MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D), this                      Dec 16 2016, 8:37 am
Memorandum Decision shall not be regarded as
                                                                      CLERK
precedent or cited before any court except for the                Indiana Supreme Court
                                                                     Court of Appeals
purpose of establishing the defense of res judicata,                   and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                      Gregory F. Zoeller
South Bend, Indiana                                     Attorney General
                                                        Ian McLean
                                                        Matthew Elliott
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Diaz,                                           December 16, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1603-CR-000629
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Hon. John M. Marnocha,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        71D02-1508-F4-58




Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 1 of 9
                                          Case Summary
[1]   On August 16, 2015, Appellant-Defendant Michael Diaz was arrested for

      burglary after he was identified by an eyewitness and the stolen property was

      found inside of his home. Appellee-Plaintiff the State of Indiana (“the State”)

      subsequently charged Diaz with burglary as a Level 4 felony. Following a jury

      trial, Diaz was found guilty as charged. Diaz contends that the State produced

      insufficient evidence to support his conviction. Because there was sufficient

      evidence such that reasonable minds could reach the conclusion that Diaz

      committed burglary, we affirm.


                              Facts and Procedural History                         1




[2]   On August 16, 2016 around 7:30 a.m., Michael Schimmel left for work after

      locking his front and back doors and closing the outer storm door. Schimmel

      lived at 1418 Delaware Street in Mishawaka, Indiana. Around 8:00 a.m. that

      same morning, Schimmel’s neighbor, Gary Bryer was looking out his back door

      talking to the squirrels in his backyard when he saw a man walk out from

      behind Schimmel’s house. That man was subsequently identified as Diaz.

      Bryer became suspicious because he did not recognize Diaz and did not believe

      that Schimmel had a roommate.




      1
       We held oral argument in this case on December 6, 2016, at Fountain Central High School in Fountain
      County. We thank the members of the Fountain County Bar Association, Judges Susan Orr Henderson and
      Stephanie S. Campbell, and the students, faculty, and staff of Fountain Central High School for their
      gracious hospitality. We also commend counsel for the high quality of their arguments.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016    Page 2 of 9
[3]   Bryer watched Diaz walk out of the gate to Schimmel’s fenced-in backyard,

      across Delaware Street, and down Burdette Street. The man was wearing a

      white shirt and blue pants and had a blue bandanna on his head. Bryer also

      noted that the man was carrying a white trash bag. Bryer continued to watch

      the man walk to a house on the far side of Burdette Street.


[4]   When the man got to the house, he placed the trash bag on the porch and

      walked down the side of the house before Bryer lost sight of him. Bryer did not

      see the man come out of Schimmel’s house nor did he see the man go into the

      house on Burdette Street. However, Bryer’s security cameras captured Diaz

      walking down the sidewalk carrying a white trash bag.


[5]   After seeing the man in Schimmel’s yard, Bryer called Schimmel and asked him

      if he had a roommate. When Schimmel said that he did not have a roommate,

      Bryer told him that he would walk over to his house to see if anything was

      wrong. Following the call with Bryer, Schimmel called the police and left work

      to go check on his home.


[6]   The police arrived at Schimmel’s house around 8:05 a.m. The first three

      officers to arrive were Lieutenant Brian Costa, Sergeant Paul Robinson, and

      Officer Robert McCahil from the Mishawaka Police Department. They soon

      discovered that Schimmel’s back door had been kicked in. They secured

      Schimmel’s home by walking through the rear and checking for suspects or

      anyone injured. While in Schimmel’s house, Lieutenant Costa observed that




      Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 3 of 9
      the refrigerator door and several cupboard doors had been left open.

      Additionally, the drawers in the dresser in the rear bedroom had been opened.


