MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                          FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Sep 11 2018, 8:16 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
Sean P. Hilgendorf                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derek J. Bell,                                           September 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1711-CR-2687
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1701-F4-4



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2687 | September 11, 2018     Page 1 of 7
[1]   Derek J. Bell appeals his conviction for burglary as a level 4 felony. He raises

      one issue which we revise and restate as whether the evidence is sufficient to

      sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   On the morning of January 12, 2017, Bell went to the apartment of Demetrius

      Brooks, Sr., who lived in an apartment below the apartment of Bell’s girlfriend,

      and they talked and smoked marijuana. At some point, Bell left the apartment,

      and Brooks went to Chicago around 3:00 or 4:00 p.m. When Brooks returned

      home around midnight, he noticed his air conditioning unit was “pushed in and

      out the window,” went inside, and noticed everything was broken and that

      items, including cash, were missing. Transcript Volume II at 15. Brooks went

      to his neighbor’s door and Bell and Tasha Garret answered the door. Bell and

      Garret went to Brooks’s apartment, and Bell asked Brooks why he did not tell

      him he was going out of town.


[3]   Brooks called his brother who had previously helped him install security

      cameras. Brooks reviewed the security footage and observed his dresser fall and

      a person enter his apartment through a window. At one point in the video,

      Brooks’s brother paused the video, and Brooks identified the person as Bell

      because he had on the same pants and shoes he had just seen him wearing.

      After watching the video, Brooks sat and thought and eventually called the

      police.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2687 | September 11, 2018   Page 2 of 7
[4]   South Bend Police Officers Nathan Gates and Joseph Carey responded to the

      scene shortly before 5:00 a.m. The officers spoke with Brooks who was “getting

      his video surveillance ready,” and then went upstairs to speak with Bell, who

      was the person Brooks said had broken into his apartment. Id. at 72. After

      speaking with Bell, Officer Carey watched the video and took screenshots of the

      video. At some point, Bell admitted to taking marijuana from Brooks’s

      apartment.


[5]   On January 13, 2017, the State charged Bell with burglary as a level 4 felony.

      On July 12 and 13, 2017, a jury trial was held. Brooks testified that pushing in

      the air conditioner was the only way one could possibly enter his house because

      he had two pit bulls on his front porch and that his dresser was pinned to the

      front door so his dogs could not enter. The court admitted photographs from

      the security footage, and Brooks stated that he recognized the face and “I cut

      that face. I cut his hair. That’s him leaving. That’s him. Once he went in my

      closet, he came back past. That’s him leaving out of my room.” Id. at 30-31.

      When asked if he was able to make a copy of the video, Brooks answered: “No,

      ma’am. The way my set up is at, it’s just constantly on a record and if you

      don’t have that USB chip thing, it just wipes it out.” Id. at 33. He also stated

      that he did not have the equipment to make a recording.


[6]   On cross-examination, Bell’s counsel asked Brooks why he waited four and

      one-half hours to call the police, and Brooks answered: “Why should I? Why?

      I knew who broke in my house.” Id. at 53. When asked if he was going to

      prosecute Bell or have him arrested, Brooks answered:

      Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2687 | September 11, 2018   Page 3 of 7
              No I’m not going to prosecute or arrest. When [sic] I’m from sir,
              stealing don’t hold no consequences. I’m not no – you know
              what I’m saying? I knew who broke up in my house. I wasn’t
              thinking. I was thinking about all types of crazy stuff up in my
              head to go upstairs and do – when I saw this dude break in my
              house. The same dude that I give clothes off my back for. When
              he need anything from me, I give to him. So it took me a minute
              to think about what I wanted to do. And when I thought about
              what I wanted to do was to call the police and that’s what I did.


      Id. at 53. He added that “[b]ecause when my brother stopped the picture, it was

      clear as day is his face.” Id. at 54. He also testified that Bell loved orange, that

      his hat was orange, and that he recognized that hat. He also testified that Bell

      told the police that he broke into his house and stole marijuana. When Bell’s

      counsel asserted that the police told him it was Bell, Brooks stated:


              Factually, 100 percent – no. I told the cops who that was. They
              went upstairs and got him. I told the cops that was Derek Bell.
              That’s the guy who broke in my house. They asked me where he
              stay at. The guy is upstairs. I feel threatened. You all need to go
              get him up out of this building. That’s what I told the police. I
              told the police where he was.


      Id. at 56.


[7]   Officer Carey testified that he spoke with Bell and watched the video and that

      the person in the video matched the person he had seen upstairs. Officer Gates

      testified that Bell at one point told him that he took some marijuana but not

      money, that Officer Gates “said something along the lines of breaking into the

      house to steal weed,” and that Bell said “it wasn’t even worth it.” Id. at 121.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2687 | September 11, 2018   Page 4 of 7
       Officer Gates testified that he believed the suspect in the video was Bell. The

       jury found Bell guilty as charged, and on August 23, 2017, the court sentenced

       him to eight years in prison.


                                                   Discussion

[8]    The issue is whether the evidence is sufficient to sustain Bell’s conviction for

       burglary as a level 4 felony. When reviewing claims of insufficiency of the

       evidence, we do not reweigh the evidence or judge the credibility of witnesses.

       Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the

       evidence and the reasonable inferences therefrom that support the verdict. Id.

       The conviction will be affirmed if there exists evidence of probative value from

       which a reasonable jury could find the defendant guilty beyond a reasonable

       doubt. Id.


[9]    Ind. Code § 35-43-2-1 provides that “[a] person who breaks and enters the

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

       in it, commits burglary” and that “the offense is . . . a Level 4 felony if the

       building or structure is a dwelling . . . .”


[10]   Bell argues that the State did not prove that he was the person who broke and

       entered Brooks’s apartment. He asserts that Brooks’s testimony was inherently

       improbable “given the picture exhibits, the lack of physical evidence linking

       [him] to the crime, and the length of time Brooks took to notify the police.”

       Appellant’s Brief at 7. Bell contends that Brooks’s testimony was incredibly

       dubious. He asserts that he was arrested “after admitting to taking weed from


       Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2687 | September 11, 2018   Page 5 of 7
       Brooks’ apartment but not to breaking into the apartment.” Id. at 8. The State

       argues that the testimony as to Bell’s identity was not incredibly dubious and

       that the evidence was sufficient.


[11]   To the extent Bell asserts that the incredible dubiosity rule requires reversal of

       his conviction, we note that this rule applies only in very narrow circumstances.

       See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is expressed as

       follows:


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.


       Id. Bell fails to show that Brooks’s testimony was inherently contradictory or so

       inherently improbable that no reasonable person could believe it.


[12]   Based upon our review of the record, including the testimony of Brooks, Officer

       Carey, and Officer Gates, we conclude that the State presented evidence of a

       probative nature from which a trier of fact could find beyond a reasonable

       doubt that Bell committed the offense of burglary as a level 4 felony.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm Bell’s conviction of burglary as a level 4

       felony.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2687 | September 11, 2018   Page 6 of 7
[14]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1711-CR-2687 | September 11, 2018   Page 7 of 7
