Paul Reese, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 16, 2019
• Docket: 18A-CR-1985
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 16 2019, 5:45 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 Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Paul Reese, Jr., September 16, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1985 v. Appeal from the Putnam Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Matthew L. Headley, Judge Trial Court Cause No. 67C01-1708-F1-210

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 1 of 36 [1] Paul Reese, Jr. (“Reese”) was convicted after a jury trial of burglary1 as a Level

2 felony, conspiracy to commit burglary2 as a Level 2 felony, conspiracy to

commit armed robbery3 as a Level 3 felony, confinement while armed with a

deadly weapon4 as a Level 3 felony, theft5 as a Level 6 felony, auto theft6 as a

Level 6 felony, two counts of armed robbery,7 each as a Level 3 felony, and

burglary8 as a Level 1 felony. As a result of these nine convictions, he was

given a seventy-two-year aggregate sentence. Reese appeals his convictions and

sentence and raises multiple issues for our review, which we consolidate and

restate as:

I. Whether the trial court abused its discretion when it admitted certain evidence at trial, including cell phone records obtained as a result of a search warrant and a report regarding the contents of a cell phone;

II. Whether the State presented sufficient evidence at trial to support Reese’s convictions;

1 See Ind. Code § 35-43-2-1(3). 2 See Ind. Code §§ 35-41-5-2, 35-43-2-1(3). 3 See Ind. Code §§ 35-41-5-2, 35-42-5-1. 4 See Ind. Code § 35-42-3-3. 5 See Ind. Code § 35-43-4-2(a)(1)(A). 6 See Ind. Code § 35-43-4-2.5. 7 See Ind. Code § 35-42-5-1. 8 See Ind. Code § 35-43-2-1(4).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 2 of 36 III. Whether Reese’s convictions violated the prohibitions against double jeopardy; and

IV. Whether Reese’s seventy-two-year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History [3] Around 4:00 a.m. on April 2, 2017, Terry McCarter (“Terry”), who was

seventy-nine at the time, and his wife, Patsy, were awakened by a loud crash in

the area at the front of their house in Greencastle, Indiana. Tr. Vol. 2 at 142-43,

168-69. Terry got out of bed to investigate while Patsy stayed in bed because

she had a broken ankle and could not walk well. Id. at 143, 169. When he

reached the front of the house, Terry was met by a masked gunman who said,

“we’re the police” and told Terry to “[l]ay down on the floor with your face

down.” Id. at 143. Terry knew that the gunman was not a police officer, but

complied with his demand. Id.

[4] Immediately following that, three other gunmen, who were all wearing masks,

black clothes, gloves, some sort of stocking cap, and bandanas, came into the

house. Id. at 143-45, 170-72. One man stayed and guarded Terry while another

went into the bedroom to guard Patsy. Id. at 143. The man who went back to

the bedroom pointed a gun at Patsy and told her, “You’re going to be robbed.”

Id. at 170. He then went over to a dresser, where Patsy had eight drawers of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 3 of 36 over 100 pieces of jewelry, and started emptying the drawers of jewelry into

pillowcases. Id. at 170, 182. The man then found and took a .38 caliber pistol

from the nightstand by the bed. Id. The man also took a small safe and

additional jewelry from the bathroom. Id. at 172-73. The man turned the

nightstand over, threw the dresser drawers all over the room, threw a lamp

across the room, and “completely tore the bedroom up.” Id. at 170. The man

also turned over the Sleep Number mattress and pulled all of the hoses out of it.

Id. at 173.

[5] The other two men proceeded to ransack the house and steal everything of any

value in the home. Id. at 143. The men went into the attic, the basement, the

barn, and the garage to steal valuable items. Id. at 143, 171. The men took

Terry’s wallet and pants that contained the keys to the couple’s Buick

Rendezvous, Patsy’s purse, a pot where Terry threw spare change, and

approximately $6,000 in cash. Id. at 145-47, 183-84. In addition to the pistol

from the nightstand, the men stole a .223 rifle, a .22 rifle, a 12-gauge shotgun, a

single-shot shotgun, an antique musket gun, and knives. Id. at 145, 184. They

also stole various bottles of prescription medicine belonging to Terry and

several cameras that Patsy used in her job. Id. at 184-85. The men took a

chainsaw, air compressor, drills, and a lot of other smaller tools from the barn

and garage as well. Id. at 145, 156, 184. If the men did not steal an item, they

destroyed it, leaving the house in “total disarray.” Id. at 143, 151, 171.

[6] While the men were going through the home, Terry heard one of the men

referred to as “Dustin or Justin or something like that.” Id. at 146. The men Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 4 of 36 also joked and laughed while ransacking the house, and one in particular had

an extremely high-pitched laugh. Id. at 162, 176. The McCarters also noticed

that one of the men was quite a bit taller than the rest of the men. Id. at 172.

[7] The men had been at the McCarters’ home for more than an hour when the

man guarding Terry ordered him into the bedroom with Patsy. Id. at 143-44.

The men then ordered Terry and Patsy into the sunroom adjacent to their

bedroom. Id. at 144, 174. All four men came into the area, and one of them

put a gun to Patsy’s head and said, “Tell us where your stash is or I’m going to

blow her head off.” Id. at 144, 174. Terry told the men, “You’ve got

everything. I can’t help you.” Id. at 144. One of the men rushed into the

sunroom at that time and hit Terry on the side of his head with the butt of a

rifle. Id. at 144, 174. As a result, Terry was briefly knocked unconscious. Id. at

144. Patsy thought she and Terry were going to die. Id. at 174. The men

locked Patsy and Terry in the sunroom, left the house, went to the garage, and

drove away in the McCarters’ white Buick Rendezvous. Id. at 144, 146, 165-66,

174.

[8] After waiting a short time to make sure the men were gone, Terry exited the

sunroom through another door that the men had not locked, found a cell

phone, got in their other car, drove up the hill to where he had sufficient cell

phone service, and called 911. Id. at 144. Initially, the blow to his head did not

bother Terry, but three days later, he went to the hospital because of a severe

headache and learned that he had some bleeding of the brain. Id. at 153, 175.

The doctors stated that Terry would likely suffer from a headache for a while as

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 5 of 36 his body absorbed the dried blood. Id. at 175. However, about two weeks later,

Terry’s headache worsened, and he had to be rushed to the hospital to have an

emergency brain operation, where two holes were drilled in the side of his head

to the let the blood drain and relieve the pressure on his brain. Id. at 152-53,

175. He was hospitalized following the surgery for a period of five days. Id. at

153.

