                                                                May 26 2015, 8:58 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Amy D. Griner                                             Gregory F. Zoeller
Mishawaka, Indiana                                        Attorney General of Indiana

                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Willie B. Jenkins,                                        May 26, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A04-1410-CR-489
        v.                                                Appeal from the Elkhart County
                                                          Circuit Court; The Honorable Terry
                                                          Shewmaker, Judge;
State of Indiana,                                         20C01-1401-FB-13
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015                   Page 1 of 9
[1]   Willie Jenkins appeals his convictions for Class B felony robbery with a deadly

      weapon,1 Class A felony burglary,2 and Class B felony criminal confinement.3

      He presents three issues for our consideration:


      1.         Whether the State presented sufficient evidence Jenkins committed Class

      A felony burglary;


      2.         Whether Frankie Blackmon’s testimony was incredibly dubious; and


      3.         Whether the trial court abused its discretion when it admitted a

      photograph of another man present at the crime.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On December 6, 2013, Blackmon was at his apartment with his friend, Ebony

      Alexander. Sometime that evening, Alexander’s boyfriend, Charles Holmes,

      knocked on Blackmon’s door. Blackmon recognized Holmes and opened the

      door for him. As soon as Blackmon opened the door, Jenkins and Terron Roby

      pushed Holmes aside and entered the apartment. One of the intruders hit

      Blackmon on the head with a bottle, and the other hit him on the head with a

      pistol.




      1
          Ind. Code § 35-42-5-1(1) (1984).
      2
          Ind. Code § 35-43-2-1(2)(A) (1999).
      3
          Ind. Code §§ 35-42-3-3(a)(1) & (b)(2)(A) (2002).


      Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015        Page 2 of 9
[4]   Jenkins and Roby made Blackmon, Alexander, and Holmes lie on the floor,

      and they asked where money and marijuana were in the apartment. They also

      asked for the location of a person named “Boozy.” (Tr. at 61.) Jenkins and

      Roby took two watches, two rings, medication, two cell phones, money, a small

      amount of marijuana, and Holmes’ wallet from the apartment. They told

      Blackmon to not call the police and threatened to kill him and Holmes’ child.


[5]   A neighbor called the police. When police asked Blackmon to identify the

      intruders, he first acted as if he did not remember, and then he identified

      Jenkins in a photo array. Alexander and Holmes also identified Jenkins and

      Roby as the men who entered the apartment and robbed them. When police

      arrested Jenkins, he told officers, “he didn’t rob anybody. He didn’t kick in

      anybody’s door. He didn’t go up into anybody’s apartment.” (Id. at 152-3.)

      The police had not apprised Jenkins of the specific details of the crime prior to

      his statement.


[6]   The State charged Jenkins with Class A felony burglary, Class B felony robbery,

      and Class B felony criminal confinement. At trial, Alexander and Holmes

      recanted their earlier identification of Jenkins. Alexander testified “the person

      [she] knew had dreads and stuff, so [she was] not a 100 percent sure.” (Id. at

      97.) Holmes testified he lied when he identified Jenkins as the perpetrator, and

      he did not want to testify at the trial. At trial, Blackmon identified Jenkins as

      one of the men who entered his apartment.




      Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015     Page 3 of 9
[7]   Also during trial, over Jenkins’ objection, the State admitted a picture taken

      from Roby’s Facebook page. The picture depicted Roby with a bandana

      covering his face, holding a gun. A jury found Jenkins guilty of all counts.


                                      Discussion and Decision
                                    1.       Sufficiency of the Evidence

[8]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

      fact-finder’s role, and not ours, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id. To

      preserve this structure, when we are confronted with conflicting evidence, we

      consider it most favorably to the fact-finder’s verdict. Id. We affirm a

      conviction unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt. Id. It is therefore not necessary that the

      evidence overcome every reasonable hypothesis of innocence; rather, the

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

      the fact-finder’s decision. Id. at 147.


