregg contends that the evidence is insufficient to support his conviction for
burglary. When the sufficiency of the evidence to support a conviction is challenged, we
neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if
there is substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of
the fact-finder to determine whether the evidence in a particular case sufficiently proves
each element of an offense, and we consider conflicting evidence most favorably to the
trial court’s ruling. Id. at 906.
Gregg argues that the “sole evidence of burglary against [him] was the testimony
of Gary Miller[, which was] vacillating, required frequent prompting, and contradicted
itself.” Appellant’s Brief at 5. He contends that there is no direct evidence linking him
to the break-in at the Douglas home aside from Miller’s “contradictory and wavering”
testimony. Appellant’s Brief at 10. But Gregg forgets that, under the accomplice theory
3 of liability, a person who aids another person in committing an offense is guilty of the
offense as if he were the principal. See Ind. Code § 35-41-2-4. We consider whether the
evidence is sufficient to support his conviction for burglary as an accomplice.
To prove that Gregg committed burglary, as a Class B felony, the State was
required to show beyond a reasonable doubt that Gregg broke and entered the “dwelling
of James Douglas and/or Carol Douglas . . . with intent to commit a felony of Theft
therein[.]” Appellant’s App. at 25; see also Ind. Code § 35-43-2-1(1)(B)(i). Under
accomplice liability, a “person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense[.]” Ind. Code § 35-41-2-4.
In determining whether a person aided another in the commission of a crime, our
supreme court has long considered the following four factors: (1) presence at the scene
of the crime; (2) companionship with another engaged in criminal activity; (3) failure to
oppose the crime; and (4) a defendant’s conduct before, during, and after the occurrence
of the crime. Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct. App. 2005) (citing
Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003)), trans. denied. While the defendant’s
presence during the commission of the crime or his failure to oppose the crime are, by
themselves, insufficient to establish accomplice liability, the jury may consider them
along with other facts and circumstances tending to show participation. Id. (citing
Hodge v. State, 688 N.E.2d 1246, 1248 (Ind. 1997)). In order to sustain a conviction as
an accomplice, there must be evidence of the defendant’s affirmative conduct, either in
the form of acts or words, from which an inference of common design or purpose to
4 effect the commission of a crime may reasonably be drawn. Id. (citing Peterson v. State,
699 N.E.2d 701, 706 (Ind. Ct. App. 1998)).
Here, Miller testified that on February 14, 2011, he and Gregg broke in to the
Douglas house, choosing that location at random. Specifically, Gregg drove the two to
the house in a truck, and when no one answered the door, Gregg and Miller went to the
back door where one of them broke the glass.3 Once the two men were in the house,
Miller went downstairs and began taking “anything he could find” and Gregg went
“somewhere else.” Transcript at 28. Gregg then pulled the truck around to the back and
helped Miller load the stolen items into the truck. A few hours later, Gregg pawned two
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FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of May 21 2012, 9:18 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JANE H. CONLEY GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
MICHELLE BUMGARNER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHNATHON GREGG, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1111-CR-566 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-1103-FB-17943
May 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge STATEMENT OF THE CASE
Jonathon Gregg appeals his conviction for burglary, as a Class B felony, following
a bench trial. He presents a single issue for review, namely, whether the evidence is
sufficient to support his conviction for burglary.1
We affirm.
FACTS AND PROCEDURAL HISTORY
On the morning of February 14, 2011, Carol Douglas left her home in Indianapolis
around 8:45 a.m., and her husband James left for work a short while later. The front and
back doors of the home were locked. When James returned home around 2:45 p.m. to get
his lunch, he found the glass in the back door had been shattered and the house had been
“ransacked.” Transcript at 9. Several items were missing, including Colts helmets, a
Terry Bradshaw football, Wii gaming systems, laptop computers, Longaberger baskets,
and a set of golf clubs. At 4:33 p.m. the same day, Gregg pawned items at Jackpotts LLC
in Indianapolis, including two sets of golf clubs.
James reported the break-in to police. Officers recovered fingerprints on a
television inside the house that had been partially removed from a wall. The prints
belonged to Gary Miller.2 Indianapolis Metropolitan Police Department (“IMPD”)
Detective Larry Craciunoiu interviewed Miller, who implicated Gregg in the break-in and
theft. Officers later recovered the golf clubs from the pawn shop. Gregg’s signature and
thumbprint were on the pawn ticket.