[9] Putnam County Sheriff’s Department Detective Douglas Nally (“Detective

Nally”) was the first detective to arrive on the scene, and as he walked through

the house, he observed that every room had been rifled through and ransacked.

Id. at 188. He discovered a boot print on a piece of plywood that had been used

as a ramp for Patsy, since she had been using a knee scooter because of her

broken ankle. Id. at 153, 190. Detective Nally also noticed tire tracks in the

yard that appeared as though they had been made by a vehicle, possibly a

dually truck,9 with a trailer attached to it because there was a set of tracks that

were normal sized with a smaller tire track next to it and there were tracks

where there were two sets of tires together. Id. at 193-95.

[10] On April 4, 2017, Christina Blair (“Blair”), who lived on Spann Avenue in

Indianapolis, Indiana saw a white Buick Rendezvous parked between 3835 and

3902 Spann Avenue and observed a tall white male, who fit the description of

Daltyn Randolph (“Randolph”), exit the vehicle and walk into the house

9 A dually truck is a truck that has dual rear wheels.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 6 of 36 located at 3835 Spann Avenue. Id. at 210-11; Tr. Vol. 3 at 8. Blair called police

and reported the vehicle. Tr. Vol. 2 at 211. After the vehicle was determined to

be the McCarters’ stolen car, police recovered it and took it to the Putnam

County Sheriff’s Department, where it was searched. Id. at 224. Inside the

vehicle, the police found a timestamped receipt from a McDonald’s restaurant a

few blocks from Spann Avenue, dated April 2, 2017, at 7:36 a.m. Id. at 224-25.

Putnam County Sheriff’s Department Detective Patrick McFadden (“Detective

McFadden”) went to that McDonald’s and obtained surveillance footage of the

vehicle related to the receipt and observed that the driver was wearing dark

gloves with white trim. Id. at 226, 228. Detective McFadden also drove past

the 3835 Spann Avenue residence to gather information about the individuals

living there. Id. at 228. As he drove behind the house, he noticed that the

garage door was partially open, and an individual later identified as Justin

Cherry (“Cherry”) came out from under the garage door and stared at Detective

McFadden’s vehicle as it drove by. Id. at 229; Tr. Vol. 3 at 6.

[11] On April 9, 2017, an officer with the Indianapolis Metropolitan Police

Department executed a search warrant concerning an unrelated matter at the

garage at 3835 Spann Avenue. Tr. Vol. 2 at 212. When the police arrived to

execute the warrant, the garage door was open, Reese was sitting outside right

in front of the garage, and Randolph showed up after the police had begun to

search. Id. at 213, 221-22. As a result of the search, the police discovered a

plastic grocery bag filled with miscellaneous items stolen from the McCarter

residence including prescription pill bottles bearing Terry’s name, mail, social

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 7 of 36 security cards, checks, a purse, and a wallet. Id. at 214, 216-19. The police

obtained an additional search warrant for the house at 3835 Spann Avenue and

executed that warrant on April 17, 2017. Id. at 229. When the officers arrived,

they ordered the occupants of the house to come out, and Randolph, Steven

Cosand (“Cosand”), Michael Hostetter, Ronnie Sosby and Cherry all

eventually emerged from inside. Id. at 230; Tr. Vol. 3 at 6. Cosand was a tenant

in the house, and Randolph is Cosand’s cousin. Tr. Vol. 2 at 230; Tr. Vol. 3 at 7,

57. While the men were outside, they were talking and laughing, and Detective

McFadden noticed that Randolph, who was very tall, had a “very very shrill”

laugh similar to Patsy’s description of one of the perpetrators. Tr. Vol. 2 at 231.

Detective McFadden noted that Cherry’s boots had a “strikingly similar” tread

pattern to that of the boot print found on the plywood at the McCarters’

residence, so his boots were collected and later compared to the boot print

recovered from the robbery, and the tread pattern and size of the boots matched

the impression. Id. at 232, 235-36, 247; Tr. Vol. 3 at 71-72.

[12] Once inside the house, officers entered Cherry’s bedroom and found the

McCarters’ safe with several pieces of Patsy’s jewelry inside and Terry’s .38

caliber handgun in a floor vent. Tr. Vol. 2 at 231, 233. Throughout the house,

the officers also found several pairs of gloves, several bandanas, and some

stocking caps. Id. at 231-32, 236-37. Patsy recognized one pair of gloves as

being similar to a pair she had seen on one of the men who burglarized her

house. Id. at 237; Tr. Vol. 3 at 85.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 8 of 36 [13] As a result of a hit on LeadsOnline, a national database covering thousands of

pawn stores that law enforcement uses to check for items that have been

pawned, Detective McFadden recovered two of Patsy’s bracelets at a Cash

America pawn shop directly across the street from the McDonald’s in the same

area as 3835 Spann Avenue. Tr. Vol. 2 at 191-92; Tr. Vol. 3 at 3, 96. Detective

McFadden obtained the pawn slip used to pawn those bracelets, and learned

that Ashley Hillenburg (“Hillenburg”), who has a child with Reese, had

pawned the items on April 7, 2017. Tr. Vol. 3 at 3-4, 53. Hillenburg admitted

that she had received the jewelry she pawned from Reese, who had given her

the jewelry because she needed money to pay for necessities for their child, and

Reese had no cash. Id. at 55-56. Reese and a man Hillenburg knew as

“Drake”10 went with her when she pawned the jewelry; Hillenburg pawned the

items, gave the money to Reese, and he gave part of the money back to

Hillenburg. Id. at 56, 58.

[14] Hillenburg and Reese also shared a storage unit; it was in Hillenburg’s name,

but Reese paid the bills, and both knew the four-digit PIN number that opened

the gate and allowed them access to their specific unit. Id. at 53-55. The gate

history log showed that the PIN number assigned to Hillenburg and Reese had

been used to enter the facility at 8:29 a.m. and to exit at 8:34 a.m. on April 2,

2017. Id. at 12-13. The surveillance video showed a dark-colored dually pickup

10 “Drake” was later determined to be Charles William Maybaum. Tr. Vol. 3 at 44, 56-57.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 9 of 36 truck entering and leaving at those times. Id. at 14. Surveillance video also

showed Reese paying the bill for the storage unit on April 3, 2017, wearing a

dark-colored shirt, dark beanie, and a bandana around his neck, which Patsy

confirmed was similar to the clothing the perpetrators wore. Id. at 14-15, 85.

