Raul Ibarra Serrano v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 24, 2019
• Docket: 18A-CR-2808
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of FILED establishing the defense of res judicata, Jun 24 2019, 8:47 am collateral estoppel, or the law of the CLERK case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Raul Ibarra Serrano, June 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2808 v. Appeal from the Cass Superior Court The Honorable Richard A. State of Indiana, Maughmer, Judge Appellee-Plaintiff. Trial Court Cause No. 09D02-1708-F4-22

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 1 of 9 [1] Raul Ibarra Serrano appeals his convictions for burglary as a level 4 felony and

theft as a level 6 felony. He raises one issue which we restate as whether the

evidence is sufficient to sustain the convictions. We affirm.

Facts and Procedural History

[2] At approximately 6:00 a.m. on August 3, 2017, while it was dark outside,

Edward Zimmerman noticed a dark vehicle, which was turned off, blocking his

driveway in Logansport, Indiana. He observed a person move at a quick pace

from the middle of a two-acre field across the street from his house and enter

the vehicle’s passenger side, and he called 911. Within one or two minutes,

Logansport Police Officer Jason Rozzi arrived at the scene, observed the

vehicle backing up, and activated his emergency lights. Officer Rozzi saw the

driver, recognized him as Jeremy Colon-Nieves, and noticed that he was

sweaty, nervous, and out of breath. He told Colon-Nieves to turn off his

vehicle, and he did so. As Officer Rozzi was obtaining the vehicle’s license

plate information, Colon-Nieves turned the vehicle back on, “floored it and

took off,” and drove through a yard and into the street, and Officer Rozzi

radioed for help and ran to his patrol vehicle. Transcript Volume II at 232.

Colon-Nieves led officers in a vehicular chase at an “extreme high rate of

speed” until his vehicle skidded, struck and bounced over a curb, and came to a

stop. Id. at 234. He and Serrano then exited the vehicle and fled from the

officers on foot, and the officers ultimately apprehended them. The officers

investigated the area near Zimmerman’s home and observed multiple sets of

footprints in the dewy grass which came from the area of the apartments off of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 2 of 9 Maplewood Drive. The footprints ended on the north side of the grassy area,

and police lost the trail north of that point. A detective photographed all of the

items found in Colon-Nieves’s vehicle.

[3] On August 5, 2017, Adriana Jose returned from a vacation to an apartment

which she shared with her three children and boyfriend on Maplewood Drive,

discovered that her apartment door had been kicked in, and called the police.

The apartment complex is located to the north of the field near Zimmerman’s

residence. The items missing from Jose’s apartment included a microwave, two

televisions, an X-Box and games, two laptops, clothes, jewelry, shoes, and two

small tables. 1 A detective showed Jose photographs of items in Colon-Nieves’s

car, and she identified items that had been taken from her apartment. The

detective also observed that an end table which remained in Jose’s apartment

matched the two tables he had photographed.

[4] The State charged Serrano, as amended, with: Count I, burglary as a level 4

felony; Count II, resisting law enforcement as a class A misdemeanor; and

Count III, theft as a level 6 felony. Following a trial in May 2018, a jury found

him guilty on Counts II and III and were deadlocked on Count I. The court

later sentenced him to 365 days on Count II and 730 days on Count III to be

served concurrently. Another trial was held in August 2018, at which Jose

testified that Colon-Nieves had previously visited her apartment as a guest of

1 Jose testified that she had three tables which were part of a matching set, that one of tables was still in the apartment, and that the other two were missing.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 3 of 9 her boyfriend, the court instructed the jury as to accomplice liability, and the

jury found Serrano guilty of burglary as a level 4 felony under Count I. The

court sentenced him to 2,190 days on Count I to be served consecutive to his

sentence on Count II and concurrently with his sentence on Count III. Serrano

filed a motion to correct error, which the court denied.

