Mark Johnson a/k/a Garland P. Jeffers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2016
• Docket: 49A05-1511-CR-1916
• Status: Published

Opinion

MEMORANDUM DECISION FILED May 25 2016, 9:21 am

Pursuant to Ind. Appellate Rule 65(D), CLERK FILED May 25 2016, 9:20 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals and Tax Court 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 Michael C. Borschel Gregory F. Zoeller Fishers, Indiana Attorney General of Indiana

Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Johnson May 25, 2016 a/k/a Garland P. Jeffers, Court of Appeals Case No. 49A05-1511-CR-1916 Appellant-Defendant, Appeal from the Marion Superior v. Court The Honorable Lisa F. Borges, State of Indiana, Judge Trial Court Cause No. Appellee-Plaintiff 49G04-1407-F5-37215

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 1 of 8 Case Summary [1] Mark Johnson, a/k/a Garland P. Jeffers (“Jeffers”), 1 challenges the sufficiency

of the evidence supporting his conviction for level 5 felony burglary. Finding

that his arguments essentially amount to requests to reweigh evidence, we

affirm his burglary conviction. Additionally, we review sua sponte his two

convictions for resisting law enforcement. Concluding that those convictions

violate double jeopardy principles, we remand with instructions to vacate his

class A misdemeanor resisting law enforcement conviction and sentence.

Facts and Procedural History [2] The facts most favorable to the verdict are as follows. Around 11:00 p.m. on

July 24, 2014, Nikita Barbee was sitting in her vehicle outside a storage facility

when she observed a white pickup truck drive into a field between MacAllister’s

Machinery and an abandoned house. She saw two men in dark clothing exit

the pickup and run behind the abandoned house. She called 911 and stayed on

the phone with the dispatcher as she heard thuds and noticed the two men

loading items into the back of the pickup. Shortly thereafter, the men drove

away in the pickup.

[3] At that time, Beech Grove Police Officer Lee Huffman was patrolling nearby

and observed a pickup fitting Barbee’s description. When the pickup stopped at

1 We note that the appellant refers to himself in his briefs and certain pro se filings as Garland P. Jeffers-El. As best we can discern his legal name is Garland P. Jeffers, and we refer to him as such.

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 2 of 8 a stoplight, Officer Huffman drove up next to it and observed two African-

American men inside. The officer made a U-turn, pulled up behind the pickup,

and radioed for assistance. He activated his lights and attempted to initiate a

traffic stop, but the pickup failed to stop. When the driver (Jeffers) made a U-

turn and headed toward I-465, Officer Huffman activated his siren and radioed

his new position to the backup officer. Again refusing to stop, Jeffers entered I-

465 going the wrong way on an off-ramp. He made another U-turn, and the

officer remained in pursuit. A high-speed chase ensued, with the pickup

weaving in and out of traffic at speeds in excess of 100 miles per hour.

Eventually the pickup exited the freeway, and the chase continued at high

speeds through several red lights.

[4] After the pickup crashed in front of a car lot, officers observed the driver,

Jeffers, and his passenger, Anthony Allen, as they ran from the vehicle, through

the car lot, and into a wooded area. With the help of a K-9 unit, officers

apprehended Jeffers and Allen, placed them in custody, and returned with them

to the crash site. In and around the pickup bed, police found weed eaters, leaf

blowers, chainsaws, and hedge trimmers, all of which were subsequently linked

by serial number to inventory missing from MacAllister’s. Police visited

MacAllister’s’ property and found a large hole cut out of the perimeter fence

and a pair of bolt cutters. Police also found that an ordinarily locked and barred

door to the warehouse was unlocked. MacAllister’s service manager Tim

Retherford reported that a man fitting Allen’s description had shopped at

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 3 of 8 MacAllister’s that afternoon, stayed an hour and a half, and behaved strangely

near the unlocked door.

[5] At the scene, Jeffers told police that his name was Mark Johnson, but police

later determined that his real name was Jeffers. The State charged Jeffers with

level 5 felony burglary, level 6 felony resisting law enforcement, and class A

misdemeanor resisting law enforcement. The jury found Jeffers guilty as

charged. The trial court entered judgment on all three counts and sentenced

him to four years for burglary, with concurrent two-year and one-year terms on

the resisting law enforcement counts. Jeffers now appeals. Additional facts will

be provided as necessary.

Discussion and Decision Section 1 – The evidence is sufficient to support Jeffers’s burglary conviction. [6] Jeffers maintains that the evidence is insufficient 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. It is therefore not necessary that

the evidence “overcome every reasonable hypothesis of innocence.” Id.

(citation omitted). “Where the evidence of guilt is essentially circumstantial,

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 4 of 8 the question for the reviewing court is whether reasonable minds could reach

the inferences drawn by the jury; if so, there is sufficient evidence.” Jones v.

State, 924 N.E.2d 672, 674 (Ind. Ct. App. 2010) (citation omitted). Without

question, a burglary conviction may be supported solely by circumstantial

evidence. Brink v. State, 837 N.E.2d 192, 196 (Ind. Ct. App. 2005).