[7]   Once Schimmel arrived home, he walked through his house to see if anything

      was missing or out of place. Schimmel noted that dressers in two of the three

      bedrooms had been opened, a closet door had been opened, and the items in

      one of the rooms had been “ruffled around.” Tr. p. 35. Additionally, his back

      door had been kicked in, the outer storm door was open, and the door frame

      had been damaged. In the kitchen, Schimmel noted that the pantry door and

      refrigerator door had been left open. When Schimmel looked into his

      refrigerator, he saw that an eighteen-pack of Miller Light beer holding eight or

      nine sixteen-ounce cans was missing. In his pantry, among other things,

      Schimmel had white trash bags with gray drawstrings. Schimmel also

      confirmed that he had not given anyone permission to enter his home before or

      after he left for work that morning.


[8]   Officer McCahil and Lieutenant Costa subsequently spoke to Bryer who gave

      them a description of the man he had seen walking away from Schimmel’s

      house and pointed out the house on Burdette Street that the man had walked to.

      After talking to Bryer, Sergeant Robinson instructed Officer McCahil to go to

      the rear of the house that Bryer had pointed out. The address of the house was

      926 Burdette. While in the alley behind the house, Officer McCahil checked

      trash cans to see if he could find any evidence related to the burglary at

      Schimmel’s house.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 4 of 9
[9]    Around that same time, Officer Kirby Stoner was dispatched to 926 Burdette

       Street with a description of suspect and location of the burglary. While driving

       to 926 Burdette Street, Officer Stoner saw a man who resembled the suspect

       involved in the burglary roughly two blocks away walking towards the 7-Eleven

       gas station. However, Officer Stoner continued to drive to 926 Burdette Street.


[10]   When Officer Stoner arrived at 926 Burdette Street, he secured the front of the

       house while Sergeant Cynthia Reed spoke with Ken Robb, who lived at 922

       Burdette Street. Sergeant Reed asked Robb if he knew who lived at 926

       Burdette Street. As they were talking, Robb saw his neighbor walking toward

       him on the sidewalk and said “[w]ell here he comes right now.” Tr. 131.

       Officer Stoner also identified the man as the same man he saw walking towards

       the 7-Eleven.


[11]   At that time, Officer Stoner and Sergeant Reed approached the man and asked

       for his name and identification. The man was identified as Diaz. He said his

       identification was in his house and pointed to 926 Burdette Street. After he

       identified 926 Burdette Street as his home, Officer Stoner handcuffed Diaz,

       patted him down, and waited for the search warrant for Diaz’s home to be

       obtained. Diaz was detained at approximately 8:40 a.m.


[12]   After Diaz was detained, Lieutenant Costa drove Bryer to Diaz’s house in order

       for him to make a positive identification. At that time, Diaz was wearing gray

       sweatpants, a white or gray shirt, and no bandana. Bryer identified Diaz as the




       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 5 of 9
       man he had seen walking around the side of Schimmel’s house carrying the

       white trash bag.


[13]   Once the search warrant was obtained, the officers searched Diaz’s home for a

       white trash bag with a gray drawstring. During the search, Officer McCahil

       went into a bedroom in the back of the house. While he was in the bedroom,

       Officer McCahil observed several trash bags on the floor of the closet. Officer

       McCahil noted that all of the trash bags had red tie strings except for one bag

       which had a gray tie string. The bag with the gray tie appeared to have

       cylindrical objects that resembled beer cans in it. Upon making this discovery,

       Officer McCahil notified the other officers in the home. Detective Kevin Will

       joined Officer McCahil in the bedroom and removed the trash bag from the

       closet. The bag in question contained seven cold sixteen-ounce cans of Miller

       Lite beer. Additionally, Officer Paul Robinson found an empty eighteen-pack

       carton of Miller Lite sixteen-ounce beer in a trash can in the alley behind Diaz’s

       house. The officers did not find any other white trash bags with gray ties or

       Miller Lite beer in Diaz’s house. No finger prints were discovered at the scene

       or were found on any of the stolen property.


[14]   On August 17, 2015, the State charged Diaz with burglary as a Level 4 felony.

       A jury trial was held on February 2, 2016 and February 3, 2016. On February

       3, 2016, the jury found Diaz guilty of the charged offense. On March 9, 2016,

       the trial court sentenced Diaz to twelve years of incarceration.



