MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Dec 19 2017, 9:17 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Philip R. Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert J. Szabo, Jr., December 19, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1706-CR-1411 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff. Judge Trial Court Cause No. 71D03-1606-F5-102
Mathias, Judge.
[1] Robert J. Szabo Jr. (“Szabo”) appeals his conviction for Level 5 felony
burglary. Szabo raises four issues on appeal which we restate as:
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 1 of 16 I. Whether the trial court abused its discretion when it admitted photographic evidence of surveillance camera footage; II. Whether the evidence was sufficient to support Szabo’s burglary conviction; III. Whether the trial court abused its discretion when it denied Szabo’s tendered jury instruction on criminal trespass; and IV. Whether an officer’s statement at trial constituted an improper comment on Szabo’s right to remain silent.
[2] We affirm.
Facts and Procedural History [3] St. Joseph County Police Officer Joshua Harmon (“Harmon”) was driving in
his squad car with a training officer around 1:45 a.m. on June 2, 2016, when he
heard a loud alarm coming from the direction of Headers car care business
(“Headers”) located in Mishawaka, Indiana. Officer Harmon pulled into
Headers and noticed a gap in the fence surrounding its property. Soon after,
Mishawaka Police Officer Joel Cyrier (“Officer Cyrier”) arrived on scene.
Officer Harmon, his training officer, and Officer Cyrier entered Headers’s lot
through the opening in the gate where they saw a slightly ajar service door next
to a garage. The officers waited outside the garage for a K-9 unit that was en
route and would be used to clear the building.
[4] While waiting for the K-9 unit, Officers Harmon and Cyrier saw Szabo walking
on the outside of the fence enclosing Headers’s property. The officers
approached Szabo, handcuffed him, put him in the back seat of a patrol vehicle,
and read him his Miranda rights. Szabo told the officers that he had left the
south side of South Bend around 1:45 a.m. and was just walking along the road.
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 2 of 16 Officer Cyrier told Szabo there was no way he could have walked that far in
such a short amount of time. Szabo also appeared sweaty and out of breath,
which the officers found unusual because it was a relatively cool night.
[5] While Szabo was in custody, Headers’s general manager Steve Huddleston
(“Huddleston”) arrived and provided the officers with access to the computer
surveillance system on the property. Headers is equipped with twelve closed-
circuit cameras that are always operating. Copies of the video could not be
made, so instead, Mishawaka Police Officer Robert Pfieffer (“Officer Pfieffer”)
took photographs and a video recording of the surveillance video as it appeared
on Huddleston’s computer. Several photographs and the recording appeared to
show Szabo inside one of Headers’s garages looking at parts and tools.
[6] At this point, Szabo was placed under arrest and was advised that if he wanted
to speak to a detective about his whereabouts and actions that evening, then he
could do so at the Mishawaka Police Station. The next day, Szabo was charged
with Level 5 felony burglary.
[7] A two-day jury trial commenced on April 20, 2017. Several photographs of the
surveillance footage at Headers were admitted over objection. Also, prior to
final arguments the court declined to give the jury Szabo’s tendered instruction
on criminal trespass. The jury found Szabo guilty, and he was sentenced on
May 31 to six years in the Department of Correction. Szabo now appeals.
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 3 of 16 I. Admission of Surveillance Footage Photographs
[8] Szabo first argues that the State failed to offer the proper foundation necessary
to admit the photographs of the surveillance video of Headers. Photographs
depicting matters that a witness describes during testimony are generally
admissible. Ewing v. State, 719 N.E.2d 1221, 1225 (Ind. 1999). Like other
evidence, photograph evidence falls within the sound discretion of the trial
court and we will only reverse for an abuse. McQueen v. State, 711 N.E.2d 503,
505 (Ind. 1999). A trial court abuses its discretion by ruling in a way clearly
against the logic and effect of the facts and circumstances before it. Halliburton v.
State, 1 N.E.3d 670, 675 (Ind. 2013).