[9]   To prove Jenkins committed Class A felony burglary, the State was required to

      submit sufficient evidence he broke and entered Blackmon’s apartment with the

      intent to commit a felony therein and the crime resulted in bodily injury. See

      Ind. Code § 35-43-2-1(2) (elements of Class A felony burglary) (1999). Jenkins




      Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015     Page 4 of 9
       argues the State did not prove he broke into Blackmon’s apartment, and thus

       his conviction must be reversed.


[10]   “Using even the slightest force to gain unauthorized entry satisfies the breaking

       element of the crime.” Davis v. State, 770 N.E.2d 319, 322 (Ind. 2002), reh’g

       denied. “For example, opening an unlocked door or pushing a door that is

       slightly ajar constitutes a breaking.” Id. Walking through an open structure

       does not constitute “breaking” within the definition of the statute. Cockerham v.

       State, 246 Ind. 303, 204 N.E.2d 654, 657 (Ind. 1965), reh’g denied. While our

       Indiana Supreme Court has held “[s]ome physical movement of a structural

       impediment is necessary to support a finding of breaking,” Smith v. State, 535

       N.E.2d 117, 118 (Ind. 1989), it has also held the use of physical force against a

       victim to gain entry into a residence was sufficient to prove the element of

       “breaking” independent of “conclusive” evidence force was used to open the

       residence’s door. Bellmore v. State, 602 N.E.2d 111, 124-25 (Ind. 1992), reh’g

       denied. The element of “breaking” can also be accomplished by forcing a

       person to open the door to a residence. Dew v. State, 439 N.E.2d 624, 625 (Ind.

       1982).


[11]   Jenkins argues the facts of the instant case are similar to those in Calhoon v.

       State, 842 N.E.2d 432 (Ind. Ct. App 2006), in which our court reversed

       Calhoon’s conviction for burglary based on Calhoon’s entry to a property via an

       opening in a fence because the evidence “did not establish that he used even the

       slightest force to gain entry to the premises.” Id. at 433. Calhoon is

       distinguishable.
       Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015      Page 5 of 9
[12]   In the instant case, Blackmon opened the door to his apartment after seeing

       Holmes through the peephole. However, as soon as the door opened, Jenkins

       and another man pushed Holmes to the side, hit Blackmon with a bottle and a

       pistol, and proceeded to steal items from Blackmon’s apartment. While there

       was no conclusive evidence Jenkins used force to open the door, there existed

       sufficient evidence to prove he used physical force to move Holmes from the

       doorway and to subdue Blackmon. See Bellmore, 602 N.E.2d at 124-25 (use of

       force against victim, rather than door, sufficient to demonstrate breaking).

       Jenkins’ arguments to the contrary are invitations for us to reweigh the

       evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court

       will not reweigh evidence on appeal).


                                         2.       Incredible Dubiosity

[13]   Under the “incredible dubiosity rule” we may “impinge on the jury’s

       responsibility to judge the credibility of the witness only when it has confronted

       ‘inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony of incredible dubiosity.’” Rodgers v. State, 422 N.E.2d 1211, 1213

       (Ind. 1981). We will reverse a conviction if the sole witness presents inherently

       improbable testimony and there is no circumstantial evidence of the defendant’s

       guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind. 1999).


[14]   Jenkins points to the fact that the trial testimony of two witnesses, Holmes and

       Alexander, was inconsistent with their pre-trial statements. “The fact that a

       witness gives trial testimony that contradicts earlier pre-trial statements does not

       necessarily render the trial testimony incredibly dubious.” Murray v. State, 761
       Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015     Page 6 of 9
       N.E.2d 406, 409 (Ind. 2002). Jenkins argues Blackmon’s identification of him

       as one of the perpetrators of the crime was incredibly dubious because

       Alexander and Holmes recanted their pre-trial identification of Jenkins.

