MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 27 2016, 8:01 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer D. Wilson Reagan Gregory F. Zoeller Wilson & Wilson Attorney General of Indiana Greenwood, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Philip P. Fletcher, May 27, 2016 Appellant-Defendant, Court of Appeals Case No. 41A01-1509-CR-1362 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Lance D. Hamner Appellee-Plaintiff Trial Court Cause No. 41D03-1308-FC-00075
Mathias, Judge.
[1] Philip Fletcher (“Fletcher”) was convicted in Johnson Superior Court for Class
D Felony attempted theft. Fletcher appeals and argues that his conviction is not
supported by sufficient evidence.
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 1 of 7 [2] We affirm.
Facts and Procedural History
[3] On January 26, 2012, Kelley Leach (“Leach”) returned to her home after work
and found that someone had broken into her house. Tr. p. 15. Upon entering
her house, Leach discovered a camouflage ski mask on the floor that did not
belong to her. Id. at 16. Also, her bedroom “was pretty torn up and things were
in disarray.” Id. Alarmed, Leach called the police. Id.
[4] Officer Renee Elliot (“Officer Elliot”) of the Greenwood Police Department
arrived shortly thereafter. Id. at 17. She discovered that several items were taken
out of Leach’s jewelry box. Id. at 31. Officer Elliot observed a tire iron on
Leach’s dining room table about five or six feet away from the ski mask. Id. at
18. The tire iron belonged to Leach, but she had not placed it on the dining
room table. She kept the tire iron in the back of her 1997 Ford Explorer. Id. at
18–19.
[5] Leach then checked the trunk of her Explorer, which was parked in a barn on
her property. Id. The Explorer’s back tailgate was unlatched. Id. at 19. When
Leach opened the back, she noticed that a blanket was gone and that items she
left on the back seat were now on the vehicle’s floor. Id. at 21. Leach testified at
trial that she had the only set of keys for the truck and that no one else had
driven the truck near the time of the crime. Id. at 176, 178.
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 2 of 7 [6] Leach went back into the house to tell Officer Elliot that someone broke into
her truck. Id. at 23. Then, Leach and Officer Elliot returned to the barn to
further inspect the truck. Id. They found that the steering column had been
broken open, the ignition was broken, and the car battery was dead. Id. at 23–
24. Notably, the Explorer was in “full working condition” before Leach left for
work that morning. Id. Leach and Officer Elliot also found a long, metal, silver
rod lying on the passenger seat that did not belong to Leach. Id. at 24–25.
Officer Elliot took photos of the home and the Explorer and recorded Leach’s
statement. Id. at 19, 25–26.
[7] On January 30, 2012, Detective Jay Arnold (“Detective Arnold”) called Leach
to follow-up on the January 26th incident. Id. at 47. After asking Leach if she
had any new evidence to report, she replied that she found dried blood on the
Explorer’s dashboard. Id. at 48. Leach reported that no one had been in the
truck since she and Officer Elliot inspected it a few days prior and that the
blood was not there the last time she drove the car. Id. at 26, 177. Further,
Leach stated that the Explorer was in the same condition as when Officer Elliot
inspected it. Id. at 26–27.
[8] Detective Arnold and a Greenwood Police Department Evidence Technician,
Eric Lowe (“Lowe”), went to Leach’s house to further inspect the scene. Id. at
48–49. Detective Arnold identified a dry spot of blood on the steering column
next to the ignition, although he could not tell how long the blood had been
there. Id. at 49, 82. Lowe collected a sample of the blood. Along with hairs from
the ski mask, the blood was submitted for DNA analysis. Id. at 51, 181. Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 3 of 7 [9] After running searches for a DNA match for almost a year, the DNA lab
received a Combined DNA Index System (CODIS) hit that matched the blood
swab to Fletcher’s DNA profile. Id. at 53. Along with the match, the hit
provided Detective Arnold with Fletcher’s Department of Correction (“DOC”)
number. Id. Using that number, Detective Arnold determined that Fletcher was
incarcerated in the Edinburgh Correctional Facility for one or more crimes
unrelated to the instant case. Id. at 55–56. To confirm the CODIS hit, Detective
Arnold executed a search warrant and collected Fletcher’s DNA using a cotton
cheek swab. Id. at 56, 61–62.
[10] When Detective Arnold returned to the Greenwood Police Department, he
transferred Fletcher’s DNA sample into an evidence locker. Id. at 63. The
sample was transferred to the Indiana State Police Lab on June 7, 2013, for
analysis. Id. at 63, 94. On June 28, 2013, Detective Arnold received a report
stating that Fletcher’s DNA sample matched the blood sample from Leach’s
truck and the hairs from the ski mask. See id. at 63– 64, 67, 128. The report
stated that Fletcher was the source of the DNA in both samples “to a
reasonable degree of scientific certainty.” Id. at 128.