[15] On May 10, 2017, officers executed a search warrant on the storage unit rented

by Hillenburg and Reese. Id. at 23. When the officers arrived at the storage

unit, Reese was standing next to a maroon Chevy pickup truck in front of the

open storage unit. Id. at 24, 27. The officers yelled, “Stop, police,” but Reese

refused all commands, jumped into the truck, and accelerated at a high rate of

speed toward the officers. Id. at 24. Reese was not able to exit the facility

through the only exit because it was blocked by one of the officer’s vehicles, so

Reese drove his truck through the fence. Id. Reese’s truck became stuck

because one of the tires was caught in the chain and poles of the fence. Id. at

24, 28-29. When the officers attempted to get Reese out of the truck, he put a

.38 caliber revolver in his mouth. Id. at 24-25. A four-hour standoff ensued,

which did not end until SWAT officers were able to disarm Reese and take him

into custody. Id. at 25.

[16] During the standoff, Reese called his girlfriend, Emily Redmon (“Redmon”),

and told her he was going to kill himself because he had “been caught.” Id. at

76. Previously, in mid-April, Reese had talked to Redmon about a home

invasion in Putnam County and told her that he needed to leave town and “lay

low because the police were closing in on him.” Id. at 74. After that

conversation, Reese disappeared for about a week and a half. Id. at 74-75.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 10 of 36 After he returned, Reese spoke to Redmon about the home invasion while at

Drake’s house, and at that time, Reese admitted he and others had taken a

white Buick Rendezvous, a long gun, and some women’s jewelry during the

home invasion. Id. at 75-76. Redmon had seen some of the stolen jewelry and

also observed the white Buick on Spann Avenue, where Reese stayed with

Cherry, Cosand, and Randolph. Id. at 75-76.

[17] During the search of the storage unit, police discovered multiple items

belonging to the McCarters, including a blue tub containing Terry’s tools, a

money box, a wooden drawer that had been pulled from a piece of furniture

inside the McCarters’ home, a clock, a box of several cameras, and mail

addressed to the McCarters. Id. at 39, 47-50, 84-88. The police later searched

Reese’s truck and found Terry’s .223 caliber bolt action rifle in the backseat. Id.

at 34, 83.

[18] During the searches of the Spann Avenue house and garage, the police found

two cell phones, one belonging to Randolph and one to Cosand. Tr. Vol. 2 at

214, 232-33. After obtaining a search warrant for Randolph’s phone, police

downloaded the contents of the phone using a program called Oxygen

Forensics and found contact information for a “Justin,” with number 317-515-

0876, “Paul,” with number 317-495-5083, and “Drake” with number 317-378-

0969, as well as a past search for the terms “couple held at gunpoint for an hour

during home invasion near Greencastle” on a local news organization’s

website. Tr. Vol. 3 at 42-44, 47; State’s Exs. 107, 107a, 107b. Cosand’s phone

also contained the same contact information for a “Justin,” a “Drake,” a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 11 of 36 “Daltyn,” and a “Paul.” Tr. Vol. 2 at 233, 250; Tr. Vol. 3 at 2; State’s Exs. 88-90.

The contact information for “Justin” matched a cell phone number that Cherry

had previously provided to state government officials between September 2016

and January 2017. Tr. Vol. 3 at 69; State’s Ex. 37. Hillenburg also confirmed

that Reese’s phone number was 317-495-5083. Tr. Vol. 3 at 58.

[19] The police used the information obtained from these cell phones to obtain a

search warrant for the records connected to Reese’s phone number and for the

phone numbers associated with Cherry and Drake. Id. at 90-95; State’s Exs. 122,

125, 128. The data gathered from Cherry’s phone showed Cherry in the area

around the Spann Avenue address for most of the day on April 1, 2017, then

traveling to Greencastle between 8:25 p.m. and 9:20 p.m. and remaining in

Greencastle until 10 p.m. Tr. Vol. 3 at 115; State’s Ex. 133. Cherry’s phone

remained inactive from 9:56 p.m. on April 1 until the next morning at around

8:49 a.m., at which time, Cherry’s phone showed it as being back in

Indianapolis around Spann Avenue. Tr. Vol. 3 at 115-16; State’s Ex. 133.

Drake’s phone was also in the Indianapolis area for most of the day on April l,

but just before 7:00 p.m., the cell phone data showed Drake was traveling to

Greencastle, arriving just before 8:00 p.m. Tr. Vol. 3 at 116-17; State’s Ex. 133.

Drake’s phone remained active in the Greencastle area from 8:00 p.m. until

2:46 a.m. Tr. Vol. 3 at 117-18; State’s Ex. 133. There was no activity after 2:46

a.m. until 10:00 a.m., at which time, activity showed his phone back in

Indianapolis. Tr. Vol. 3 at 118; State’s Ex. 133. The cell phone data showed that

Reese’s phone was in the Indianapolis area until around 8:12 p.m., and at that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 12 of 36 time, it started traveling to Greencastle, arriving at 8:50 p.m. Tr. Vol. 3 at 118-

19; State’s Ex. 133. Reese’s phone remained active in Greencastle until 3:22

a.m. and showed Reese traveling from Greencastle back to Indianapolis

between 5:25 a.m. and 6:08 a.m. and then remaining in the Indianapolis area

on April 2. Tr. Vol. 3 at 119; State’s Ex. 133. The cell phone records also

established that Cherry and Drake had been communicating with one another

and that Drake and Reese had been communicating with each other. Tr. Vol. 3

at 125.

[20] On August 24, 2017, the State charged Reese with Level 2 felony burglary,

Level 2 felony conspiracy to commit burglary, Level 3 felony armed robbery,

Level 3 felony conspiracy to commit armed robbery, Level 3 felony criminal

confinement, Level 6 felony theft, and Level 6 felony auto theft. Appellant’s

App. Vol. 2 at 2.11 On April 3, 2018, the State amended the two conspiracy

counts and added two counts of Level 3 felony armed robbery and one count of

Level 1 felony burglary; the State also dismissed the originally charged Level 3

felony armed robbery. Id. at 6, 37. On May 11, 2018, the State filed a second

amended information regarding the two conspiracy counts, and on June 7,

2018, the State added a Level 5 felony burglary, Level 6 felony theft, Level 5

felony conspiracy to commit burglary, and Level 6 felony conspiracy to commit

theft. Id. at 2, 7-8, 42.

