MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                            Jun 28 2017, 9:32 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
Elizabeth A. Houdek                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary L. Watts,                                           June 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1611-CR-2647
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1608-F5-31816



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017         Page 1 of 7
                                          Case Summary

[1]   Gary Watts appeals his conviction and sentence for Level 5 felony burglary. He

      argues that the evidence is insufficient to support his conviction and that his

      sentence is inappropriate. Finding the evidence sufficient and his sentence not

      inappropriate, we affirm.


                            Facts and Procedural History

[2]   On August 10, 2016, around 2:00 a.m., Richard McCoy and his family were

      sleeping inside their home near 33rd Street and Washington Boulevard in

      Indianapolis when the security system alerted them to an entry into their

      detached garage. McCoy called 911. While McCoy spoke to the 911

      dispatcher, he noticed that both the entrance door and the overhead garage

      door were open. Additionally, he saw a person exit the garage with his son’s

      blue Cannondale bicycle. Within a minute and a half, Officers Robert Hons

      and Blake Littrell of the Indianapolis Metropolitan Police Department

      responded to McCoy’s call. McCoy informed Officer Hons that the person

      rode away on his son’s bicycle northbound into the alley by the garage.


[3]   Following that lead, Officer Hons saw Watts riding the bicycle north on

      Washington Boulevard near 33rd Street. When Officer Hons stopped his patrol

      car, Watts “cut” west onto 33rd Street and then turned north into an alley. Tr.

      Vol. II p. 24. The officers stopped Watts coming out of the alley. Watts told

      the officers that he had “just” purchased the bicycle for “$20 or $30.” Id. at 32.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017   Page 2 of 7
      Watts was arrested. Afterwards, the officers returned to McCoy’s house.

      McCoy identified the bicycle as his son’s, and the officers returned it to him.

      Upon a garage inspection, McCoy informed the officers that a second bicycle

      was missing and that the entrance door had been damaged by what looked like

      a metal tool. The officers did not find the second bicycle.

[4]   The State charged Watts with Level 5 felony burglary and Level 6 felony theft.

      A bench trial was held. During closing argument, defense counsel argued that

      Watts bought the bicycle and did not know it was stolen. The court found him

      guilty of burglary:

              I really can’t find the interpretation of buying a bicycle at 2:00
              a.m. in the morning, within minutes after a burglary has
              occurred, to be reasonable. . . . [F]act finders are allowed to use
              their common sense and experience gained from day-to-day
              living. And it just stretches the imagination to . . . believe that
              these things happened within such a short period of time. . . .
              And you were caught basically red-handed with a piece of
              property that was taken from the McCoys’ garage, so the Court
              does believe that you’re guilty.


      Id. at 39-40. The trial court also found Watts guilty of theft but entered

      judgment of conviction for burglary only due to double-jeopardy concerns.

[5]   At the sentencing hearing, the trial court identified two aggravating

      circumstances: (1) Watts’s “significant” criminal history, including two prior

      burglary convictions and (2) he was on probation for theft at the time of this

      offense. Id. at 65. The court identified two mitigating circumstances: (1)

      prolonged incarceration would cause undue hardship to his elderly

      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017   Page 3 of 7
      grandmother (whom he took care of) and (2) Watts’s health issues. The court

      sentenced Watts to five years, with four years in the Department of Correction

      followed by one year on work release.


[6]   Watts now appeals.


                                 Discussion and Decision

[7]   Watts raises two issues on appeal. He contends that the evidence is insufficient

      to support his conviction and that his sentence is inappropriate.


                            I. Sufficiency of the Evidence

[8]   Watts first contends that the evidence is insufficient to support his conviction

      for Level 5 felony 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).




      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017   Page 4 of 7
[9]    In order to convict Watts as charged here, the State had to prove beyond a

       reasonable doubt that he broke into and entered McCoy’s garage with intent to

       commit a felony (theft) in it. Appellant’s App. Vol. II p. 17; see also Ind. Code §

       35-43-2-1. Watts argues that “[t]he State failed to prove that [he] was the

       person who pried open . . . McCoy’s garage door or that he was the individual .

       . . McCoy observed in his garage.” Appellant’s Br. p. 7. Conceding that he was

       discovered near the scene of the burglary shortly after it occurred in possession

       of property taken from that crime, Watts nevertheless claims that the evidence

       “is only sufficient to show he received stolen property.” Id. He posits that

       because the second bicycle was never found and “he did not possess any

       burglary tools,” another person burglarized the garage, and he merely “took

       possession of stolen goods.” Id. at 8.


[10]   The record reflects that McCoy spoke to the 911 dispatcher as a person rode his

       son’s bicycle northbound into the alley by the garage. IMPD officers stopped

       Watts within minutes of McCoy’s 911 call riding the bicycle. When Officer

       Hons first spotted Watts and stopped his patrol car, Watts turned onto a street

       and then into an alley before he was eventually apprehended. Watts argued to

       the trial court that he did not take the bicycle from McCoy’s garage but rather

       just recently purchased it. However, the trial court found this story to be

       unbelievable given the time of day as well as the short amount of time in

       between the occurrence of the burglary and Watts’s apprehension. Watts’s

       argument is merely a request for us to reweigh the evidence, which we will not




       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017   Page 5 of 7
       do. Accordingly, the evidence is sufficient to support Watts’s conviction for

       Level 5 felony burglary.


                                       II. Appropriateness

[11]   Watts next contends that his five-year sentence—with four years executed in the

       DOC and one year on work release—is inappropriate in light of “the relatively

       low pecuniary loss, no violence and low potential for violence” of the burglary

       as well as his poor health and the fact that he is “the loving primary caregiver

       for his elderly grandmother.” Appellant’s Br. p. 6.

[12]   The Indiana Constitution authorizes independent appellate review and revision

       of a trial court’s sentencing decision. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).

       This Court “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       defendant.” Ind. Appellate Rule 7(B). “[A] defendant must persuade the

       appellate court that his or her sentence has met this inappropriateness standard

       of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a

       sentence is inappropriate ultimately turns on the culpability of the defendant,

       the severity of the crime, the damage done to others, and a myriad of other

       factors that come to light in a given case. Cardwell v. State, 895 N.E.2d 1219,

       1224 (Ind. 2008).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017   Page 6 of 7
[13]   A person who commits a Level 5 felony shall be imprisoned for a fixed term of

       between one and six years, with an advisory sentence of three years. Ind. Code

       § 35-50-2-6(b). Here, the trial court sentenced Watts to five years.


[14]   We agree with Watts that there is nothing particularly remarkable about the

       nature of the offense. Watts broke into McCoy’s detached garage in the middle

       of the night and took a bicycle.

[15]   But Watts’s character supports his above-advisory sentence. Watts has an

       extensive criminal history, including numerous property convictions. He has at

       least ten felony convictions and twelve misdemeanor convictions. Most

       importantly, he has two burglary convictions—the same conviction as here—

       from 2005 and 2008 and was on probation for theft at the time he committed

       this offense. He has also violated probation or community corrections multiple

       times. As the trial court stated, “our hope as a community, that these prior

       attempts at rehabilitation would’ve convinced you that you need to change your

       decisions. And at 43 years of age, I’m afraid that you’ve not gotten that

       message.” Tr. Vol. II p. 67. Although Watts has health issues and takes care of

       his elderly grandmother, he has not taken advantage of the opportunities he has

       been given. He has failed to persuade us that his five-year sentence is

       inappropriate.

[16]   Affirmed.

       Bailey, J., and Robb, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2647 | June 28, 2017   Page 7 of 7