[11] Fletcher was arrested and charged with Class C felony burglary on August 7,
2013. Id. at 65, 68; Appellant’s App. p. 3. The State filed its Motion to Amend
the Information on April 27, 2015, which substituted an attempted theft charge
for the burglary charge. Appellant’s App. p. 33. A bench trial was held that
same day. Id. at 6. At the bench trial, Fletcher was convicted of Class D felony
attempted theft. At the sentencing hearing on August 20, 2015, Fletcher was
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 4 of 7 sentenced to 730 days in the Indiana Department of Correction with one day of
jail credit time, 180 days suspended to probation, $250.00 in restitution, and
$183.00 in court costs.
[12] Fletcher now appeals, claiming that the State produced insufficient evidence to
support his conviction. Specifically, Fletcher points to the following: his blood
was not found in the Explorer until a few days after the initial investigation; he
has an alternative explanation for why his blood was in Leach’s truck; the
police did not investigate all discovered DNA profiles; and the DNA was not
refrigerated in the Greenwood Police Department. Id. at 10, 12.
Standard of Review
[13] When a party challenges the sufficiency of the evidence, we neither reweigh the
evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d
124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005)), trans denied. Rather, we recognize the exclusive province of the
trier of fact to weigh any conflicting evidence and we consider only the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 27 2016, 8:01 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer D. Wilson Reagan Gregory F. Zoeller Wilson & Wilson Attorney General of Indiana Greenwood, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Philip P. Fletcher, May 27, 2016 Appellant-Defendant, Court of Appeals Case No. 41A01-1509-CR-1362 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Lance D. Hamner Appellee-Plaintiff Trial Court Cause No. 41D03-1308-FC-00075
Mathias, Judge.
[1] Philip Fletcher (“Fletcher”) was convicted in Johnson Superior Court for Class
D Felony attempted theft. Fletcher appeals and argues that his conviction is not
supported by sufficient evidence.
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 1 of 7 [2] We affirm.
Facts and Procedural History
[3] On January 26, 2012, Kelley Leach (“Leach”) returned to her home after work
and found that someone had broken into her house. Tr. p. 15. Upon entering
her house, Leach discovered a camouflage ski mask on the floor that did not
belong to her. Id. at 16. Also, her bedroom “was pretty torn up and things were
in disarray.” Id. Alarmed, Leach called the police. Id.
[4] Officer Renee Elliot (“Officer Elliot”) of the Greenwood Police Department
arrived shortly thereafter. Id. at 17. She discovered that several items were taken
out of Leach’s jewelry box. Id. at 31. Officer Elliot observed a tire iron on
Leach’s dining room table about five or six feet away from the ski mask. Id. at
18. The tire iron belonged to Leach, but she had not placed it on the dining
room table. She kept the tire iron in the back of her 1997 Ford Explorer. Id. at
18–19.
[5] Leach then checked the trunk of her Explorer, which was parked in a barn on
her property. Id. The Explorer’s back tailgate was unlatched. Id. at 19. When
Leach opened the back, she noticed that a blanket was gone and that items she
left on the back seat were now on the vehicle’s floor. Id. at 21. Leach testified at
trial that she had the only set of keys for the truck and that no one else had
driven the truck near the time of the crime. Id. at 176, 178.
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 2 of 7 [6] Leach went back into the house to tell Officer Elliot that someone broke into
her truck. Id. at 23. Then, Leach and Officer Elliot returned to the barn to
further inspect the truck. Id. They found that the steering column had been
broken open, the ignition was broken, and the car battery was dead. Id. at 23–
24. Notably, the Explorer was in “full working condition” before Leach left for
work that morning. Id. Leach and Officer Elliot also found a long, metal, silver
rod lying on the passenger seat that did not belong to Leach. Id. at 24–25.
Officer Elliot took photos of the home and the Explorer and recorded Leach’s
statement. Id. at 19, 25–26.
[7] On January 30, 2012, Detective Jay Arnold (“Detective Arnold”) called Leach
to follow-up on the January 26th incident. Id. at 47. After asking Leach if she
had any new evidence to report, she replied that she found dried blood on the
Explorer’s dashboard. Id. at 48. Leach reported that no one had been in the
truck since she and Officer Elliot inspected it a few days prior and that the
blood was not there the last time she drove the car. Id. at 26, 177. Further,
Leach stated that the Explorer was in the same condition as when Officer Elliot
inspected it. Id. at 26–27.