11 We note that Reese’s Appellant’s Appendix is missing pages 17-35, which according to the Table of Contents should contain the original charging informations and the probable cause affidavit.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 13 of 36 [21] On June 11, 2018, Reese filed a motion to suppress the cell phone records

obtained as a result of the search warrant officers obtained for his phone

number. Appellant’s App. Vol. 3 at 33-40. The trial court denied the motion to

suppress. Id. at 56-59. A jury trial was held on July 16-18, 2018, at which

Reese faced nine counts: Level 2 felony burglary; Level 2 felony conspiracy to

commit burglary; Level 3 felony conspiracy to commit armed robbery; Level 3

felony confinement while armed with a deadly weapon; Level 6 felony theft;

Level 6 felony auto theft; two counts of Level 3 felony armed robbery; and

Level 1 felony burglary. During the trial, Reese objected each time evidence

obtained as a result of the search warrant for his cell phone records was offered,

and the trial court admitted the evidence over Reese’s objection. Tr. Vol. 3 at

95, 109. Reese also objected to the admission of the Oxygen Forensics report

related to the physical search of Randolph’s phone on foundational grounds

and as to reliability, and the trial court overruled the objection. Id. at 45-46. At

the conclusion of the jury trial, Reese was found guilty on all nine counts. Id. at

165. At the sentencing hearing, the trial court imposed an aggregate seventy-

two-year sentence. Reese now appeals.

Discussion and Decision

I. Admission of Evidence [22] Reese argues that the trial court abused its discretion both when it admitted

evidence obtained as a result of the search warrant for cell phone records and

when it admitted the report from Oxygen Forensics regarding contents of his

cell phone. Our standard of review of a trial court’s admission of evidence is an

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 14 of 36 abuse of discretion. Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct. App. 2014),

trans. denied. A trial court abuses its discretion if its decision is clearly against

the logic and effect of the facts and circumstances before the court or if the court

misapplies the law. Id. Even if the trial court’s decision was an abuse of

discretion, we will not reverse if the admission of evidence constituted harmless

error. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App. 2013), trans. denied.

Error is harmless if it does not affect the substantial rights of the defendant. Id.

[23] Reese initially contends that the admission of evidence obtained through the

search warrant for his cell phone records was an abuse of discretion because the

probable cause affidavit in support of the warrant was based on uncorroborated

hearsay. He specifically argues that the affidavit contained statements by an

incarcerated individual and did not contain any indicia of the reliability of this

individual. Reese further asserts that the affidavit contained information from

the execution of a different search warrant and that the affiant was not present

for that search and had no firsthand knowledge of the information.

Additionally, Reese claims that the affidavit contained information from

another officer, and that information was not corroborated because it was not

shown that that officer had actual knowledge of the information. Reese also

maintains that the good faith exception does not apply here because the

information contained in the affidavit was misleading.

[24] “In deciding whether to issue a search warrant, ‘[t]he task of the issuing

magistrate is simply to make a practical, common-sense decision whether, given

all the circumstances set forth in the affidavit . . . there is a fair probability that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 15 of 36 contraband or evidence of a crime will be found in a particular place.’” Jackson

v. State, 908 N.E.2d 1140, 1142 (Ind. 2009) (quoting Illinois v. Gates, 462 U.S.

213, 238 (1983)). The duty of the reviewing court is to determine whether the

magistrate had a “substantial basis” for concluding that probable cause existed.

Id. A substantial basis requires the reviewing court, with significant deference

to the magistrate’s determination, to focus on whether reasonable inferences

drawn from the totality of the evidence support the determination of probable

cause. Id. (citing Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997)). “Although we

review de novo the trial court’s substantial basis determination, we nonetheless

afford ‘significant deference to the magistrate’s determination’ as we focus on

whether reasonable inferences drawn from the totality of the evidence support

that determination.” Id. (quoting Houser, 678 N.E.2d at 98-99).

[25] Probable cause is a fluid concept, which is decided based on the facts of each

case. Hurst v. State, 938 N.E.2d 814, 817 (Ind. Ct. App. 2010). Probable cause

to search premises is established when a sufficient basis of fact exists to permit a

reasonably prudent person to believe that a search of those premises will

uncover evidence of a crime. Id. Indiana Code section 35-33-5-2(b) requires

that when a warrant is based on hearsay, the affidavit must either: “(1) contain

reliable information establishing the credibility of the source and of each of the

declarants of the hearsay and establishing that there is a factual basis for the

information furnished; or (2) contain information that establishes that the

totality of the circumstances corroborates the hearsay.” The trustworthiness of

hearsay for the purpose of proving probable cause can be established in a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 16 of 36 number of ways, including where: (1) the informant has given correct

information in the past; (2) independent police investigation corroborates the

informant’s statements; (3) some basis for the informant’s knowledge is

demonstrated; or (4) the informant predicts conduct or activity by the suspect

that is not ordinarily easily predicted. Bradley v. State, 4 N.E.3d 831, 840-41

(Ind. Ct. App. 2014), trans. denied. These examples, however, are not exclusive,

and, depending on the facts, other considerations may factor in when

establishing the reliability of the informant or the hearsay. Id. at 841.

[26] Reese contends that statements made by Officer Matthew McFadden12 (“Officer

McFadden”) regarding Reese being a known associate of Randolph and known

to frequent the Spann Avenue residence where Randolph and Cherry lived were

uncorroborated hearsay. He also takes issue with evidence that was found

when the search was conducted at Reese’s storage unit because the affiant was

not present. However, the affiant was allowed to rely on this information under

the collective or imputed knowledge doctrine. Under that doctrine, “an arrest

or search is permissible where the actual arresting or searching officer lacks the

specific information to form the basis for probable cause or reasonable suspicion

but sufficient information to justify the arrest or search was known by other law

enforcement officials initiating or involved with the investigation.” State v.

Gray, 997 N.E.2d 1147, 1153 (Ind. Ct. App. 2013), trans. denied. “So long as

12 No relation to Putnam County Sheriff’s Department Detective Patrick McFadden.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 17 of 36 fellow officers applying for a search warrant collectively have probable cause,

‘their individual knowledge can be imputed to the officer signing the affidavit in

support of the search warrant.’” McGrath v. State, 95 N.E.3d 522, 530 (Ind.

2018) (quoting Utley v. State, 589 N.E.2d 232, 236 (Ind. 1992), cert, denied, 506

U.S. 1058 (1993)). The collective-knowledge doctrine presumes a fellow

officer’s credibility, and, therefore, no special showing of reliability need be

made as a part of the probable cause determination. Id.

[27] Here, prior to the probable cause affidavit being filed, Officer McFadden had

been engaged in an investigation of Reese as a suspect in the present offense;

therefore, the statement attributed to him in the probable cause affidavit did not

need to be independently corroborated to be relied upon as credible information

supporting probable cause. As to the evidence discovered as a result of the

search of the storage unit, the search was conducted by law enforcement

pursuant to a valid search warrant supported by probable cause. This evidence

and information gained by other officers could be imputed to the affiant in

signing the affidavit in support of the search warrant for cell phone records. No

special showing of reliability was needed.

