MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                    Nov 25 2019, 9:28 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
Scott H. Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Benjamin J. Shoptaw
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua E. Williams,                                     November 25, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-780
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable John M.
Appellee-Plaintiff.                                     Marnocha, Judge
                                                        Trial Court Cause Nos.
                                                        71D02-1810-F4-73
                                                        71D02-1312-FB-171



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019                  Page 1 of 8
                                          Case Summary
[1]   Joshua E. Williams (“Williams”) challenges his conviction, following a jury

      trial, of burglary, as a Level 4 felony.1 He raises one dispositive issue, which is

      whether the State presented sufficient evidence to support his conviction.


[2]   We affirm.



                               Facts and Procedural History
[3]   In the late morning hours of October 22, 2018, Katie McClarren (“McClarren”)

      called 9-1-1 and reported that someone had broken a window out of the

      basement of her home located at 1019 North Lawrence Street in South Bend.

      South Bend Police Officers Steve Noonan (“Officer Noonan”) and Jamil

      Elwaer (“Officer Elwaer”) were the first to arrive at McClarren’s house in

      response to her 9-1-1 call. Upon arriving, they saw two African American

      males outside of the residence in the backyard area, and those men ran away

      when they saw the officers. Officer Elwaer observed that a grate over a

      basement egress window had been removed. Officers Noonan and Elwaer

      pursued the two fleeing males on foot for several blocks.


[4]   The pursuit resulted in the capture and arrest of Williams and DeMarcus

      Morton (“Morton”). On October 24, the State charged Williams with Burglary,




      1
          Ind. Code § 35-43-2-1(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019   Page 2 of 8
      as a Level 4 felony. Under a separate cause number, the State filed a petition to

      revoke Williams’s probation.


[5]   On February 13, 2019, Williams had a jury trial at which Morton, among

      others, testified for the State. Morton testified as follows. On the morning of

      October 22, 2018, Marshawn Jones (“Jones”) contacted him and suggested they

      “hit a lick,” i.e., enter someone’s home to steal their property. Morton then

      called Williams because Williams had a car. Williams picked up Morton and

      Jones and together they all went to McClarren’s residence. The plan, with

      which Williams agreed, was to enter the residence and steal property that the

      three of them would then “divide up.” Id. at 104-05. Jones was to knock on

      the door of the residence to see if anyone was home. Morton did not know if

      anyone answered the door when Jones knocked. Jones “used a rock to bust the

      window” of a window well to “g[e]t in the house.” Id. at 111.


[6]   While Morton and Williams were standing outside the residence in the

      backyard, the police arrived. Morton and Williams ran from the police, and the

      police chased them. Morton did not know where Jones was at that time; he

      never witnessed Jones leave the house so he was “not sure” how Jones got out

      of the house. Id. at 110-11.


[7]   The recording of McClarren’s 9-1-1 call was admitted into evidence as State’s

      Exhibit 24a and played for the jury. During the 9-1-1 call, McClarren reported

      that someone had broken a window in the basement of her home, and she and

      her young son were hiding in a bathroom. After being on the phone with the 9-


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019   Page 3 of 8
       1-1 operator for about six minutes, McClarren stated that she heard a door

       opening and someone walking around. She said she also heard voices. At

       approximately minute fifteen of the 9-1-1 call, the operator informed McClarren

       that the officers were at that time entering her house.


[8]    South Bend Police Officer Sandra Smith also testified for the State. She was

       one of the officers who responded to McClarren’s 9-1-1 call on October 22,

       2018. Officer Smith testified that State’s Exhibits 2 through 12—which were

       admitted without objection—were photographs police took of McClarren’s

       residence on October 22. Officer Smith identified photographs of the inside of

       the residence’s broken window and a desk that was right below that window.

       Ex. at 11. The photograph of the desk, State’s Exhibit 10, showed a shoeprint

       on the top of the desk. Id. at 12.


[9]    The jury found Williams guilty as charged. The court sentenced Williams to

       eight years with 149 days credit for the burglary conviction. The court also

       revoked Williams’s probation because of the burglary conviction, and ordered

       Williams to serve four years of his previously suspended sentence consecutive

       to the sentence for burglary. Williams now appeals.



