MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this                           Sep 22 2016, 8:19 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                         CLERK
                                                                       Indiana Supreme Court
purpose of establishing the defense of res judicata,                      Court of Appeals
                                                                            and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Devon Ballard,                                           September 22, 2016

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         78A01-1604-CR-733
        v.                                               Appeal from the Switzerland Circuit
                                                         Court
State of Indiana,                                        The Honorable W. Gregory Coy,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 78C01-1501-FC-18




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016       Page 1 of 12
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Devon Ballard (Ballard), appeals his conviction and

      sentence for burglary, a Class C felony, Ind. Code § 35-43-2-1.


[2]   We affirm.


                                                    ISSUES

[3]   Ballard raises two issues on appeal, which we restate as follows:

      (1) Whether there was sufficient evidence to sustain Ballard’s burglary

      conviction; and

      (2) Whether Ballard’s sentence is inappropriate in light of the nature of the

      offense and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   During the early morning hours of March 1, 2011, Ballard called Luke May

      (May), a person he had known since elementary school and played basketball

      with at a nearby park, asking whether he could borrow a saw. May agreed and

      when Ballard arrived to pick it up, Ballard informed May that he wanted to

      “cut open the pop machine” at Fairview Grocery Store. (Transcript p. 97).

      May entered Ballard’s vehicle and they drove to the grocery store. Both took

      turns at cutting the vending machine open, but they were unsuccessful. At that

      point, Ballard kicked the door to the grocery store open and after a few minutes,

      he exited the store with “an arm full of cigarettes” and proceeded to put them in

      the trunk of his car. (Tr. p. 97). According to May, Ballard went back inside


      Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 2 of 12
      the store a second time to get more cigarettes and emerged with a trash bag,

      which Ballard put in the trunk of his car.


[5]   At approximately 2:00 a.m., Jay Baker (Baker), who lived across the street was

      awakened by loud banging noises. When he looked outside, he saw a man

      banging on the vending machine outside the grocery store and another man

      inside the store. Baker saw that the men were wearing hats—with one wearing

      “a toboggan-style hat” and the other “a fedora type” of hat. (Tr. p. 37). Baker

      called the police. Meanwhile, Ballard entered the grocery store a third time.

      May, who was maintaining visual surveillance the entire time, saw the police at

      the end of the road and he warned Ballard. May took off running and when

      Ballard exited the store, he ran in another direction. Later, May and Ballard

      were reunited in the woods nearby. From there, they ran in the same direction

      before May split off and ran home. May lost his toboggan hat in the woods.


[6]   At approximately 4:00 a.m., Detective Chris Curry (Detective Curry) of the

      Switzerland County Sheriff’s Department was dispatched to provide assistance

      with his K-9 partner in the burglary investigation. Detective Curry and the K-9

      unit tracked the suspects’ footprints through the field behind the grocery store

      and into a large wooded area. The officers were unable to continue with the

      search because the vegetation became too dense and it was dark. The following

      day, Detective Curry returned to the grocery store to survey the scene.

      Detective Curry observed that the store’s merchandise was in disarray, there

      was damage to a vending machine outside, and tools had been left outside—

      namely a reciprocal saw, a sledge hammer, and a screwdriver. In addition, the

      Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 3 of 12
      K-9 officer sniffed out a toboggan hat and brown glove in the woods nearby.

      Alice Webb (Webb), a co-owner of the grocery store, indicated to the police

      that she was missing a Tupperware container with $80 worth of change that

      they had removed from the vending machine the day before, coin rolls worth

      about $40, and about 24-30 packs of cigarettes. Local businesses were notified

      to be on the lookout for anyone using a large amount of change. On the same

      day, March 1, 2011, Ballard bought merchandise with rolled and loose change

      at a Marathon Gas Station. Ballard also used $60 in loose change to purchase a

      pre-paid phone card. Also, at a BP Gas Station, Ballard paid for merchandise

      with $10 in rolled quarters, and he exchanged $30 of rolled quarters for paper

      currency. The next day, March 2, 2011, Ballard went again to the Marathon

      Gas Station and asked to exchange a pack of cigarettes for money. The owner,

      who did not recall Ballard ever buying a carton of cigarettes at his store,

      refused.


[7]   On March 3, 2011, Deputy Sherriff Richard Lock (Deputy Lock) interviewed

      Ballard. Ballard admitted that he used loose change to make purchases at BP

      and Marathon gas stations, and at CVS. A search warrant was subsequently

      obtained. When the police arrived to search Ballard’s residence, they found the

      gate locked. Assistance was called to bring a bolt cutter, and while the officers

      were waiting, they saw a vehicle driving away from the residence and far back

      into a field and then returning to the residence. When the bolt cutter arrived,

      the officers gained entry to Ballard’s home but they did not find evidence linked

      to the burglary. A few days later, David Gilbert (Gilbert) bought twenty packs


      Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 4 of 12
      of Marlboro cigarettes from Ballard for $60, and Ballard gave him three free

      packs of cigarettes. On March 10, 2011, Michael Gray (Gray) went to Ballard’s

      residence and bought twenty packs of Marlboro Light for $50.


[8]   Several months later, hair that had been found in the toboggan hat was linked

      to May through DNA testing. In January of 2015, May was interviewed, but

      he denied any involvement in the 2011 burglary. On February 9, 2016, the

      State filed an Information, charging Ballard with Count I, burglary, a Class C

      felony, I.C. § 35-43-2-1; and Count II, theft, a Class D felony, I.C. § 35-43-4-2.