[9] The foundation necessary for admitting a photograph at trial depends on how it
will be used. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014). Often times,
photographs are introduced to aid in the presentation and testimony at trial, in
which case the only requirement is testimony that the photograph accurately
depicts the scene or occurrence as it appeared at the time in question. Id.
(citations and quotations omitted).
[10] Other times—as is this case here—photographs are admitted as substantive
evidence as “silent witnesses” as to the activity being depicted. Id. In this
situation, the foundational requirements are much stricter. Id. When a
photograph is introduced at trial for “silent witness” purposes, the witness
authenticating the photograph(s) “must give identifying testimony of the scene
that appears in the photograph[s],” sufficient to persuade “the trial court . . . of
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 4 of 16 their competency and authenticity to a relative certainty.” Id. (emphasis in
original) (citations omitted).
[11] Here, the photographs were used for substantive purposes, as “silent witnesses”
showing Szabo inside Headers at the time the alarm went off. Huddleston
testified at trial that Headers’s surveillance system consists of twelve closed-
circuit cameras that are always running. When Huddleston arrived at Headers
on June 2, he accessed and viewed footage from the surveillance cameras with
the officers. Huddleston played the video beginning just after the alarm went
off, and it was from this footage that the police officers captured several images.
Additionally, Huddleston testified that the pictures represented true and
accurate visuals of the security footage, and that the pictures accurately
depicted the rear service bay garage located on Headers’s property. See Rogers v.
State, 902 N.E.2d 871, 877 (Ind. Ct. App. 2009).
[12] Later during trial, Officer Pfieffer indicated that he took the pictures of the
surveillance video, and at no point did he touch up or alter the photographs in
any way. Id. at 876 (finding that to show authenticity under the silent witness
theory the photographs must not have been altered). Officer Pfeiffer also
explained that he needed to take pictures of the surveillance images because no
one on site at the time knew how to make a copy of the actual camera footage.
[13] Szabo takes issue with the fact that the date on the videotape was June 3, when
the video was purportedly from June 2, and that there was no explanation given
as to why one of the pictures showed Szabo’s coat in color. However, three
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 5 of 16 officers and Huddleston testified that they viewed the footage on June 2, and
that the pictures of the footage were taken that same night. Huddleston also
explained that when the lights are off, the cameras will record in black and
white due to night vision; however, when the lights are on, the cameras will
record in color. The one image appeared in color because there was a
fluorescent light on above the vehicle in the garage at the time the footage was
captured.
[14] Based on these facts and circumstances, we conclude that the testimony from
Officers Harmon, Cyrier, and Pfieffer, along with the testimony of Huddleston
established a sufficient foundation upon which the trial court could admit
photographs of Headers’s surveillance footage under the “silent witness”
theory. See Wise v. State, 26 N.E.3d 137, 142–43 (Ind. Ct. App. 2015), trans.
denied. Accordingly, the trial court did not abuse its discretion when it admitted
the photographs during trial.
II. Sufficiency of the Evidence
[15] Szabo next contends that the State failed to present sufficient evidence to
support his burglary conviction. When reviewing a claim of insufficient
evidence to sustain a conviction, we consider only the probative evidence and
reasonable inferences supporting the verdict. Jackson v. State, 50 N.E.3d 767,
770 (Ind. 2016). It is the fact-finder’s role, not ours, to assess witness credibility
and weigh the evidence to determine whether it is sufficient to support a
conviction. Id. We will affirm the conviction unless no reasonable fact-finder
could have found the elements of the crime proven beyond a reasonable doubt. Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 6 of 16 Id. It is therefore not necessary that the evidence overcome every reasonable
hypothesis of innocence; rather, the evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d
144, 146–47 (Ind. 2007).
[16] To convict Szabo of Level 5 felony burglary, the State needed to prove that he:
(1) broke and entered into the building or structure of another; (2) with the
intent to commit a felony or theft inside. Ind. Code § 35-43-2-1. Szabo’s
primary argument is that he cannot be guilty of burglary because the State
presented no evidence that he intended to commit a felony or theft inside of
Headers. We disagree.