[28] Reese also takes issue with information included in the affidavit, which was

gained from an informant who was incarcerated at the time he provided

information to the police. Michael Hostetter (“Hostetter”) was inside the

Spann Avenue house, where Randolph and Cherry lived, when the search

warrant was executed on that house and items stolen from the McCarter

residence as well as gloves similar to those one of the perpetrators wore were

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 18 of 36 found. Appellant’s App. Vol. 3 at 42. After the search occurred, Randolph, who

would have known that items stolen in the burglary had been collected by the

police, told Hostetter about the burglary of the McCarters and that Reese and

Drake, as well as Randolph, were at the McCarter burglary. Id. Hostetter later

provided this information to the police. Id. The police later searched Reese’s

storage unit and found mail addressed to the McCarters inside the storage unit.

Id. at 43. The timing of Randolph’s disclosure to Hostetter, as well as the fact

that items stolen from the McCarters during the burglary were found in

Randolph’s house and in Reese’s storage unit, connecting those two to the

burglary, sufficiently corroborated the statements Hostetter made to the police

that implicated Reese and Randolph in the crimes; therefore, the totality of the

circumstances sufficiently corroborated Hostetter’s hearsay statements.

[29] Moreover, even if the search warrant affidavit was defective, the exclusion of

the evidence is not necessary if the officers acted in good faith when relying

upon the search warrant. “Exclusion of evidence recovered pursuant to a

search warrant issued by a judge or magistrate is not required when the officer

obtaining the warrant has acted in objective good faith and within the scope of

the warrant.” Gerth v. State, 51 N.E.3d 368, 375 (Ind. Ct. App. 2016) (citing

United States v. Leon, 468 U.S. 897, 920 (1984)). The good faith exception to the

warrant requirement was created in large part because of the practical reality

that once a neutral and detached magistrate has issued a search warrant, “‘there

is literally nothing more the policeman can do in seeking to comply with the

law.’” Jackson, 908 N.E.2d at 1144 (quoting Figert v. State, 686 N.E.2d 827, 832-

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 19 of 36 33 (Ind. 1997) (quoting Leon, 468 U.S. at 921)). Officers are required to have a

reasonable knowledge of what the law prohibits, but “imposing on officers the

obligation to second guess a magistrate’s decision in all but the most obvious

instances of an affidavit lacking an indicia of probable cause is not a burden the

law anticipates.” Id. The good faith exception will not apply if the warrant was

based on false information knowingly or recklessly supplied or if the affidavit or

sworn testimony upon which probable cause rests is so lacking in indicia of

probable cause as to render an official belief in the existence of the warrant

unreasonable. Hoop v. State, 909 N.E.2d 463, 470-71 (Ind. Ct. App. 2009), trans.

denied.

[30] Reese contends that the good faith exception does not apply here because the

information in the affidavit was misleading because it stated that the affiant

found a phone number for “Paul Reese” on a cell phone determined to belong

to Cosand. Appellant’s App. Vol. 2 at 42. Reese asserts this information was

false because the affiant did not find a phone number for Paul Reese on

Cosand’s cell phone; he found three numbers for “Paul” on the contacts of

Cosand’s cell phone. The statement by the affiant was not factually inaccurate,

however, because Hillenburg had confirmed that one of the numbers for “Paul”

found in Cosand’s cell phone contact list belonged to Reese before the affidavit

was written.13 Tr. Vol. 3 at 2-4, 23; Appellant’s App. 3 at 42-43. Further, the

13 By the time the affidavit was submitted, the police had already learned that Hillenburg had pawned the stolen bracelets and that she and Reese shared a storage unit which the police had already searched. Tr. Vol. 3 at 2-4, 23; Appellant’s App. Vol. 3 at 43.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 20 of 36 affiant’s omission of the fact that there were three numbers listed for “Paul” is

irrelevant. The lack of this information does not make it any less true that the

number for which the affiant sought a search warrant belonged to Reese. We,

therefore, conclude that the good faith exception could apply. The trial court

did not abuse its discretion in admitting the evidence obtained through the

search warrant for Reese’s cell phone records because the warrant was

supported by probable cause, and even if it was not, the good faith exception

applied.

[31] Reese next argues that the trial court abused its discretion when it allowed the

Oxygen Forensics report to be admitted at trial. He contends that the report

should not have been admitted because Detective Darren Chandler (“Detective

Chandler”) did not meet the requirements for the admission of expert testimony

under Indiana Evidence Rule 702. Specifically, Reese claims that the State

failed to establish the foundation and reliability necessary to admit the report.

[32] Reese failed to preserve this issue for appeal. At trial, Detective Chandler

testified that he recovered a cell phone belonging to Randolph during the search

of the garage at 3835 Spann Avenue, that he obtained a search warrant to

conduct a forensic examination of the contents of the phone, and that he

“hooked” the phone up to the Oxygen Forensics computer program to pull data

from the phone. Tr. Vol. 3 at 42. Detective Chandler then testified that data

pulled from the phone showed that Randolph’s phone contained contacts for

“Justin,” “Paul,” and “Drake,” along with their respective phone numbers. Id.

at 43. Detective Chandler also stated that the phone had been activated on

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 21 of 36 April 3, 2017, and several days later, a Google search was performed searching

for information about a home invasion in Putnam County. Id. at 43-44. Reese

did not object to any of this testimony regarding the data obtained from the

phone using the Oxygen Forensics program. Id. 42-44. He only objected when

the State moved to admit the printed report containing the information about

which Detective Chandler had already testified, contending that the State had

failed to establish that the program was reliable or accurate. Id. 45-46.

Therefore, at the time Reese objected, the information of evidentiary value from

the report had already been admitted through Detective Chandler’s testimony.

A defendant must make a contemporaneous objection at the time the evidence

is introduced to preserve a claim of evidentiary error for purposes of appeal.

Laird v. State, 103 N.E.3d 1171, 1175 (Ind. Ct. App. 2018), trans. denied.

Because he failed to do so, we conclude that Reese has waived this issue on

appeal.

[33] Moreover, even if the admission of the Oxygen Forensics report was error, it

was harmless. We will not reverse a conviction due to evidentiary error unless

that error affects the substantial rights of the defendant. Teague v. State, 978

N.E.2d 1183, 1189 (Ind. Ct. App. 2012). An error is harmless if there is

substantial independent evidence of guilt, and we are satisfied that there is no

substantial likelihood the challenged evidence contributed to the conviction. Id.