1 Gregg does not appeal his conviction for theft, as a Class B felony, or the adjudication that he is an habitual offender. 2 Miller had pleaded guilty to burglary and, as part of that plea, had agreed to testify as a State’s witness at Gregg’s trial. 2 The State charged Gregg with burglary, as a Class B felony, and theft, as a class B
felony, and with being an habitual offender. Gregg waived a jury trial and, following a
bench trial, the court convicted him on both counts as charged and, following Gregg’s
admission, found him to be an habitual offender. The court sentenced Gregg to fifteen
years for burglary, enhanced by ten years for being an habitual offender, and to 901 days
for theft, to run concurrently but with sixteen years executed and nine years suspended to
probation. Gregg now appeals.
DISCUSSION AND DECISION
Gregg contends that the evidence is insufficient to support his conviction for
burglary. When the sufficiency of the evidence to support a conviction is challenged, we
neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if
there is substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of
the fact-finder to determine whether the evidence in a particular case sufficiently proves
each element of an offense, and we consider conflicting evidence most favorably to the
trial court’s ruling. Id. at 906.
Gregg argues that the “sole evidence of burglary against [him] was the testimony
of Gary Miller[, which was] vacillating, required frequent prompting, and contradicted
itself.” Appellant’s Brief at 5. He contends that there is no direct evidence linking him
to the break-in at the Douglas home aside from Miller’s “contradictory and wavering”
testimony. Appellant’s Brief at 10. But Gregg forgets that, under the accomplice theory
3 of liability, a person who aids another person in committing an offense is guilty of the
offense as if he were the principal. See Ind. Code § 35-41-2-4. We consider whether the
evidence is sufficient to support his conviction for burglary as an accomplice.
To prove that Gregg committed burglary, as a Class B felony, the State was
required to show beyond a reasonable doubt that Gregg broke and entered the “dwelling
of James Douglas and/or Carol Douglas . . . with intent to commit a felony of Theft
therein[.]” Appellant’s App. at 25; see also Ind. Code § 35-43-2-1(1)(B)(i). Under
accomplice liability, a “person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense[.]” Ind. Code § 35-41-2-4.
In determining whether a person aided another in the commission of a crime, our
supreme court has long considered the following four factors: (1) presence at the scene
of the crime; (2) companionship with another engaged in criminal activity; (3) failure to
oppose the crime; and (4) a defendant’s conduct before, during, and after the occurrence
of the crime. Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct. App. 2005) (citing
Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003)), trans. denied. While the defendant’s
presence during the commission of the crime or his failure to oppose the crime are, by
themselves, insufficient to establish accomplice liability, the jury may consider them
along with other facts and circumstances tending to show participation. Id. (citing
Hodge v. State, 688 N.E.2d 1246, 1248 (Ind. 1997)). In order to sustain a conviction as
an accomplice, there must be evidence of the defendant’s affirmative conduct, either in
the form of acts or words, from which an inference of common design or purpose to
4 effect the commission of a crime may reasonably be drawn. Id. (citing Peterson v. State,
699 N.E.2d 701, 706 (Ind. Ct. App. 1998)).
Here, Miller testified that on February 14, 2011, he and Gregg broke in to the
Douglas house, choosing that location at random. Specifically, Gregg drove the two to
the house in a truck, and when no one answered the door, Gregg and Miller went to the
back door where one of them broke the glass.3 Once the two men were in the house,
Miller went downstairs and began taking “anything he could find” and Gregg went
“somewhere else.” Transcript at 28. Gregg then pulled the truck around to the back and
helped Miller load the stolen items into the truck. A few hours later, Gregg pawned two
sets of golf clubs that had been taken from the Douglas’ home.
In sum, the uncontradicted evidence shows that Gregg and Miller were together
when the break-in occurred, that both were present at the time of the offense, and that
Gregg never opposed the crime. Although Miller’s testimony vacillated as to who broke
the back door glass and was ambiguous as to whether Gregg actually removed anything
from the home, Gregg participated by driving to and from the scene, he pawned two
items stolen from the Douglas home hours after the offense, and he has not appealed his
conviction for theft. Regardless of whether Miller’s testimony concerning the details of
the offense are equivocal, the evidence clearly shows that Gregg was present and
participated in the break-in. Gregg’s arguments amount to a request that we reweigh the
evidence, which we will not do. See Wright, 828 N.E.2d 904, 905-06. Therefore, the
3 In a statement given following his arrest, Miller told police that Gregg had broken the glass in the Douglas’ back door. At trial, Miller testified that he had broken the glass in the back door. 5 evidence is sufficient to support his conviction for burglary under a theory of accomplice
liability, and we affirm his conviction for burglary, as a Class B felony.
Affirmed.
RILEY, J., and DARDEN, J., concur.