Discussion

[5] The issue is whether the evidence is sufficient to sustain Serrano’s burglary and

theft convictions. When reviewing claims of insufficiency of the evidence, we

do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State,

656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the evidence and the

reasonable inferences therefrom that support the verdict. Id. The conviction

will be affirmed if there exists evidence of probative value from which a

reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

[6] Serrano argues that, although he had been in the vicinity of the apartments on

August 3rd, mere presence at or near the scene of a burglary is insufficient to

sustain a conviction. He argues that it is not known exactly when Jose’s

apartment was burglarized, no evidence places him at the apartment, and the

footprint trail ended before reaching the apartment. He also argues that

possession of stolen property is not enough to sustain a conviction and the fact

he ran away when the vehicle crashed does not prove his guilt. He argues

“[s]ome of Jose’s property was in Colon-Nieves’s vehicle,” “it is unknown

when the items were stolen: it may have occurred days earlier,” “[t]he car

containing the items was not very far away from the theft,” and “[i]t is equally Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 4 of 9 likely that Colon-Nieves stole the property earlier, and that [Serrano] happened

to be in the car that morning.” Appellant’s Brief at 23-24. The State responds

that ample evidence was presented from which the jury could find Serrano

guilty, Colon-Nieves had been inside Jose’s apartment, Zimmerman and police

observed Serrano committing actions consistent with leaving the scene of the

burglary or retrieving items stolen as part of the burglary, and that Serrano and

Colon-Nieves led officers on a high speed chase followed by a foot chase.

[7] Ind. Code § 35-43-2-1 provides that a person who breaks and enters the building

or structure of another person, with intent to commit a felony or theft in it,

commits burglary and that the offense is a level 4 felony if the building or

structure is a dwelling. Ind. Code § 35-43-4-2 provides that a person who

knowingly or intentionally exerts unauthorized control over property of another

person, with intent to deprive the other person of any part of its value or use,

commits theft and that the offense is a level 6 felony if the value of the property

is at least $750 and less than $50,000.

[8] Elements of offenses and identity may be established entirely by circumstantial

evidence and the logical inferences drawn therefrom. Bustamante v. State, 557

N.E.2d 1313, 1317 (Ind. 1990). On appellate review of circumstantial evidence

of guilt, this Court need not determine whether the circumstantial evidence is

adequate to overcome every reasonable hypothesis of innocence, but rather

whether inferences may be reasonably drawn from that evidence which support

the verdict beyond a reasonable doubt. See id. at 1318. Identification testimony

need not necessarily be unequivocal to sustain a conviction. Heeter v. State, 661

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 5 of 9 N.E.2d 612, 616 (Ind. Ct. App. 1996). Although the fact a defendant flees or

does not flee does not indicate either guilt or innocence of itself, flight and

related conduct may be considered by a jury in determining a defendant’s guilt.

See Dill v. State, 741 N.E.2d 1230, 1232-1233 (Ind. 2001).

[9] A person who knowingly or intentionally aids, induces, or causes another

person to commit an offense commits that offense. Ind. Code § 35-41-2-4. An

accomplice “is criminally responsible for all acts committed by a confederate

which are a probable and natural consequence of their concerted action.”

McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998) (citations and internal

quotation marks omitted). It is not necessary that a defendant participate in

every element of a crime to be convicted of that crime under a theory of

accomplice liability. Bruno v. State, 774 N.E.2d 880, 882 (Ind. 2002), reh’g

denied. In determining whether there was sufficient evidence for purposes of

accomplice liability, we consider such factors as: (1) presence at the scene of the

crime; (2) companionship with another at the scene of the crime; (3) failure to

oppose commission of the crime; and (4) course of conduct before, during, and

after occurrence of the crime. Id. A defendant’s mere presence at the crime

scene, or lack of opposition to a crime, standing alone, is insufficient to

establish accomplice liability. Tobar v. State, 740 N.E.2d 109, 112 (Ind. 2000).