[34] Substantial independent evidence was presented to establish that Reese

committed the crimes for which he was convicted. Hours after the burglary was

committed, a dually truck, which was the type of truck suspected of making the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 22 of 36 tire tracks found in the McCarters’ yard, was observed on surveillance footage

entering the storage facility, where Reese had a storage unit, by using Reese’s

PIN code. Tr. Vol. 2 at 193-95; Tr. Vol. 3 at 11-14, 54. Reese was also seen on

surveillance footage at the storage unit facility wearing clothing that matched

the description of clothing worn by the men who committed the burglary. Tr.

Vol. 3 at 14-15, 85. Multiple items stolen from the McCarters’ residence during

the burglary were found inside of Reese’s storage unit, including a blue tub

containing Terry’s tools, a money box, a wooden drawer from a piece of

furniture, a clock, a box of several cameras, and mail addressed to the

McCarters. Id. at 39, 47-50, 84-88. Only Reese and Hillenburg had access to

the storage unit, and she testified that she had only been there about five times.

Id. at 55, 61. When officers arrived to search the storage unit, Reese attempted

to run over and flee from the officers, which showed consciousness of guilt. Id.

at 24. After Reese’s truck was stuck, he called his girlfriend during the ensuing

standoff and told her he was going to kill himself because he had been caught.

Id. at 73, 76. Reese’s truck was searched when he was arrested, and one of

Terry’s stolen rifles was found in the backseat. Id. at 33-34, 83.

[35] Evidence was also presented that Reese stayed at 3835 Spann Avenue with

Cherry, who was linked to the burglary through prints from his boots, and

where police found items of clothing matching the description of those worn by

the perpetrators as well as items stolen from the McCarters’ home. Tr. Vol. 2 at

214, 231-32, 235-37, 241, 246-47; Tr. Vol. 3 at 71-72, 76. Furthermore, the

McCarters’ Buick Rendezvous was seen near and recovered from 3835 Spann

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 23 of 36 Avenue. Tr. Vol. 2 at 210-11, 224. Reese had also given jewelry stolen from the

McCarters to Hillenburg to pawn. Tr. Vol. 3 at 55-56. Further, Reese confessed

to his girlfriend that he was involved in the home invasion and discussed

several items that they had stolen, including the Buick Rendezvous, jewelry,

and a long gun. Id. at 75-76. Additionally, the challenged Oxygen Forensics

report was mostly cumulative of other properly admitted evidence that Reese

does not challenge on appeal. A cell phone belonging to Cosand was recovered

during the search of 3835 Spann Avenue, and that phone was also searched and

contained the same contact information for “Justin,” “Drake,” and “Paul” that

was found on Randolph’s phone. Tr. Vol. 2 at 233; Tr. Vol. 3 at 2. See Hunter v.

State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017) (“The improper admission of

evidence is harmless error when the erroneously admitted evidence is merely

cumulative of other evidence before the trier of fact.”), trans. denied. The

Google search for a news story on the burglary by Randolph had no bearing on

Reese’s guilt. Based on the substantial independent evidence presented in

support of Reese’s convictions, we conclude that the admission of the Oxygen

Forensics report, if error, was harmless.

II. Sufficient Evidence [36] Reese argues that the evidence presented at trial was insufficient to support his

convictions. When we review the sufficiency of evidence to support a

conviction, we do not reweigh the evidence or assess the credibility of the

witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.

denied. We consider only the evidence most favorable to the verdict and the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 24 of 36 reasonable inferences that can be drawn from that evidence. Fuentes v. State, 10

N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied. We also consider conflicting

evidence in the light most favorable to the trial court’s ruling. Oster v. State, 992

N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied. We will not disturb the

verdict if there is substantial evidence of probative value to support it. Fuentes,

10 N.E.3d at 75. We will affirm unless no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt. Delagrange v. State, 5

N.E.3d 354, 356 (Ind. 2014). A conviction can be sustained on only the

uncorroborated testimony of a single witness, even when that witness is the

victim. Dalton v. State, 56 N.E.3d 644, 648 (Ind. Ct. App. 2016), trans. denied.

[37] Reese first contends that the evidence was insufficient to support his convictions

because neither of the McCarters could identify him as one of the perpetrators.

He asserts that the four men who broke into the McCarters’ home wore masks

and gloves, and neither Terry nor Patsy could identify any of the four.

[38] Identity may be established entirely by circumstantial evidence and the logical

inferences drawn therefrom. Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App.

2016), trans. denied. Identification testimony need not necessarily be

unequivocal to sustain a conviction. Id. “When the evidence of identity is not

entirely conclusive, the weight to be given to the identification evidence is left to

the determination of the jury, as determining identity is a question of fact.”

Harbert v. State, 51 N.E.3d 267, 275 (Ind. Ct. App. 2016) (citing Whitt v. State,

499 N.E.2d 748, 750 (Ind. 1986)), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 25 of 36 [39] As previously stated, evidence was presented that the driver of a similar truck to

that used in the burglary used Reese’s PIN number to enter Reese’s storage unit

hours after the burglary, and numerous stolen items were discovered in that

unit. Surveillance footage showed Reese wearing similar clothing to that of the

perpetrators in the robbery shortly after the crimes occurred. One of Terry’s

stolen rifles was found in the backseat of Reese’s truck. Reese stayed at 3835

Spann Avenue with the others implicated in the burglary, and items of clothing

similar to those worn by the perpetrators and numerous stolen items from the

burglary were found at that address. Reese gave jewelry stolen during the

burglary to Hillenburg to pawn. Additionally, Reese’s cell phone records

showed that between 8:12 and 8:50 p.m., his cell phone traveled from

Indianapolis to Greencastle, where the McCarters lived, his phone remained

active in Greencastle until 3:22 a.m., and Reese traveled from Greencastle back

to Indianapolis between 5:25 and 6:08 a.m. Tr. Vol. 3 at 118-19; State’s Ex. 133.

Furthermore, Reese confessed that he was involved in the burglary to his

girlfriend. Even though the McCarters were not able to identify Reese,

sufficient evidence was presented to establish that Reese was one of the men

who committed the burglary.

[40] Reese next argues that the State failed to present sufficient evidence to support

his convictions for conspiracy to commit burglary and conspiracy to commit

armed robbery. Specifically, he asserts that insufficient evidence was presented

to establish an agreement between him and Cherry, Randolph, or Drake to

support a criminal conspiracy. Reese contends that none of the men testified,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 26 of 36 and the only evidence of an agreement were phone calls between cell phones,

which he maintains was not sufficient.