                                    Discussion and Decision
       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 6 of 9
[15]   On appeal, Diaz contends that the evidence is insufficient to sustain his

       conviction of Level 4 felony burglary. The Indiana Supreme Court has held

       that “[i]t 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.” Drane v. State, 867, N.E.2d 144, 146 (Ind. 2007). As

       such,

               [w]hen reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. 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. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Id. at 146-47 (internal citations, quotations, and footnotes omitted). “In

       essence, we assess only whether the verdict could be reached based on

       reasonable inferences that may be drawn from the evidence presented.” Baker v.

       State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Furthermore, a

       conviction can be sustained on only the uncorroborated testimony of a single

       witness. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (citing Ferrell v. State,

       565 N.E.2d 1070, 1072-73 (Ind. 1991)). The jury, acting as the trier-of-fact, is


       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 7 of 9
       free to believe whomever it sees fit. See Klaff v. State, 884 N.E.2d 272, 274 (Ind.

       Ct. App. 2008).


[16]   Under Indiana Code section 35-43-2-1, “[a] person who breaks and enters a

       building or structure of another person, with intent to commit a felony or theft

       in it, commits burglary . . . a level 4 felony if the building or structure is a

       dwelling.” Therefore, in order to prove that Diaz committed Level 4 felony

       burglary, the State was required to prove that Diaz broke in and entered the

       dwelling of another with the intent to commit a felony therein.


[17]   In challenging the sufficiency of the evidence to prove that he committed the

       burglary, Diaz notes that his conviction was based on circumstantial evidence.

       Specifically, Diaz cites a lack of evidence that anyone actually witnessed him

       breaking and entering Schimmel’s home. Further, Diaz argues that the State

       merely established that he was present in his own neighborhood at the time of

       the burglary and that he had Miller Lite beer in his home. Moreover, Diaz

       points to a lack of direct evidence that he kicked in Schimmel’s back door; that

       he was not wearing jeans and a white t-shirt at the time he was arrested; and the

       lack of fingerprint evidence linking Diaz to the beer cans, the beer case, or

       Schimmel’s home.


[18]   “Whether the evidence is direct or circumstantial, we will not reweigh it or

       assess the credibility of witnesses.” Moor v. State, 652 N.E.2d 53, 55 (Ind.

       1995). “Where circumstantial evidence is used to establish guilt, the question

       for the reviewing court is whether reasonable minds could reach the inferences


       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 8 of 9
       drawn by the jury; if so, there is sufficient evidence.” Maxwell v. State, 731

       N.E.2d 459, 462 (Ind. Ct. App. 2000). “Furthermore, we ‘need not determine

       whether the circumstantial evidence is adequate to overcome every reasonable

       hypothesis of innocence, but rather whether inferences may be reasonably

       drawn from that evidence which supports the verdict beyond a reasonable

       doubt.’” Id. at 463 (quoting Bustamante v. State, 557 N.E.2d 1313, 1318 (Ind.

       1990)). “It is enough if an inference reasonably tending to support the

       conviction can be drawn from the circumstantial evidence.” Hayes v. State, 876

       N.E.2d 373, 375 (Ind. Ct. App. 2007).


[19]   Seemingly contrary to Diaz’s assertions, the evidence demonstrates that Bryer

       identified Diaz as the man he saw walking away from the back of Schimmel’s

       house with a white trash bag with a gray tie. The evidence further demonstrates

       that Diaz was captured on a security camera walking down the street with the

       same bag after leaving Schimmel’s house. Additionally, the evidence indicates

       that the trash bag in which the cold beers were found was the same as the white

       trash bags that Schimmel kept in his kitchen. In light of these facts, we

       conclude that the evidence is sufficient to link Diaz to the burglary at

       Schimmel’s house. Diaz’s assertion to the contrary amounts to nothing more

       than an invitation for this court to reweigh the evidence which we will not do.

       See Bailey, 979 N.E.2d at 135.


[20]   The judgment is affirmed.


       Baker, J., and Robb, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-629 | December 16, 2016   Page 9 of 9
