                                               Jul 11 2014, 6:26 am


FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

RUTH JOHNSON                                  GREGORY F. ZOELLER
Marion County Public Defender                 Attorney General of Indiana
Indianapolis, Indiana
                                              CHANDRA K. HEIN
BARBARA J. SIMMONS                            Deputy Attorney General
Oldenburg, Indiana                            Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

DRAKKAR R. WILLIS,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A02-1310-CR-854
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Clark Rogers, Judge
                          Cause No. 49F25-1301-CM-4568



                                    July 11, 2014


                             OPINION- FOR PUBLICATION


CRONE, Judge
                                            Case Summary

        Drakkar R. Willis challenges the sufficiency of the evidence supporting his

conviction for class A misdemeanor criminal trespass. We affirm.

                                       Facts and Procedural History

      The facts most favorable to the trial court’s judgment are that on the night of January

18, 2013, Officer Christopher Clouse of the Indianapolis Metropolitan Police Department

was dispatched to the Watkins Family Recreation Center when a security alarm was

activated. While driving to the scene, Officer Clouse received an additional report from the

alarm company which reported voices and noises inside the Center. Once he arrived at the

scene, he spoke to Officer LaRussa, who had chased a suspect eastbound across the street

from the Center. Officer LaRussa told Officer Clouse that there was a vehicle parked behind

the building with its doors and trunk open. As Officer Clouse arrived at the west side of the

building, he did not see anyone exit the building but “observed a black male running

westbound from the business” about a hundred yards away. Tr. at 5.1 Officer Clouse radioed

the man’s description to other officers. Officer Michael Faulk noticed a man who matched

the description running westbound and apprehended him. Officer Clouse drove to that

location and identified Willis as the man he had seen running away from the Center. Officer

Clouse entered the Center and noticed that a vending machine had been broken into.




        1
          At trial, the prosecutor repeatedly asked Officer Clouse about the person he saw “running out of the
back of the building,” even though the officer never uttered those words. Tr. at 5. On cross-examination,
Officer Clouse stated that he “didn’t see [Willis] come from the building.” Id. at 8.

                                                      2
     The State charged Willis with class A misdemeanor criminal trespass. At trial, Cheryl

Newsom, a park supervisor, testified that no one had permission to be in the Center on the

night of the incident. The trial court found Willis guilty as charged.

                                 Discussion and Decision

       On appeal, Willis contends that the State failed to present sufficient evidence that he

committed criminal trespass. In reviewing a challenge to the sufficiency of the evidence,

“we neither reweigh the evidence nor assess witness credibility, and will focus on the

evidence most favorable to the [judgment] together with the reasonable inferences that may

be drawn therefrom. We will affirm unless no reasonable factfinder could find the elements

of the crime proved beyond a reasonable doubt.” Cooper v. State, 940 N.E.2d 1210, 1213

(Ind. Ct. App. 2011) (citation omitted), trans. denied. A conviction may be based on

circumstantial evidence and the reasonable inferences that can be drawn from that evidence.

Peters v. State, 959 N.E.2d 347, 355 (Ind. Ct. App. 2011). Contrary to Willis’s assertion, on

appeal, the circumstantial evidence need not overcome every reasonable hypothesis of

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

       Indiana Code Section 35-43-2-2(a)(4) states that a person who “knowingly or

intentionally interferes with the possession or use of the property of another person without

the person’s consent” commits class A misdemeanor trespass. Willis notes that no one saw

him inside the Center or exiting the Center that night. Although this is true, based on recent

Indiana Supreme Court precedent, we must conclude that the minimal circumstantial




                                              3
evidence favorable to the judgment was sufficient for a reasonable factfinder to determine

beyond a reasonable doubt that Willis was inside the Center that night.

       In Meehan v. State, 7 N.E.3d 255 (Ind. 2014), the Indiana Supreme Court affirmed a

burglary conviction against the defendant based almost solely on a glove found at a crime

scene containing the defendant’s DNA. Our supreme court observed that, “[l]ike a

fingerprint, DNA is a marker of identity,” and that “‘[a] fingerprint found at the point of

entry is accorded substantial weight because of its direct relationship to the element of illegal

entry.’” Id. at 258 (quoting Mediate v. State, 498 N.E.2d 391, 394 (Ind. 1986)). But whereas

a fingerprint on a door or a window can conclusively establish that a person was physically

present at a crime scene, DNA on a portable object is much less probative of a person’s

physical presence at the scene. In fact, the court agreed with Meehan that “‘DNA can be

transferred to an item very easily,’ thus making it possible that ‘the glove found at the scene

could have been left by any person who found, borrowed or stole it from [him],’” and that he

“‘could have very easily transferred his DNA to another person’s glove at some point prior to

the burglary by a casual touching.’” Id. at 259.

       Yet the court affirmed Meehan’s conviction, stating,

               Our precedent requires us to look at all the evidence presented in a light
       most favorable to the verdict. Given the presence of Meehan’s DNA on the
       glove, Officer Gibbons’s uncontroverted testimony that the glove was
       discovered only steps from the point of entry of a secured building, Meehan’s
       lack of authorization to enter [the] building, and Meehan’s possession of
       potential burglary tools [i.e., bolt cutters, a pocket knife, a screwdriver, a
       chisel, and two Allen key sets], we conclude that it was reasonable for the jury
       to infer that Meehan’s DNA was on the glove because he was wearing it at the
       time of the burglary. In the process, the jury necessarily rejected alternative
       explanations for the presence of both Meehan’s DNA and the glove.