However, these factors may be considered in conjunction with a defendant’s

course of conduct before, during, and after the crime, and a defendant’s

companionship with the one who commits the crime. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 6 of 9 [10] While the mere unexplained possession of recently stolen property standing

alone does not automatically support a conviction for theft, such possession “is

to be considered along with the other evidence in a case, such as how recent or

distant in time was the possession from the moment the item was stolen, and

what are the circumstances of the possession (say, possessing right next door as

opposed to many miles away).” Holloway v. State, 983 N.E.2d 1175, 1179 (Ind.

Ct. App. 2013) (citations and internal quotation marks omitted). “The fact of

possession and all the surrounding evidence about the possession must be

assessed to determine whether any rational trier of fact could find the defendant

guilty beyond a reasonable doubt.” Id. (citing Girdler v. State, 932 N.E.2d 769,

773 (Ind. Ct. App. 2010) (noting that possession of recently stolen property is to

be considered along with the other evidence in a case and the circumstances of

the possession) (citing Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010))).

The trier of fact must assess all of the evidence instead of focusing upon one

piece of evidence, such as possession of recently stolen property. Id.

[11] Serrano does not dispute that the evidence demonstrates that property taken

from the apartment off of Maplewood Drive shared by Jose and her boyfriend

was discovered in Colon-Nieves’s vehicle and that the vehicle was not very far

from the burglarized apartment during the time she was on vacation. He also

does not dispute that the apartment was a dwelling or that the value of the

stolen property was at least $750. The record reveals that Jose identified items

discovered in Colon-Nieves’s vehicle as the items taken from the apartment.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 7 of 9 [12] The State presented evidence that Colon-Nieves’s vehicle was parked near

Zimmerman’s home in the early morning when it was dark outside, that

Serrano moved quickly from the middle of the field across the street and entered

the vehicle, that upon approaching the vehicle Officer Rizzo observed that

Colon-Nieves was sweaty and out of breath, and that Colon-Nieves and

Serrano led police on a high-speed vehicular chase followed by a foot pursuit.

Zimmerman testified that his street is very private, two residences have

driveways on the street and another has a rear entrance on the street, and the

street is a dead-end. The State presented aerial maps depicting the location of

the burglarized apartment relative to Zimmerman’s driveway where Colon-

Nieves and Serrano were parked and the location of the field relative to the

apartment and the driveway. A police officer testified that his investigation

revealed multiple sets of footprints in the dewy grass which came from the area

of the apartments off of Maplewood Drive, and the officer pointed to the area

that the police lost the trail of footprints. Jose indicated the location of her

apartment and that, looking out the back of her apartment, there were trees

and, to the left, a field. The detective who photographed the items in Colon-

Nieves’s vehicle testified the items were packed in the vehicle with grass all over

them which indicated to him that the items had been laying in grass at some

point. He also testified that an end table in Jose’s apartment matched two

tables found in Colon-Nieves’s vehicle. Jose testified that she had seen Colon-

Nieves at her apartment a couple of times before the break-in and that he had

been a guest of her boyfriend. A rational factfinder could find that Serrano as a

principal or accomplice broke and entered the Maplewood Drive apartment

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 8 of 9 with intent to commit theft in it and knowingly or intentionally exerted

unauthorized control over property of another person with intent to deprive its

owner of its value or use.

[13] Based upon the record, we conclude the State presented evidence of probative

value from which the jury could have found Serrano guilty beyond a reasonable

doubt of burglary as a level 4 felony and theft as a level 6 felony. See Holloway,

983 N.E.2d at 1179-1180 (noting the defendant was in a position to know when

the victim’s townhome was unoccupied, had the opportunity to commit the

crimes, and possessed the property taken from the townhome a short time after

the items had been taken, and holding a rational factfinder could have found

the defendant committed the burglary and theft).

[14] For the foregoing reasons, we affirm Serrano’s convictions.

[15] Affirmed.

May, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019 Page 9 of 9