                                 Discussion and Decision
[10]   Williams challenges the sufficiency of the evidence to support his conviction.

       Our standard of review of the sufficiency of the evidence is well-settled:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019   Page 4 of 8
               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.


[11]   To support Williams’s conviction of Burglary, as a Level 4 felony, the State was

       required to prove that (1) Williams, as an accomplice or principal, (2) broke and

       entered (3) a building or structure (4) that was a dwelling of another person, (5)

       with intent to commit a felony or theft in it. I.C. § 35-43-2-1(1); I.C. § 35-41-2-

       4. There was no evidence produced at trial that Williams himself broke

       McClarren’s window and entered her residence. Rather, Williams was charged

       as an accomplice. Indiana Code Section 35-41-2-4 provides:


               A person who knowingly or intentionally aids, induces, or causes
               another person to commit an offense commits that offense, even
               if the other person:


               (1) has not been prosecuted for the offense;


               (2) has not been convicted of the offense; or


               (3) has been acquitted of the offense.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019   Page 5 of 8
       This statute does not establish liability as a separate crime, but merely as a

       separate basis of liability for the crime charged. E.g., Taylor v. State, 840 N.E.2d

       324, 333 (Ind. 2006).


[12]   In determining whether there is sufficient evidence to support an accomplice

       relationship, we consider: (1) presence at the scene of the crime; 2 (2)

       companionship with another at the scene of the crime; (3) failure to oppose

       commission of the crime; and (4) course of conduct before, during, and after

       occurrence of the crime. E.g., Bethel v. State, 110 N.E.3d 444, 450 (Ind. Ct. App.

       2018), trans. denied. It is not necessary that the evidence show the alleged

       accomplice personally participated in the commission of each element of the

       offense. Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). Rather, “[a] jury

       may infer complicity and participation in a crime ‘from defendant’s failure to

       oppose the crime, companionship with the one engaged therein, and a course of

       conduct before, during, and after the offense which tends to show complicity.’”

       Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000) (quoting Shane v. State, 716

       N.E.2d 391, 396 (Ind. 1999)); see also Vasquez v. State, 762 N.E.2d 92, 95 (Ind.

       2001) (“An accomplice can be held criminally liable for everything done by his

       confederates which was a probable and natural consequence of their common

       plan.” (quotation and citation omitted)). Thus, in Wood v. State, for example,

       there was sufficient evidence to support the defendant’s conviction for robbery,



       2
          “Mere presence at the scene of a crime is insufficient to make one an accomplice,” but we consider
       presence at the scene in conjunction with the other factors. Griffin v. State, 16 N.E.3d 997, 1004 (Ind. Ct.
       App. 2014).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019                     Page 6 of 8
       as an accomplice, where the defendant: admitted she knew the principal

       intended to rob someone; drove the principal to the scene of the crime; parked

       the vehicle and waited for the principal while the principal committed the

       crime; and then drove away with the principal until stopped by police. 963

       N.E.2d 632, 636 (Ind. Ct. App. 2012).


[13]   Here, the State presented sufficient evidence that Williams knowingly aided

       Jones in committing burglary as a Level 4 felony. Morton, an eye-witness co-

       conspirator, testified that Williams knew of and agreed to the plan to join Jones

       and Morton in breaking into McClarren’s home and stealing her property.

       Morton further testified Williams drove him and Jones to McClarren’s

       residence for that purpose. Morton testified that Jones broke into McClarren’s

       residence through a basement window while he and Williams stood outside the

       residence. The evidence also established that Williams ran from the police as

       soon as he saw them. And the jury could reasonably infer from Morton’s

       testimony that Jones did actually enter McClarren’s residence. That inference

       is bolstered by McClarren’s statement in her 9-1-1 call that she heard someone

       in her residence, and by the evidence of a shoeprint on top of the desk that sat

       directly below the broken basement window.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019   Page 7 of 8
[14]   The State presented sufficient evidence to support Williams’s conviction of

       burglary as a Level 4 felony.3


[15]   Affirmed.


       Najam, J., and May, J., concur.




       3
         Because we affirm Williams’s burglary conviction, we need not address his claim that his probation should
       not have been revoked based on the burglary conviction.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-780 | November 25, 2019                Page 8 of 8