[41] Reese was convicted of both conspiracy to commit burglary and conspiracy to

commit armed robbery. “A person conspires to commit a felony when, with

intent to commit the felony, the person agrees with another person to commit

the felony.” Ind. Code § 35-41-5-2(a). The State must also prove that “the

person or the person with whom he or she agreed performed an overt act in

furtherance of the agreement.” I.C. § 35-41-5-2(b). Therefore, in order to

convict Reese of the two conspiracy charges, the State was required to prove

that he agreed with Cherry, Randolph, or Drake to break and enter into the

McCarters’ home with the intent to commit theft or a felony inside and to take

property from the McCarters by using or threatening the use of force while

armed with a deadly weapon. I.C. §§ 35-43-2-1, 35-42-5-1.

[42] The State is not required to prove the existence of an express agreement, but

there must be enough evidence to infer an agreement. Purvis v. State, 87 N.E.3d

1119, 1126 (Ind. Ct. App. 2017) (citing Kemper v. State, 35 N.E.3d 306, 310

(Ind. Ct. App. 2015), trans. denied). “‘It is sufficient if the minds of the parties

meet understandingly to bring about an intelligent and deliberate agreement to

commit the offense.’” Porter v. State, 715 N.E.2d 868, 870-71 (Ind. 1999)

(quoting Williams v. State, 274 Ind. 94, 96, 409 N.E.2d 571, 573 (1980)). The

agreement may be proved by either direct or circumstantial evidence. Id. at

871. However, mere association with the co-conspirator, standing alone, is

insufficient to support a conviction for conspiracy. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 27 of 36 [43] Here, the men’s actions upon entering the McCarters’ residence showed that

they had entered into an agreement to burglarize and rob the McCarters.

Immediately after gaining entrance into the home by breaking the glass door,

one man, while armed with a weapon, forced Terry to the ground, and the

other three men then entered and began ransacking the house. One of those

three men went to the bedroom, pointed a gun at Patsy, and told her, “You’re

going to be robbed.” Tr. Vol. 2 at 170. While these two men confined the

McCarters, the other two men methodically went through the McCarters’

home, garage, and barn, ransacking the area and taking numerous items.

Afterwards, the men ordered both Terry and Patsy into the sunroom, and after

threatening Patsy and hitting Terry in the head with a gun, the men locked the

McCarters in the room and left. The actions of the men while in the

McCarters’ home showed that they had formulated a plan as to how to divide

their efforts while in the home which supports the conclusion that there was an

agreement between the men to commit the crimes of burglary and armed

robbery.

[44] Further, the cell phone records which were admitted at trial also supported this

conclusion. Based on cell phone tower data taken from April 1, 2017 and the

morning of April 2, when the burglary occurred, Reese, Cherry, and Drake

traveled from Indianapolis to Greencastle in different intervals at various times

in the evening. Tr. Vol. 3 at 115-19; State’s Ex. 133. The cell phone evidence

also showed that there were communications between Reese and the other two

men in the hours leading up to the burglary; the records showed that Cherry

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 28 of 36 and Drake had been communicating with one another and that Drake and

Reese had been communicating with each other during that time period. Tr.

Vol. 3 at 125; State’s Exs. 123, 126, 129. Based on the actions of the men while

committing the burglary and armed robbery and the cell phone records, we

conclude that the jury could infer that Reese had agreed with either Cherry,

Randolph, or Drake to commit the crimes of burglary and armed robbery.

Sufficient evidence was presented to support Reese’s convictions for conspiracy

to commit burglary and conspiracy to commit armed robbery.

III. Double Jeopardy [45] Reese argues that several of his nine convictions violate the prohibition against

double jeopardy. The Fifth Amendment to the United States Constitution

provides, “No person shall be subject for the same offence to be twice put in

jeopardy of life or limb.” Article 1, Section 14 of the Indiana Constitution sets

forth that “[n]o person shall be put in jeopardy twice for the same offense.”

[46] Under the federal constitution, multiple convictions will not be precluded if

each statutory offense requires proof of an additional fact which the other does

not. Robinson v. State, 835 N.E.2d 518, 522 (Ind. Ct. App. 2005) (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)). The Indiana Supreme

Court has developed a two-part test for Indiana double jeopardy claims, holding

that two or more offenses are the “same offense” in violation of Article 1,

Section 14, if, with respect to either the statutory elements of the challenged

crimes or the actual evidence used to convict, the essential elements of one

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 29 of 36 challenged offense also establish the essential elements of another challenged

offense. Sharp v. State, 951 N.E.2d 282, 286 (Ind. Ct. App. 2011) (citing

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Under the “statutory

elements test,” multiple convictions will not be precluded if each statutory

offense requires proof of an additional fact which the other does not. Id. (citing

Robinson, 835 N.E.2d at 522). We look only to the statutory elements of the

offenses in making this analysis. Id. Under the “actual evidence test,” the

evidence presented at trial is examined to determine whether each challenged

offense was established by separate and distinct facts. Lee v. State, 892 N.E.2d

1231, 1234 (Ind. 2008). To show that two challenged offenses constitute the

“same offense,” a defendant must demonstrate a reasonable possibility that the

evidentiary facts used by the factfinder to establish the essential elements of one

offense may also have been used to establish the essential elements of a second

challenged offense. Sharp, 951 N.E.2d at 287. “Application of this test requires

the court to identify the essential elements of each of the challenged crimes and

to evaluate the evidence from the factfinder’s perspective.” Id.

[47] Reese contends that his conviction for both Level 1 felony burglary and Level 2

felony burglary violate the double jeopardy prohibition. The State concedes

that these two convictions were improper because Level 2 felony burglary is a

lesser included offense of Level 1 felony burglary. See Ind. Code § 35-38-1-6

(“Whenever: (1) a defendant is charged with an offense and an included

offense in separate counts; and (2) the defendant is found guilty on both counts;

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 30 of 36 judgment and sentence may not be entered against the defendant for the

included offense.”).

[48] Reese also argues that his convictions for Level 2 felony conspiracy to commit

burglary and Level 3 felony conspiracy to commit armed robbery violate double

jeopardy under the actual evidence test because the two convictions rely on the

same evidence. The State also concedes that Reese’s convictions for both Level

2 felony conspiracy to commit burglary and Level 3 felony conspiracy to

commit armed robbery violate the double jeopardy prohibition because at trial

the State relied on same facts to establish both conspiracies.