                                               4
Id. Given that approximately seven billion other persons also lacked authorization to enter

the building and that the “potential burglary tools” were found in Meehan’s possession while

he was standing on a street corner over seven months after the burglary, we must conclude

that under Meehan, the quantum of circumstantial evidence needed to affirm a criminal

conviction in Indiana is extremely small indeed.

        Before Meehan, we would have agreed with our dissenting colleague and reversed

Willis’s conviction for insufficient evidence. But “we are bound to follow the precedent of

our supreme court.” Smith v. State, 777 N.E.2d 32, 38 n.2 (Ind. Ct. App. 2002), trans. denied

(2003). Unlike Meehan, Willis was observed running near the scene of the alleged crime

shortly after a security alarm was activated and voices and noises were heard inside the

Center. Another man was seen running in the opposite direction. Evidence of flight may be

considered as circumstantial evidence of consciousness of guilt. Clark v. State, 6 N.E.3d

992, 999 (Ind. Ct. App. 2014).2 Police also found a vandalized vending machine inside the

Center and a vehicle with its doors and trunk open outside the Center. Officers apprehended

Willis based on the description of Officer Clouse, who confirmed his identity. Based on the

foregoing evidence and our supreme court’s application of the sufficiency standard of review

in Meehan, we conclude that a reasonable factfinder could infer that Willis was inside the

Center and knowingly or intentionally interfered with the possession or use of its property



        2
          Contrary to what the dissent suggests, we do not hold that Willis’s flight is itself sufficient to support
his conviction. Our affirmance is based on the totality of the circumstantial evidence favorable to the trial
court’s judgment, including Willis’s and another fleeing man’s proximity to the building shortly after the
Center’s alarm was activated and multiple voices and noises were heard, the presence of a vehicle with open
doors and trunk behind the Center, and the vandalized vending machine.

                                                         5
without the owner’s consent. Willis’s argument to the contrary is merely a request to

reweigh the evidence, which we may not do. Therefore, we affirm his criminal trespass

conviction.

      Affirmed.

BAKER, J., concurs.

BARNES, J., dissents with opinion.




                                         6
                             IN THE
                   COURT OF APPEALS OF INDIANA

DRAKKAR R. WILLIS,                                 )
                                                   )
      Appellant-Defendant,                         )
                                                   )
             vs.                                   )      No. 49A02-1310-CR-854
                                                   )
STATE OF INDIANA,                                  )
                                                   )
      Appellee-Plaintiff.                          )



BARNES, Judge, dissenting

      I respectfully dissent. I am familiar with and have read the decision in Meehan v.

State, 7 N.E.3d 255 (Ind. 2014). I do not believe that case demands or commands that the

basic and longstanding tenets of the definition of “proof beyond a reasonable doubt” be

altered. Others may disagree.

      Some time ago, our supreme court stated:

             The rule of law defining proof beyond a reasonable doubt has
             been well settled for many years and requires each juror to be so
             convinced by the evidence that as a prudent man he would feel
             safe to act upon such conviction in matters of the highest
             concern and importance to his own dearest and most important
             interests, under circumstances where there was no compulsion
             or coercion upon him to act at all. The standard of a prudent
             man is that of a reasonable man. If different persons might
             reasonably arrive at different conclusions from that reached by
             the trial jury, the verdict will not be set aside for that reason. On
             the other hand if no reasonable man could find the evidence has
             proved an accused guilty beyond a reasonable doubt, a verdict


                                              7
              would not be sustained by sufficient evidence.

Baker v. State, 236 Ind. 55, 61, 138 N.E.2d 641, 644-45 (1956), overruled on other grounds

by Davis v. State, 249 Ind. 373, 232 N.E.2d 867 (1968) (citations omitted). Certainly, our

review of the sufficiency of the evidence supporting a conviction is deferential. But, more

recently, our supreme court has observed:

              Although this standard of review is deferential, it is not
              impossible, nor can it be. The Indiana Constitution guarantees
              “in all cases an absolute right to one appeal.” Ind. Const. art.
              VII, § 6. An impossible standard of review under which
              appellate courts merely “rubber stamp” the fact finder’s
              determinations, no matter how unreasonable, would raise serious
              constitutional concerns because it would make the right to an
              appeal illusory.

Galloway v. State, 938 N.E.2d 699, 709-10 (Ind. 2010).

       A bit of review is in order. An alarm sounds, police are dispatched. While nearing

the building from which the alarm emanated, an officer sees a black man running in a

direction away from the building, approximately 100 yards in the distance. This man was

Willis, and he was convicted of trespass. There is no evidence tying Willis to the scene. No

fingerprints were recovered on the vending machine or on any doors. No footprints were

found inside or outside the building. No connection was made between Willis and the car

police discovered outside the building with its doors and trunk open.

       The entirety of the evidence upon which Willis was convicted was the fact that he was

seen running at a distance of approximately 100 yards. I am not convinced that this evidence

can be construed as Willis’s fleeing from the scene of the crime. Even though we are bound

to give the State a reasonable inference here, it is well-settled Indiana law that flight from a

                                               8
crime scene, in and of itself, is not sufficient to sustain a conviction. See Dill v. State, 741

N.E.2d 1230, 1232-33 (Ind. 2001); Banks v. State, 257 Ind. 530, 538-39, 276 N.E.2d 155,

159 (1971); Keaton v. State, 177 Ind. App. 547, 548, 380 N.E.2d 587, 588 (1978). We are

not in the business of horseshoes and hand grenades, where “close” is good enough. I am

convinced the State has failed in its burden of proof and vote to reverse.




                                               9