[7] Pursuant to Indiana Code Section 35-43-2-1, the State alleged that Jeffers

committed level 5 felony burglary by breaking and entering MacAllister’s

building or structure with intent to commit the felony of theft in it. Jeffers’s

sufficiency claim essentially focuses on his identity.

[8] Here, Officer Huffman received a radio dispatch of a possible burglary

involving two men in dark clothing in a white pickup. When he saw a white

pickup near the location described in the dispatch, he pulled up beside it,

noticed two men inside whose dark clothing matched the witness’s description,

and radioed for backup. Instead of stopping when Officer Huffman activated

his lights and siren, Jeffers led the officer on a high-speed chase, which entailed

entering the interstate going the wrong direction, making a U-turn, exiting the

highway, running several red lights, and eventually crashing the truck. Even

then, Jeffers and his cohort Allen fled on foot and were apprehended after

attempting to hide from the pursuing officers. Jeffers’s flight both by vehicle

and on foot, as well as his attempts to avoid arrest, are circumstantial evidence

of his consciousness of guilt. See Myers v. State, 27 N.E.3d 1069, 1077 (Ind.

2015) (“[E]vidence of flight may be considered as circumstantial evidence of

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 5 of 8 consciousness of guilt …. [and] evidence of an attempt to avoid arrest also tends

to show guilt.”).

[9] Both circumstantial and physical evidence support a reasonable inference that

Jeffers participated in the burglary. Jeffers drove and crashed the white pickup

and was apprehended with his passenger Allen. The contraband found in the

pickup was identified by serial number as merchandise missing from

MacAllister’s. MacAllister’s service manager Retherford described Allen as the

shopper that he had encountered late that afternoon who had stayed an

unusually long time and behaved strangely near the door that police found to

have been unlocked, thus supporting a reasonable inference concerning the

duo’s access to the building later that night. A large hole in the fence

surrounding MacAllister’s as well as wire cutters found on the property the next

day explain the means of entrance to the grounds. Barbee witnessed two men

in clothing that matched Jeffers’s and Allen’s running from the white pickup

and subsequently loading items into its bed in the field adjacent to

MacAllister’s. To the extent that Jeffers challenges Barbee’s vantage point as

the sole eyewitness, he invites us to reweigh evidence and judge witness

credibility, which we may not and will not do. The evidence most favorable to

the verdict is sufficient to support Jeffers’s burglary conviction.

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 6 of 8 Section 2 – We review sua sponte Jeffers’s convictions for resisting law enforcement and remand with instructions to vacate his class A misdemeanor conviction on double jeopardy grounds. [10] Finally, we address sua sponte the trial court’s entry of judgment against Jeffers

on both counts of resisting law enforcement. Because double jeopardy

violations implicate fundamental rights, we may review them sua sponte.

Hayden v. State, 19 N.E.3d 831, 842 (Ind. Ct. App. 2014), trans. denied (2015).

[11] Here, Jeffers was convicted of both level 6 felony resisting law enforcement and

class A misdemeanor resisting law enforcement. The record indicates that

Jeffers led police on a high-speed vehicle chase followed by a chase on foot. 2

This Court has previously stated that the continuous crime doctrine “reflects a

category of Indiana’s prohibition against double jeopardy.” Walker v. State, 932

N.E.2d 733, 736 (Ind. Ct. App. 2010). 3 “The continuous crime doctrine is a

rule of statutory construction and common law limited to situations where a

defendant has been charged multiple times with the same offense.” Hines v.

State, 30 N.E.3d 1216, 1219 (Ind. 2015). The doctrine “does not seek to

2 The amended affidavit charged Jeffers with level 6 felony resisting law enforcement using a vehicle (Ind. Code § 35-44.1-3-1(b)) and class A misdemeanor resisting law enforcement based on Jeffers’s failure to comply with the officers’ commands to stop (Ind. Code § 35-44.1-3-1(a)(3)). 3 Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” The Fifth Amendment to the United States Constitution provides that no person “shall be subject for the same offense to be twice put in jeopardy of life or limb.” We have discerned no difference between the analysis of the continuous crime doctrine under Indiana or federal law. Lewis v. State, 43 N.E.3d 689, 691 n.1 (Ind. Ct. App. 2015).

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 7 of 8 reconcile the double jeopardy implications of two distinct chargeable crimes;

rather, it defines those instances where a defendant’s conduct amounts only to a

single chargeable crime.” Id. This Court has repeatedly determined, under

circumstances similar to those that occurred here, that a defendant’s acts of

fleeing by a vehicle and then on foot constitute one continuous act of resisting

law enforcement. Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015);

Arthur v. State, 824 N.E.2d 383, 385 (Ind. Ct. App. 2005), trans. denied; Nevel v.

State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004).

[12] Because Jeffers’s actions of fleeing the police by vehicle and then on foot

constituted one continuous act of resisting law enforcement, the entry of

judgment on both counts violated his protection against double jeopardy.

Accordingly, we remand with instructions to vacate Jeffers’s conviction and

sentence for class A misdemeanor resisting law enforcement. Because the trial

court imposed concurrent sentences, the vacation of the class A misdemeanor

conviction and sentence will have no effect on Jeffers’s aggregate sentence. In

all other respects, we affirm.

[13] Affirmed and remanded with instructions.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016 Page 8 of 8