[49] When a double jeopardy violation has occurred, the “reviewing court may

remedy the violation by reducing either conviction to a less serious form of the

same offense if doing so will eliminate the violation.” Thompson v. State, 82

N.E.3d 376, 383 (Ind. Ct. App. 2017) (citing Richardson, 717 N.E.2d at 54),

trans. denied. However, if doing so will not eliminate the violation, one of the

convictions must be vacated. Id. Reducing Reese’s convictions will not

eliminate the double jeopardy violations, so we must vacate Reese’s convictions

for Level 2 felony burglary and Level 3 felony conspiracy to commit armed

robbery since they are the convictions with lesser penal consequences. Vacating

these convictions and the corresponding sentences does not affect Reese’s

aggregate seventy-two-year sentence because the sentences for Level 2 felony

burglary and Level 3 felony conspiracy to commit armed robbery were ordered

to run concurrently with, and were lesser sentences than, the sentences for the

Level 1 felony burglary conviction and the two Level 3 felony armed robbery

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 31 of 36 convictions, which are the three sentences that comprise the seventy-two-year

aggregate sentence. Appellant’s App. Vol. 3 at 64; Tr. Vol. 3 at 172.14

IV. Inappropriate Sentence [50] Reese asserts that his seventy-two-year aggregate sentence is inappropriate.

Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

[c]ourt finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Our Supreme Court has explained

that the principal role of appellate review should be to attempt to leaven the

outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the

nature of Reese’s offense and his character under Appellate Rule 7(B) with

substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d

344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether

the defendant’s sentence is appropriate or if another sentence might be more

appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.

State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a

sentence is inappropriate ultimately depends upon “the culpability of the

defendant, the severity of the crime, the damage done to others, and a myriad

14 Reese also argues that his convictions for two counts of armed robbery and his conviction for conspiracy to commit armed robbery violate double jeopardy. However, this argument is rendered moot because we have vacated Reese’s conviction for Level 3 felony conspiracy to commit armed robbery.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 32 of 36 of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at

1224. Reese bears the burden of persuading us that his sentence is

inappropriate. Id.

[51] Initially, we note that, although he argues that his aggregate sentence of

seventy-two years executed is inappropriate because it constitutes a sentence for

the “substantial balance of his life,” Appellant’s Br. at 38, Reese has not

undertaken an analysis of why his sentence is inappropriate in light of the

nature of the offense and his character as is required under Appellate Rule 7(B).

He has therefore, waived this argument for failure to present a cogent

argument. Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015), trans.

denied. Although Reese has waived is inappropriateness argument, we will

proceed to address this issue on the merits.

[52] As this court has recognized, the nature of the offense is found in the details

and circumstances of the commission of the offense and the defendant’s

participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, Reese

and his co-conspirators broke and entered the home of the McCarters, who

were both over the age of sixty-five, robbed them at gunpoint, destroyed their

home, and stole multiple items. After ransacking the house, the perpetrators

ordered the McCarters into the sunroom, where they threatened Patsy by

pointing a gun at her head, and then hit Terry in the head with the butt of a

gun, which caused severe injury that required surgery to relieve pressure on

Terry’s brain. The actions by Reese and his co-conspirators caused extensive

damage to the McCarters’ home. They ransacked the inside of the home,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 33 of 36 destroying many pieces of furniture, paintings, and other items that they did not

steal. Patsy testified that the furniture in their living room was covered in glass

shards and had to be thrown away. Tr. Vol. 2 at 178. The men stole Patsy’s

lifetime collection of jewelry, which included items of little monetary value but

great sentimental value to her that can never be replaced because they were

from her deceased mother. Id. at 170. The men also stole numerous other

items and $6,000 in cash that will never be returned to the McCarters. Reese’s

crimes caused physical harm and significant financial loss to the McCarters as

well as undermining their sense of security. We do not find that Reese’s

sentence is inappropriate in light of the nature of his offense.

[53] The character of the offender is found in what we learn of the offender’s life and

conduct. Perry, 78 N.E.3d at 13. When considering the character of the

offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence presented at the

sentencing hearing showed that Reese has an extensive criminal history. His

criminal activity began when he was a juvenile with adjudications for

conversion, criminal mischief, and possession of marijuana. Appellant’s App.

Vol. 4 at 5-6. As an adult, before committing the present crimes, Reese had

been convicted of Class A misdemeanor resisting law enforcement, Class A

misdemeanor possession of marijuana, and Class A misdemeanor invasion of

privacy. Id. at 7-8. He also had convictions for Level 6 felony criminal

recklessness committed with a deadly weapon and Level 6 felony domestic

battery. Id. After he committed the instant offenses, Reese committed and was

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 34 of 36 convicted twice for Level 6 felony resisting law enforcement, Level 5 felony

carrying a handgun with a felony conviction, and Class A misdemeanor

unlawful possession of a firearm by a domestic batterer. Id. at 9. At the time of

sentencing, Reese also had two pending cases, one where he had been arrested

and charged with Level 2 felony dealing in methamphetamine, Level 3 felony

possession of methamphetamine, Level 5 felony carrying a handgun with a

felony conviction, and Level 5 felony possession of a narcotic drug, and one

where he had been arrested and charged with Level 2 felony burglary with a

deadly weapon, Level 3 felony robbery, Level 3 felony criminal confinement,

Level 5 felony corrupt business influence, and Level 6 felony auto theft. Id. at

8-9. This criminal history shows that, rather than being deterred by his past

interactions with the criminal justice system, Reese has continued to commit

new crimes, many of which were still pending at the time he was sentenced in

the present case. We do not find that Reese’s sentence is inappropriate in light

of his character. We, therefore, conclude that Reese’s aggregate seventy-two-

year sentence in not inappropriate.

[54] In conclusion, we find that the trial court did not abuse its discretion in

admitting the evidence obtained as a result of the search warrant for Reese’s cell

phone records. We also conclude that, even if it was error for the trial court to

admit the Oxygen Forensics report, it was harmless error. We also find that

sufficient evidence was presented to establish that Reese was one of the men

who committed the burglary and to support Reese’s convictions for conspiracy

to commit burglary and conspiracy to commit armed robbery. Reese’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 35 of 36 convictions for Level 2 felony burglary and Level 3 felony conspiracy to

commit armed robbery violated the double jeopardy prohibition, and we reverse

those convictions and remand to the trial court to vacate. However, vacating

those two convictions does not alter Reese’s aggregate sentence of seventy-two

years, and we do not find his sentence to be inappropriate in light of the nature

of the offense and character of the offender.

[55] Affirmed in part, reverse in part, and remanded with instructions.

Vaidik, C.J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 36 of 36