[8] Detective Arnold and a Greenwood Police Department Evidence Technician,
Eric Lowe (“Lowe”), went to Leach’s house to further inspect the scene. Id. at
48–49. Detective Arnold identified a dry spot of blood on the steering column
next to the ignition, although he could not tell how long the blood had been
there. Id. at 49, 82. Lowe collected a sample of the blood. Along with hairs from
the ski mask, the blood was submitted for DNA analysis. Id. at 51, 181. Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 3 of 7 [9] After running searches for a DNA match for almost a year, the DNA lab
received a Combined DNA Index System (CODIS) hit that matched the blood
swab to Fletcher’s DNA profile. Id. at 53. Along with the match, the hit
provided Detective Arnold with Fletcher’s Department of Correction (“DOC”)
number. Id. Using that number, Detective Arnold determined that Fletcher was
incarcerated in the Edinburgh Correctional Facility for one or more crimes
unrelated to the instant case. Id. at 55–56. To confirm the CODIS hit, Detective
Arnold executed a search warrant and collected Fletcher’s DNA using a cotton
cheek swab. Id. at 56, 61–62.
[10] When Detective Arnold returned to the Greenwood Police Department, he
transferred Fletcher’s DNA sample into an evidence locker. Id. at 63. The
sample was transferred to the Indiana State Police Lab on June 7, 2013, for
analysis. Id. at 63, 94. On June 28, 2013, Detective Arnold received a report
stating that Fletcher’s DNA sample matched the blood sample from Leach’s
truck and the hairs from the ski mask. See id. at 63– 64, 67, 128. The report
stated that Fletcher was the source of the DNA in both samples “to a
reasonable degree of scientific certainty.” Id. at 128.
[11] Fletcher was arrested and charged with Class C felony burglary on August 7,
2013. Id. at 65, 68; Appellant’s App. p. 3. The State filed its Motion to Amend
the Information on April 27, 2015, which substituted an attempted theft charge
for the burglary charge. Appellant’s App. p. 33. A bench trial was held that
same day. Id. at 6. At the bench trial, Fletcher was convicted of Class D felony
attempted theft. At the sentencing hearing on August 20, 2015, Fletcher was
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 4 of 7 sentenced to 730 days in the Indiana Department of Correction with one day of
jail credit time, 180 days suspended to probation, $250.00 in restitution, and
$183.00 in court costs.
[12] Fletcher now appeals, claiming that the State produced insufficient evidence to
support his conviction. Specifically, Fletcher points to the following: his blood
was not found in the Explorer until a few days after the initial investigation; he
has an alternative explanation for why his blood was in Leach’s truck; the
police did not investigate all discovered DNA profiles; and the DNA was not
refrigerated in the Greenwood Police Department. Id. at 10, 12.
Standard of Review
[13] When a party challenges the sufficiency of the evidence, we neither reweigh the
evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d
124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005)), trans denied. Rather, we recognize the exclusive province of the
trier of fact to weigh any conflicting evidence and we consider only the
probative evidence supporting the conviction and the reasonable inferences to
be drawn therefrom. Id. If there is substantial evidence of probative value from
which a reasonable trier of fact could have drawn the conclusion that the
defendant was guilty of the crime charged beyond a reasonable doubt, then the
judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137
(Ind. Ct. App. 2008).
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 5 of 7 Discussion and Decision
[14] To convict Fletcher of theft, the State was required to prove 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(a). To find that Fletcher attempted to commit theft, the State
was required to that he engaged in “conduct that constitutes a substantial step
toward commission of the crime” and that he “act[ed] with the culpability
required for the commission of the crime.” I.C. § 35-41-5-1(a).
[15] Fletcher argues that the evidence is insufficient to support his conviction
because the State could not show how long the blood stain had been on the
dashboard. Fletcher argues that his blood got onto the dashboard before
January 26, 2012. Id. at 12. A few days before January 26, 2012, Fletcher states
that he helped a man driving Leach’s truck fix the broken ignition switch, and
that his blood must have gotten on the dashboard at this time. Id. Fletcher also
notes that the police only investigated him, even though two other DNA
profiles matched the blood from the crime scene. Id. at 12.
[16] At trial, the State presented evidence that someone tried to steal Leach’s truck;
items within the car were displaced, the car battery was dead, and the steering
column was broken open. Second, the State presented evidence that Fletcher’s
DNA profile matched the blood stain found in the truck. Leach testified at trial
that the blood stain was not there before the incident, that she had the sole set
of keys, and that no one else had driven the truck around January 26, 2012.
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 6 of 7 [17] This evidence supports Fletcher’s attempted theft conviction, and Fletcher’s
arguments are simply a request to reweigh the evidence, which is outside this
court’s province. See Chappell, 966 N.E.2d at 129. For all of these reasons, we
conclude the evidence was sufficient to convict Fletcher of Class D felony
attempted theft.
[18] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A01-1509-CR-1362 | May 27, 2016 Page 7 of 7