[17] As our supreme court has explained, “Burglars rarely announce their intentions
at the moment of entry,” and therefore, “a burglar’s intent to commit a specific
felony at the time of the breaking and entering may be inferred from the
circumstances.” Baker v. State, 968 N.E.2d 227, 229–30 (Ind. 2012) (citations
and quotations omitted). “Circumstantial evidence alone is sufficient to sustain
a burglary conviction.” Id. at 230. We find two cases instructive in analyzing
Szabo’s claim.
[18] In Sipes v. State, our supreme court found sufficient evidence that Sipes intended
to commit theft when he was found standing near a table with money on it and
then fled when the homeowner screamed. 505 N.E.2d 796, 797 (Ind. 1987). The
Sipes court explained, “The fact that it was late at night and that [Sipes] was in a
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 7 of 16 home where he had not been invited was evidence from which a jury could
infer that he was guilty of breaking into the home with intent to steal.” Id.
[19] In Wormbly v. State, a panel of this court found sufficient evidence to support
Wormbly’s intent to commit theft. 550 N.E.2d 95, 97 (Ind. Ct. App. 1990),
trans. denied. In that case, Wormbly had broken into the attic of a bar and cut a
hole in the ceiling leading down to where cash and merchandise were kept. Id.
Our court reasoned, “It can be inferred that Wormbly . . . [was] approaching
valuable property for the purpose of taking it when the police interrupted [his]
approach.” Id.
[20] Here, Szabo’s conduct was similar to that of the defendants in both Sipes and
Wormbly. The evidence established that Szabo was inside one of the garages on
Headers property around 1:30 in the morning, and he clearly can be seen
bending down and looking at various tools and parts just before the alarm
sounded. See Baker, 968 N.E.2d at 231 (holding that the defendants act of
looking through kitchen cupboards and drawers was sufficient for a jury to
conclude the defendant entered with the intent to commit theft). Szabo’s actions
are unlike the defendant in Freshwater v. State where our supreme court found
insufficient evidence to show the requisite intent to commit a felony because
there was no evidence that the defendant “was near or approaching anything
valuable.” 853 N.E.2d 941, 944–45 (Ind. 2006).
[21] Without any evidence to the contrary, it is reasonable for a jury to infer that an
individual intends to commit theft when he breaks into a closed business
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 8 of 16 establishment after hours. Oster v. State, 992 N.E.2d 871, 876–77 (Ind. Ct. App.
2013), trans. denied. It is not our role on appeal to substitute our judgment for
that of the fact-finder, or to reweigh the evidence. And we examine the
evidence most favorable to the jury’s judgment, and we will not disturb its
verdict if there is substantial evidence of probative value from which the jury
might reasonably infer guilt. Wormbly, 550 N.E.2d at 97. We are satisfied that
the State produced sufficient evidence of probative value here to support
Szabo’s burglary conviction.
III. Criminal Trespass Jury Instruction
[22] Szabo next argues that the trial court abused its discretion when it declined to
give the jury his tendered instruction on criminal trespass. Trial courts are
provided broad discretion when instructing juries. Erlewein v. State, 775 N.E.2d
712, 714 (Ind. Ct. App. 2002), trans. denied. When determining whether to give
a lesser included offense instruction, trial courts apply the three-part test set out
in Wright v. State, 658 N.E.2d 563 (Ind. 1995), which was explained more
recently by our supreme court in Wilson v. State:
The first two parts require the trial court to determine whether the offense is either inherently or factually included in the charged offense. If so, the trial court must determine whether there is a serious evidentiary dispute regarding any element that distinguishes the two offenses. . . . Where a trial court makes such a finding, its rejection of a tendered instruction is reviewed for an abuse of discretion.
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 9 of 16 765 N.E.2d 1265, 1271 (Ind. 2002) (citations, quotation, and footnote omitted).
