Tyrone Sims v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2019
• Docket: 18A-CR-2145
• 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 May 29 2019, 9:56 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Berger Curtis T. Hill, Jr. Law Office of Donald J. Berger Attorney General of Indiana South Bend, Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tyrone Sims, May 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2145 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Jeffrey L. Sanford, Judge Trial Court Cause No. 71D03-1801-F5-12

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 1 of 5 [1] Tyrone Sims (“Sims”) was convicted after a jury trial of theft1 as a Class A

misdemeanor and burglary2 as a Level 5 felony. Sims now appeals, claiming

that the evidence was not sufficient to support his convictions.

[2] We affirm.

Facts and Procedural History [3] On Sunday, January 21, 2018, around 1:30 a.m., Mark Vanator (“Vanator”),

the owner of a local automotive business (“the Store”), was notified by his

security company that the alarm had been triggered by someone entering the

Store. Tr. Vol. 2 at 72. Vanator drove to the Store. Id.

[4] Roughly twelve minutes later, Vanator arrived at the Store and found that glass

from a window was broken. Id. Vanator dialed 911. Id. When the police

arrived, the officers asked Vanator to come into the Store to determine if

anything was missing. Id. at 73. He went inside and noticed a jack, which was

usually by the now-broken window, was missing. Id. The missing jack was

blue with a yellow handle and weighed roughly seventy pounds. Id.

[5] On the same day around 3:00 a.m., South Bend Police Department Officer Paul

Daley (“Officer Daley”) heard an alarm go off while he was patrolling an

industrial area just north of the Store. Id. at 104. While investigating the alarm,

1 See Ind. Code § 35-43-4-2(a). 2 See Ind. Code § 35-43-2-1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 2 of 5 Officer Daley saw Sims with a cart by an industrial building. Id. at 105. Officer

Daley did not expect to see anyone in the area since it was the middle of the

night and the weather was so cold. Id. at 106. Officer Daley went over to Sims

to make sure he was okay, and he saw a blue jack with a yellow handle in the

cart. Id. at 109. Vanator later identified the jack Sims had in his cart as the jack

that was missing from the Store. Id. at 78.

[6] The State charged Sims with Level 5 felony burglary and Class A misdemeanor

theft. Appellant’s App. Vol. 2 at 10. A jury trial began on August 23, 2018 and

concluded on August 24, 2018. Tr. Vol. 2 at 1. The jury found Sims guilty of

both charges. The trial court then sentenced Sims to three years for the burglary

and one year for the theft and ordered that the sentences would be served

concurrently. Appellant’s App. Vol. 2 at 43. Sims now appeals.

Discussion and Decision [7] Sims argues that there was insufficient evidence to support his convictions for

Level 5 felony burglary and Class A misdemeanor theft. When we review the

sufficiency of evidence, we do not determine the credibility of witnesses or

reweigh the evidence. Boggs v. State, 928 N.E. 2d 855, 864 (Ind. Ct. App. 2010),

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

the reasonable inferences that can be drawn from this evidence. Fuentes v. State,

10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied. We will not disturb the

jury’s verdict if there is substantial evidence of probative value to support it. Id.

Circumstantial evidence can sustain a conviction. Baltimore v. State, 878 N.E.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 3 of 5 2d 253, 258 (Ind. Ct. App. 2007), trans. denied. Circumstantial evidence does

not need to exclude every reasonable hypothesis of innocence and can sustain a

conviction if an inference may reasonably be drawn from the evidence to

support the judgment. Id. 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).

[8] Sims contends that the State failed to prove that he committed the crimes of

burglary and theft. He states that there was no evidence to directly tie him to

the burglary and argues that he was never identified as the person who broke

and entered the Store, noting that there were no “signs of glass or abrasions” on

his person that would connect him to the break-in. Appellant’s Br. at 8. Sims

also argues that there is no evidence of theft since Sims was merely standing

next to the jack when Officer Daley saw him, and Sims was not exerting control

over the jack. To sustain a conviction for Class A misdemeanor theft, the State

must prove that Sims knowingly or intentionally executed control over the

property of another with the intent to deprive the other person of any part of its

value. Ind. Code § 34-43-4-2(a). While the unexplained possession of recently

stolen property standing alone is not sufficient to support a conviction for theft,

such possession is to be considered along with the other evidence in the case.

Holloway v. State, 983 N.E.2d 1175, 1179 (Ind. Ct. App. 2013). In order to

sustain a conviction for Level 5 felony burglary, the State must prove beyond a

reasonable doubt that Sims broke into and entered a building of another with

the intent to commit theft. Ind. Code § 35-43-2-1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 4 of 5 [9] A conviction of burglary or theft may be sustained by circumstantial evidence.

Williams v. State, 714 N.E.2d 671, 673 (Ind. Ct. App. 1999). The unexplained

possession of recently stolen property supports an inference of guilt of theft of

that property. See Jelks v. State, 720 N.E.2d 1171, 1174 (Ind. Ct. App. 1999);

Williams, supra, 714 N.E.2d at 673. It is also well established that such

unexplained possession of recently stolen property will support a burglary

conviction so long as there is evidence that there was in fact a burglary

committed. Steele v. State, 475 N.E.2d 1149 (Ind 1985).

[10] Here, a rational trier of fact could find Sims guilty of burglary and theft beyond

a reasonable doubt. Around 1:30 a.m. on January 21, 2018, an alarm sounded

at the Store and a blue and yellow jack was missing. Approximately an hour

later, Sims was found by Officer Daley a short distance from the Store. Sims

had in his possession the jack that had recently been stolen from the Store.

[11] A reasonable fact-finder could determine that Sims had committed burglary and

theft. The entrances to the Store were locked and undamaged. To obtain the

jack, Sims had to break the glass and enter through the window. The glass was

broken at the Store, and a reasonable fact-finder could conclude that Sims broke

the window to enter the Store and steal the jack.

[12] The evidence was sufficient to support Sims’ theft and burglary convictions.

[13] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 5 of 5