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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK F. JAMES GREGORY F. ZOELLER Anderson, Agostino & Keller P.C. Attorney General of Indiana South Bend, Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana
Aug 29 2014, 9:34 am
IN THE COURT OF APPEALS OF INDIANA
JOHNNYLEE SIMS, ) ) Appellant-Defendant, ) ) vs. ) No. 71A05-1403-CR-98 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Jerome Frese, Judge Cause No. 71D03-1207-FC-169
August 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge Case Summary
Johnnylee Sims appeals his conviction for class C felony burglary. He challenges the
sufficiency of the evidence to support his conviction as well as the trial court’s admission of
a 911 recording. Finding the evidence sufficient and concluding that the trial court acted
within its discretion in admitting the 911 recording, we affirm.
Facts and Procedural History1
Late one night in July 2012, as Rodney Dials sat on the front porch of his South Bend
home, he saw a man circle around a nearby building housing a convenience store and a
small-engine-repair garage. Dials had lived in his home for forty-two years, knew the
building owner Clarence Taylor, and took regular walks by the building. When Dials heard a
noise coming from the garage area of the building, he approached the alley by the garage and
noticed that a panel had been broken out of the garage door. Dials saw a man later identified
as Sims inside the lighted garage. Sims gathered three weedeaters and pushed them one by
one through the missing panel. He then crawled through the opening and out into the alley.
There, he was confronted by Dials, who informed him that he was calling the police. Sims
took the three weedeaters and left.
Dials immediately phoned 911 and described to the dispatcher Sims’s complexion,
hair, and clothing. He stated that the suspect had stolen weedeaters from the garage and left,
heading in the direction of a nearby park.
1 We note that Sims has failed to include a statement of facts in his appellant’s brief as required by Indiana Appellate Rule 46(A)(6).
2 When police apprehended Sims at a nearby gas station, he had three weedeaters in his
possession. He told the officers that the weedeaters belonged to him and that he was
planning to use them for scrap. He later testified that he had found the weedeaters in the
alley by the garage and assumed that they were trash. Police went to the scene and found no
weedeaters or other trashed lawn equipment in the alley. They saw that there was a panel
missing from the garage door.
Property owner Taylor reported that he had not known of any missing panel prior to
the incident. He also stated that he did not know Sims, that he never left weedeaters or other
equipment in the alley as trash, and that he always kept items inside the garage in the hope of
using the parts to fix other small engines and equipment.
The State charged Sims with class C felony burglary. At trial, the State introduced the
recording of Dials’s 911 call over Sims’s objection. The jury found him guilty as charged.
He now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – Sufficiency of Evidence
Sims challenges the sufficiency of the evidence to support his burglary conviction.
When reviewing a challenge to the sufficiency of evidence, we neither reweigh evidence nor
judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we
consider only the evidence and reasonable inferences most favorable to the verdict and will
affirm the conviction “unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id.
3 Indiana Code Section 35-43-2-1 (1999) states, “A person who breaks and enters the
building or structure of another person, with intent to commit a felony in it, commits
burglary, a Class C felony.” Here, the State charged Sims with breaking and entering
Taylor’s garage with the intent to commit a felony therein, that is, theft, meaning that he
“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.” Ind. Code § 35-43-4-2
(2009).
Dials was the sole eyewitness to the burglary. Sims characterizes Dials’s testimony as
dubious and asks that we impinge upon the jury’s function to judge Dials’s credibility by
applying the “incredible dubiosity” rule, which states,
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.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations and quotation marks omitted).
Dials testified that there were lights on inside the garage and that he could see Sims
through the missing two-by-three-foot door panel. He testified that he observed Sims as he
walked around inside the garage, pushed one weedeater through the opening, and then
returned twice to obtain other weedeaters and set them outside. Sims bases his incredible
dubiosity claim on the fact that each of the officers testified that there were no lights on
inside the garage. However, none of the officers were present while Sims was inside the
4 garage. Thus, the officers could not possibly have testified about whether the lights were on
at the time of the offense. They could only testify concerning their observations once they
were dispatched to the scene. The jury was free to infer that in the interim, the lights had
been turned off. Dials’s testimony therefore does not contradict the officers’ testimony.
