Spencer Davidson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 18, 2019
• Docket: 19A-CR-201
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jun 18 2019, 7:43 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 Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General Lafayette, Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Spencer Davidson, June 18, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-201 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Appellee-Plaintiff Steven P. Meyer, Judge Trial Court Cause No. 79D02-1807-F5-121

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-201 | June 18, 2019 Page 1 of 5 Case Summary [1] Spencer Davidson appeals his conviction for Level 5 felony attempted burglary,

arguing that the evidence is insufficient to support it. We affirm.

Facts and Procedural History [2] The evidence most favorable to the judgment establishes that on the evening of

June 28, 2018, Officer Matthew Santerre of the Lafayette Police Department

responded to a call from a Pay Less grocery store regarding a shoplifting

complaint. Upon arriving at Pay Less, he talked to a manager, who said that

Davidson grabbed fireworks and a lighter from a display and tried to leave

without paying. When Officer Santerre asked Davidson if he disputed this

statement, Davidson said no. Officer Santerre requested his identification and

asked him where he was currently living. Davidson told Officer Santerre where

he was living and that he was down on his luck and looking for $10. The

manager told Officer Santerre that she did not want to pursue a theft charge

against Davidson, and Davidson was allowed to leave.

[3] About an hour later, Officer Samuel Gawaluck was dispatched to Citgo on

Main Street in Lafayette in response to an alarm. When Officer Gawaluck

arrived, he “saw that the lower pane of the front door was damaged.” Tr. p. 13.

There was a hole “a little bit bigger than a softball size, in the lower glass panel

and the rest of the glass around it was starting to spider web, start[ing] to

crack.” Id. at 17-18. All exterior doors were locked and the security light in the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-201 | June 18, 2019 Page 2 of 5 store was on. After contacting an employee of Citgo, Officer Gawaluck and

another officer entered the store and found no one inside the building.

[4] Officer Gawaluck reviewed security footage and saw a white male, later

identified as Davidson, trying to enter Citgo. The footage shows Davidson

riding a bike up to Citgo, pulling on the handle of the front door, looking inside

the door, and kicking the door. Davidson then moves off camera, comes back

with a rock in his hand, looks around the area, and throws the rock at the door.

He then walks back to his bike, but he comes back to the front door of Citgo,

pulls on the handle of the door, and looks inside again before finally leaving on

his bike. See Ex. 1.

[5] After Officer Gawaluck reviewed the security footage, he sent a photo of the

assailant to the officers on shift that night. Officer Santerre was able to identify

Davidson due to the earlier encounter at Pay Less. Officers then went to

Davidson’s home and ultimately arrested him.

[6] The State charged Davidson with Level 5 felony attempted burglary, Class A

misdemeanor attempted theft, and Class A misdemeanor criminal mischief.

Following a bench trial, the judge found him guilty of all three charges but

entered judgment of conviction on attempted burglary only. In finding

Davidson guilty of attempted burglary, the judge explained that he considered

Davidson’s prior attempted theft at Pay Less an hour before arriving at Citgo,

the discussions Davidson had with Officer Santerre at Pay Less about looking

Court of Appeals of Indiana | Memorandum Decision 19A-CR-201 | June 18, 2019 Page 3 of 5 for money, Davidson throwing a rock at and kicking the front door of Citgo,

and Davidson looking through the front door repeatedly. Tr. pp. 51-52.

[7] Davidson now appeals.

Discussion and Decision [8] Davidson claims that the evidence is insufficient to support his conviction of

attempted burglary. When reviewing the sufficiency of the evidence to support

a conviction, appellate courts must consider only the probative evidence and

reasonable inferences supporting the judgment. Sallee v. State, 51 N.E.3d 130,

133 (Ind. 2016). It is the fact-finder’s role, not that of appellate courts, to assess

witness credibility and weigh the evidence to determine whether it is sufficient

to support a conviction. Id. It is not necessary that the evidence “overcome

every reasonable hypothesis of innocence.” Id. (quotation omitted). The

evidence is sufficient if an inference may reasonably be drawn from it to support

the judgment. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

[9] In order to convict Davidson of attempted burglary, the State had to prove that

he took a substantial step toward breaking and entering Citgo, and that he did

so with the intent to commit theft. Ind. Code § 35-43-2-1; Ind. Code § 35-41-5-

1(a); Appellant’s App. Vol. II p. 10; see also Slaton v. State, 510 N.E.2d 1343,

1350 (Ind. 1987).

[10] Davidson concedes that he took a substantial step toward breaking and entering

Citgo by kicking and throwing a rock at the door. However, he claims that the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-201 | June 18, 2019 Page 4 of 5 evidence is insufficient to show that he did so with the intent to commit theft.

We disagree.

[11] A burglar’s intent to commit theft may be inferred from the circumstances.

Timmons v. State, 500 N.E.2d 1212, 1216 (Ind. 1986), reh’g denied. Here, the

evidence shows that, before Davidson went to Citgo, he grabbed fireworks and

a lighter from Pay Less and attempted to leave without paying. While at Pay

Less, he told Officer Santerre that he was down on his luck and looking for $10.

Video footage from Citgo shows Davidson kicking and throwing a rock at the

door, putting his hand against the glass to look at what was inside, and

eventually leaving when it is apparent to him that he will not be able to get

inside the building. This evidence is sufficient to show that Davidson had the

intent to commit theft. See id. (holding that the evidence was sufficient to show

that the defendant intended to commit theft when he broke and entered a

building based in part on the fact that he “had already committed a burglary

earlier that evening”); Williams v. State, 481 N.E.2d 1319, 1322 (Ind. 1985)

(holding that the evidence was sufficient to show that defendant intended to

commit theft when he broke and entered a building based in part on the fact

that “defendant admitted taking [a] television found nearby in a prior burglary”

that evening). We therefore affirm Davidson’s conviction for Level 5 felony

attempted burglary.

[12] Affirmed.

Kirsch, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-201 | June 18, 2019 Page 5 of 5