If the evidence in the record does not support giving an instruction on an
inherently or factually included lesser offense, then the trial court should not
give it to the jury. Wright, 658 N.E.2d at 567.
[23] Szabo tendered the following instruction on criminal trespass as a lesser
included offense of burglary, which the trial court refused to give:
Included in the crime of “Burglary”, as charged in the Information, is the offense of Criminal Trespass.
“Criminal Trespass” is defined by statute as follows:
“A person who:
(1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person’s agent; or
(2) knowingly or intentionally interferes with the possession or use of the property of another person without the person’s consent; commits criminal trespass, a Class A misdemeanor.
To convict the defendant, the State must have proved each of the following elements:
1. The defendant, Robert Szabo;
2. Knowingly or intentionally;
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 10 of 16 3. Entered the property of Headers Car Care after having been denied entry and while not having a contractual interest in that property; or
[4]. Interfered with the possession or use of the property of Headers Car Care;
[5]. Without the consent of Headers Car Care.
The crime of criminal trespass is distinguished from the crime of burglary by the fact that burglary requires proof that Robert Szabo broke and entered the property of Headers Car Care and that he did so with the intent to commit a felony theft therein.
If you find the State failed to prove each of the essential elements of burglary you may find the defendant guilty of criminal trespass. To convict the defendant of any crime, however, you must find the State has proven each of the elements of that particular crime beyond a reasonable doubt.
Appellant’s App. p. 12. Szabo argues that the trial court’s refusal was error. We
disagree.
[24] First, our supreme court has consistently held that criminal trespass is not an
inherently lesser included offense of burglary. E.g., J.M. v. State, 727 N.E.2d
703, 705 (Ind. 2000). Next, to determine whether criminal trespass is a factually
included lesser offense, we look to the charging information and determine
whether all of the elements of the lesser offense are included. Watts v. State, 885
N.E.2d 1228, 1231 (Ind. 2008).
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 11 of 16 [25] A charge of criminal trespass in the present case could have come in two ways.
First, it would have required that: (1) Szabo knowingly or intentionally entered
the real property of Headers; (2) after having been denied entry; and (3) not
having a contractual interest in the property. Ind. Code § 35-43-2-2(b)(1)
(2014).1 Or second, that Szabo knowingly or intentionally interfered with the
possession or use of Headers without consent. I.C. § 35-43-2-2(b)(4).
[26] Here, the charging information stated, “On or about June 2, 2016 in St. Joseph
County, State of Indiana, ROBERT J SZABO Jr. did knowingly break
and enter the building or structure of Headers Car Care; with the intent to
commit a theft therein.” Appellant’s App. p. 9. The language the State chose to
use tracks the requisite language for Level 5 felony burglary. See I.C. § 35-43-2-
1. The charging information does not address whether Szabo had been denied
entry, whether he had a contractual interest in the property, or whether he
interfered with the possession or use of Headers without consent. By only
charging elements that would constitute burglary, the State excluded the
elements of criminal trespass in the information, and as such an instruction on
criminal trespass here would be improper. Wormbly, 550 N.E.2d at 96; see also
Jones v. State, 438 N.E.2d 972, 975 (Ind. 1982) (explaining that “the state
through its drafting can foreclose as to the defendant, the tactical opportunity to
seek a conviction for a lesser offense.”).
1 The Criminal Trespass statute was amended on July 1, 2016. Here, we cite to the statute as it existed at the time of the current offense in June 2016.
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 12 of 16 [27] Therefore, because the offense of criminal trespass is not inherently or factually
included in the burglary charge, the trial court did not abuse its discretion when
it refused to give Szabo’s tendered instruction.
IV. Impermissible Comment on Szabo’s Right to Remain Silent
[28] Szabo next claims that the trial court erred when it denied his motion for a
mistrial based on an alleged Doyle violation. In general, a criminal defendant
may not be penalized at trial for invoking the right to remain silent. Morgan v.