Moreover, the incredible dubiosity rule applies only where there is a complete lack of
circumstantial evidence. Here, testimonial and circumstantial evidence bolsters Dials’s
account of the incident. Taylor testified that he did not know Sims, that he had never given
Sims permission to take any weedeaters from his garage, and that he never kept weedeaters
outside for disposal, as Sims had asserted. Police officers pursued and apprehended Sims
based on Dials’s description and found three of Taylor’s weedeaters in his possession. The
officers’ testimony concerning their observations of damage to the garage door corroborated
Dials’s testimony that Sims had gained entrance to the garage by breaking a door panel, one
that had not been broken hours earlier when Dials walked by the property. Simply put,
Dials’s testimony is neither inherently improbable nor lacking in corroboration. Thus, the
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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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK F. JAMES GREGORY F. ZOELLER Anderson, Agostino & Keller P.C. Attorney General of Indiana South Bend, Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana
Aug 29 2014, 9:34 am
IN THE COURT OF APPEALS OF INDIANA
JOHNNYLEE SIMS, ) ) Appellant-Defendant, ) ) vs. ) No. 71A05-1403-CR-98 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Jerome Frese, Judge Cause No. 71D03-1207-FC-169
August 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge Case Summary
Johnnylee Sims appeals his conviction for class C felony burglary. He challenges the
sufficiency of the evidence to support his conviction as well as the trial court’s admission of
a 911 recording. Finding the evidence sufficient and concluding that the trial court acted
within its discretion in admitting the 911 recording, we affirm.
Facts and Procedural History1
Late one night in July 2012, as Rodney Dials sat on the front porch of his South Bend
home, he saw a man circle around a nearby building housing a convenience store and a
small-engine-repair garage. Dials had lived in his home for forty-two years, knew the
building owner Clarence Taylor, and took regular walks by the building. When Dials heard a
noise coming from the garage area of the building, he approached the alley by the garage and
noticed that a panel had been broken out of the garage door. Dials saw a man later identified
as Sims inside the lighted garage. Sims gathered three weedeaters and pushed them one by
one through the missing panel. He then crawled through the opening and out into the alley.
There, he was confronted by Dials, who informed him that he was calling the police. Sims
took the three weedeaters and left.
Dials immediately phoned 911 and described to the dispatcher Sims’s complexion,
hair, and clothing. He stated that the suspect had stolen weedeaters from the garage and left,
heading in the direction of a nearby park.
1 We note that Sims has failed to include a statement of facts in his appellant’s brief as required by Indiana Appellate Rule 46(A)(6).
2 When police apprehended Sims at a nearby gas station, he had three weedeaters in his
possession. He told the officers that the weedeaters belonged to him and that he was
planning to use them for scrap. He later testified that he had found the weedeaters in the
alley by the garage and assumed that they were trash. Police went to the scene and found no
weedeaters or other trashed lawn equipment in the alley. They saw that there was a panel
missing from the garage door.
Property owner Taylor reported that he had not known of any missing panel prior to
the incident. He also stated that he did not know Sims, that he never left weedeaters or other
equipment in the alley as trash, and that he always kept items inside the garage in the hope of
using the parts to fix other small engines and equipment.
The State charged Sims with class C felony burglary. At trial, the State introduced the
recording of Dials’s 911 call over Sims’s objection. The jury found him guilty as charged.
He now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – Sufficiency of Evidence
Sims challenges the sufficiency of the evidence to support his burglary conviction.
When reviewing a challenge to the sufficiency of evidence, we neither reweigh evidence nor
judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we
consider only the evidence and reasonable inferences most favorable to the verdict and will
affirm the conviction “unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id.
3 Indiana Code Section 35-43-2-1 (1999) states, “A person who breaks and enters the
building or structure of another person, with intent to commit a felony in it, commits
burglary, a Class C felony.” Here, the State charged Sims with breaking and entering
Taylor’s garage with the intent to commit a felony therein, that is, theft, meaning that he
“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.” Ind. Code § 35-43-4-2
(2009).
Dials was the sole eyewitness to the burglary. Sims characterizes Dials’s testimony as
dubious and asks that we impinge upon the jury’s function to judge Dials’s credibility by
applying the “incredible dubiosity” rule, which states,
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.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations and quotation marks omitted).