       However, we have consistently held the “uncorroborated testimony of a victim

       alone is sufficient to convict.” Mayo v. State, 681 N.E.2d 689, 692 (Ind. 1997).

       That Alexander and Holmes presented inconsistent testimony is of no

       consequence. Finally, Jenkins directs us to nothing in Blackmon’s testimony

       that would be “inherently improbable” and therefore Blackmon’s testimony

       was not incredibly dubious. Jenkins’ arguments are invitations for us to reweigh

       the evidence, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate

       court will not reweigh evidence on appeal).


                                      3.       Admission of Photograph

[15]   We typically review allegations of error in the admission of evidence for an

       abuse of discretion, which occurs only when the trial court’s ruling is “clearly

       against the logic, facts, and circumstances presented.” Kindred v. State, 973

       N.E.2d 1245, 1252 (Ind. Ct. App. 2012), trans. denied. We consider only the

       evidence in favor of the trial court’s ruling, Sallee v. State, 777 N.E.2d 1204,

       1210 (Ind. Ct. App. 2002), trans. denied, and we will not reverse the decision to

       admit or exclude evidence if that decision is sustainable on any ground.

       Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).


[16]   Although Roby was tried separately, the State offered into evidence a

       photograph taken from Roby’s Facebook page in which Roby has a cloth

       covering his face and is pointing a gun at the camera, which the State argued
       Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015      Page 7 of 9
       was similar to the gun used during the crime and illustrated an action made in

       furtherance of an agreement between Jenkins and Roby to rob Blackmon.

       During trial Jenkins objected to the admission of the photograph and argued:

               The first is that any -- we already have testimony with respect to a gun
               being used in this case. It was described as silver. We have an
               individual who testified under oath that, in fact, was not the gun that
               was used in this case because it had been his gun. And it didn’t look
               anything like the gun that was allegedly used in this case.
               It’s overly prejudicial in that it has the shotgun in there that has
               nothing to do with this case, and that no one is claiming that that [sic]
               person in there is the defendant. It’s somebody who may or may not
               be charged, and there’s no nexus between that picture and my
               defendant. And we don’t know when that picture was taken, who
               took that picture, who posted that picture.
       (Tr. at 176-77.) However, on appeal, Jenkins bases his argument on Indiana

       Evidence Rule 404(b). As a party cannot make one argument to the trial court

       and then present a different argument on appeal, his argument is waived. See

       Bryant v. State, 802 N.E.2d 486, 496 (Ind. Ct. App. 2004) (appellant may not

       advance a different argument on appeal than was presented before the trial

       court), trans. denied.


[17]   Waiver notwithstanding, the error was harmless. An error is harmless when

       “the conviction is supported by substantial independent evidence of guilt as to

       satisfy the reviewing court that there is no substantial likelihood that the

       questioned evidence contributed to the conviction.” Tolliver v. State, 922 N.E.2d

       1272, 1278 (Ind. Ct. App. 2010), trans. denied. Prior to trial, Holmes and

       Alexander identified Jenkins as the man who forcibly entered Blackmon’s

       apartment. Blackmon identified Jenkins as one of the men who pushed Holmes

       Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015              Page 8 of 9
       out of Blackmon’s doorway, hit Blackmon in the head with a bottle, and hit

       him in the head with a pistol. A police officer who arrested Jenkins testified

       Jenkins knew details about the crime that had not been previously provided to

       him, such as the facts the incident happened at an apartment and a robbery

       occurred. Because of the substantial independent evidence of Jenkins’ guilt, we

       see no substantial likelihood that a picture of a person other than the defendant

       with a gun could have contributed to Jenkins’ conviction.


                                                  Conclusion
[18]   The State presented sufficient evidence Jenkins committed Class A felony

       burglary. Blackmon’s testimony was not incredibly dubious, and any error in

       the admission of the picture of Jenkins’ co-actor was harmless. Accordingly,

       we affirm.


[19]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A04-1410-CR-489 | May 26, 2015   Page 9 of 9