State, 755 N.E.2d 1070, 1074 (Ind. 2001) (citing Doyle v. Ohio, 426 U.S. 610, 620
(1976)). In Doyle, the Court held that using a defendant’s post-Miranda silence
to impeach a defendant at trial violates the Due Process Clause of the
Fourteenth Amendment. See 426 U.S. at 619. “The point of the Doyle holding is
that it is fundamentally unfair to promise an arrested person that his silence will
not be used against him and thereafter to breach that promise by using the
silence to impeach his trial testimony.” Lynch v. State, 632 N.E.2d 341, 342 (Ind.
1994) (citation omitted).
[29] A mistrial is an extreme remedy warranted only when no other curative
measure will rectify the situation. Evans v. State, 855 N.E.2d 378, 385 (Ind. Ct.
App. 2006), trans. denied. Because the trial court is in the best position to gauge
the circumstances surrounding an event and their impact on the jury, we review
its decision to deny a mistrial for an abuse of discretion. And a Doyle violation
may be harmless if it is clear beyond a reasonable doubt that the error did not
contribute to a defendant’s conviction. Sobolewski v. State, 889 N.E.2d 849, 857
(Ind. Ct. App. 2008), trans. denied. Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 13 of 16 [30] At trial, the following exchange took place between the prosecutor and Officer
Cyrier:
[Prosecutor]: Without going to what was actually seen in the video, what did you do next as a consequence?
[Officer Cyrier]: After the video was seen, I went back and I spoke to our suspect who at that point we believed that he had entered the building. We had told him he was under arrest, explained to him that if he wanted to talk to a detective that he could be transported to the Mishawaka Police Station and talk to a detective to explain his whereabouts and his actions of that night.
Tr. pp. 58–59. Szabo’s counsel immediately objected and stated to the court,
“Whether he exercised his rights not to speak to them or not cannot be
commented upon or asked in any manner. I move for a mistrial.” Id. at 59. The
trial court denied the motion for a mistrial, but it admonished the jury to ignore
Officer Cyrier’s statement. Szabo now claims that the mistrial should have been
granted because “[b]y making these comments before the jury, Officer Cyrier
created an expectation on the part of the jury that [Szabo] would offer an
explanation to a detective, and that by not doing so, created an implication of
guilt.” Appellant’s Br. at 12.
[31] We initially note that Officer Cyrier was not commenting on Szabo’s silence, or
whether or not Szabo responded at all—he was merely explaining the actions
he took after he watched the surveillance footage. And our supreme court has
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 14 of 16 explained that “comments about interviews between police and a suspect are
hardly forbidden territory.” Trice v. State, 766 N.E.2d 1180, 1183 (Ind. 2002).
[32] Additionally, the prosecutor did not specifically elicit this testimony, but rather
Officer Cyrier was responding to an innocuous question about his actions after
viewing the surveillance footage. This is not a situation where the prosecutor
provoked testimony about a defendant’s post-Miranda silence. See Miller v. State,
702 N.E.2d 1053, 1073 (Ind. 1998). Finally, the trial court admonished the jury
to ignore the testimony, and the prosecutor never brought this testimony up
again at any point during trial. See Greer v. Miller, 483 U.S. 756, 764–65,
(1987) (finding no Doyle violation where the prosecutor asked the defendant
why he did not tell his story when he was arrested, defense counsel objected
and moved for mistrial, the trial court denied the motion but sustained the
objection and instructed the jury to ignore the question, and the prosecutor
made no subsequent mention of defendant’s silence). There was no Doyle
violation here, and thus the trial court did not abuse its discretion by denying
Szabo’s motion for a mistrial.
Conclusion [33] Based on the facts and circumstances of this case, we find that the trial court did
not abuse its discretion when it admitted photos of video surveillance footage at
trial, the evidence presented to the jury was sufficient to sustain Szabo’s
conviction, the trial court did not err when it refused to give Szabo’s tendered
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 15 of 16 jury instruction on criminal trespass, and Officer Cyrier’s testimony during trial
did not amount to a Doyle violation. Accordingly, we affirm.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017 Page 16 of 16