Dials testified that there were lights on inside the garage and that he could see Sims
through the missing two-by-three-foot door panel. He testified that he observed Sims as he
walked around inside the garage, pushed one weedeater through the opening, and then
returned twice to obtain other weedeaters and set them outside. Sims bases his incredible
dubiosity claim on the fact that each of the officers testified that there were no lights on
inside the garage. However, none of the officers were present while Sims was inside the
4 garage. Thus, the officers could not possibly have testified about whether the lights were on
at the time of the offense. They could only testify concerning their observations once they
were dispatched to the scene. The jury was free to infer that in the interim, the lights had
been turned off. Dials’s testimony therefore does not contradict the officers’ testimony.
Moreover, the incredible dubiosity rule applies only where there is a complete lack of
circumstantial evidence. Here, testimonial and circumstantial evidence bolsters Dials’s
account of the incident. Taylor testified that he did not know Sims, that he had never given
Sims permission to take any weedeaters from his garage, and that he never kept weedeaters
outside for disposal, as Sims had asserted. Police officers pursued and apprehended Sims
based on Dials’s description and found three of Taylor’s weedeaters in his possession. The
officers’ testimony concerning their observations of damage to the garage door corroborated
Dials’s testimony that Sims had gained entrance to the garage by breaking a door panel, one
that had not been broken hours earlier when Dials walked by the property. Simply put,
Dials’s testimony is neither inherently improbable nor lacking in corroboration. Thus, the
incredible dubiosity rule is inapplicable, and we must decline Sims’s invitation to reweigh
evidence and judge credibility. The evidence most favorable to the verdict is sufficient to
support Sims’s burglary conviction.
Section 2 – Admission of Evidence
Sims also maintains that the trial court committed reversible error in admitting the
recording of Dials’s 911 call. We review a trial court’s ruling on the admissibility of
evidence using an abuse of discretion standard. Bradford v. State, 960 N.E.2d 871, 873 (Ind.
5 Ct. App. 2012). An abuse of discretion occurs where the trial court’s ruling is clearly against
the logic, facts, and circumstances before it. Id. In reviewing the admissibility of evidence,
we consider only the evidence in favor of the trial court’s ruling and any unrefuted evidence
in favor of the appellant. Kirk v. State, 974 N.E.2d 1059, 1066 (Ind. Ct. App. 2012), trans.
denied. “Error may not be predicated upon a ruling that admits or excludes evidence unless a
substantial right of the party is affected.” Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct.
App. 2009) (citing Ind. Evidence Rule 103). In ascertaining whether an evidentiary ruling
affected a party’s substantial rights, we assess the probable impact of that evidence on the
trier of fact. Kirk, 974 N.E.2d at 1066.
Indiana Evidence Rule 403 (2013) states, “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.” Sims submits that the 911 recording is
identical in content to Dials’s in-court testimony and that “the jury hear[ing] the same
testimony twice … was prejudicial.” Appellant’s Br. at 3. We disagree.
First, the mere fact that the jury hears the same evidence more than once does not
render the evidence prejudicial. See Gaines v. State, 999 N.E.2d 999, 1005 (Ind. Ct. App.
2013) (emphasizing that admission of evidence is harmless and not grounds for reversal
where evidence is merely cumulative of other properly admitted evidence). Second, we note
that while the information contained in the 911 recording overlaps in some respects with
Dials’s in-court testimony, the two are not identical. For example, at trial, Dials never
6 described Sims’s physical attributes or the clothing he wore on the night of the incident;
instead, he simply stated that he had given police a description of Sims and the weedeaters
and told them in which direction Sims had fled. In contrast, the 911 recording specifically
describes certain of Sims’s physical attributes, such as his complexion and the color and style
of his hair and clothing. Additionally, Dials’s ability to provide such specific details
immediately after the incident bolstered his in-court testimony regarding the close proximity
between him and Sims during the confrontation as well as his observations concerning the
weedeaters.
In sum, Sims has failed to establish that the 911 recording was needlessly cumulative
or that he was otherwise unfairly prejudiced by the trial court’s ruling. Based on the
foregoing, we conclude that the trial court acted within its discretion in admitting the
recording. Accordingly, we affirm.
Affirmed.
RILEY, J., and MATHIAS, J., concur.