      On February 16, 2016, the State added a third Count, vending machine

      vandalism, a Class B misdemeanor, I.C. § 35-43-4-7. A jury trial was held on

      February 16-18, 2016. In exchange for a reduced sentence, May testified at

      Ballard’s trial. At the close of the hearing, the jury found Ballard guilty as

      charged. On March 18, 2016, the trial court held a sentencing hearing. The

      trial court vacated Ballard’s conviction for theft and subsequently sentenced

      Ballard to four years in the Department of Correction for the burglary

      conviction—with eighteen months executed, eighteen months in home

      detention, and one year suspended to probation. Regarding to his vending

      machine vandalism conviction, the trial court sentenced Ballard to an executed

      sentence of 180 days.


[9]   Ballard now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 5 of 12
                                   DISCUSSION AND DECISION

                                        I. Sufficiency of the Evidence

[10]   Ballard first argues that the evidence is insufficient to sustain his conviction

       because May’s testimony was incredibly dubious. In reviewing a challenge to

       the sufficiency of evidence, we neither reweigh evidence nor judge witness

       credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we

       consider only the evidence and reasonable inferences most favorable to the

       verdict and will affirm the 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.” Id. (citation omitted). “Where the evidence of guilt is

       essentially circumstantial, the question for the reviewing court is whether

       reasonable minds could reach the inferences drawn by the jury; if so, there is

       sufficient evidence.” Jones v. State, 924 N.E.2d 672, 674 (Ind. Ct. App. 2010)

       (citation omitted). Without question, a burglary conviction may be supported

       solely by circumstantial evidence. Brink v. State, 837 N.E.2d 192, 196 (Ind. Ct.

       App. 2005).


[11]   This court may impinge upon the jury’s responsibility to judge the credibility of

       witnesses only when confronted with inherently improbable testimony or

       coerced, equivocal, wholly uncorroborated testimony. Lawson v. State, 966

       N.E.2d 1273, 1281 (Ind. Ct. App. 2012). If a sole witness presents inherently

       improbable testimony and there is a complete lack of circumstantial evidence, a

       defendant’s conviction may be reversed. Fajardo v. State, 859 N.E.2d 1201,

       Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 6 of 12
       1208 (Ind. 2007). This is appropriate only where the court has confronted

       inherently improbable testimony or coerced, equivocal, and wholly

       uncorroborated testimony of incredible dubiosity. Id. Incredibly dubious or

       inherently improbable testimony is that which runs counter to human

       experience and which no reasonable person could believe. Campbell v. State, 732

       N.E.2d 197, 207 (Ind. Ct. App. 2000). This incredible dubiosity rule applies

       only when a witness contradicts himself in a single statement or while

       testifying, and does not apply to conflicts between multiple statements. Glenn v.

       State, 884 N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. denied.


[12]   At Ballard’s jury trial, May testified that Ballard called him at around midnight

       and asked him whether he had a saw. Ballard then picked up May and drove to

       Fairview Grocery Store. May testified that Ballard kicked the door to the store

       open and exited moments later with an arm full of cigarettes, and in a second

       entry, Ballard returned with a trash bag which May believed to have contained

       more packs of cigarettes.


[13]   As for Ballard’s claim that May’s testimony is unbelievable, his argument fails

       because there was enough circumstantial evidence to support May’s testimony

       that Ballard committed burglary. Webb, a co-owner of the grocery store,

       informed the police that she was missing a Tupperware container with $80

       worth of loose change which she had taken from the vending machine the day

       before, and about $40 of rolled coins. Also missing from the store were

       approximately thirty packs of cigarettes. Shortly after the break-in, local

       businesses were notified to be on the lookout for someone using loose change to

       Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 7 of 12
       make purchases. On the days that followed the burglary incident, Ballard used

       both loose and rolled coins to make purchases at CVS and several gas stations.

       In addition, close in time to the break-in, Ballard sold a substantial amount of

       cigarettes to two people.


[14]   To the extent that Ballard claims that May’s testimony is incredibly dubious

       because he altered his narration of events at trial implicating Ballard in the

       burglary, we note that a witness’s trial testimony that contradicts that witness’s

       earlier statements does not make such testimony incredibly dubious. See

       Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001). Lastly, Ballard points to

       May’s offhanded statement to the police where he stated “that a nigger is going

       to do what he’s going to do.” (Tr. p. 55). Ballard contends that this injected a

       bias with the jury members. In other words, Ballard suggests that his race—

       being black, was the only evidence of guilt. We disagree. Even without May’s

       testimony, the State would still have had enough evidence to convict Ballard of

       burglary. The day after the burglary, Ballard was seen cashing large amounts of

       loose and rolled change at several local stores. Also, Ballard attempted to get

       cash for a pack of cigarettes he never purchased from a Marathon gas station.

       In that same month, Ballard sold packs of cigarettes to two individuals on

       separate occasions.


[15]   With regard to Ballard’s argument that May’s testimony was not credible since

       it was offered in exchange for a mitigated sentence, we note that May’s

       testimony was exposed to the jury’s scrutiny because he too had been charged

       with the same crimes. Also, the jury was made aware of those charges, his

       Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 8 of 12
       guilty plea, and sentence. It was within the jury’s sole province to determine

       the credibility of May’s testimony. See Buelna v. State, 20 N.E.3d 137 (Ind.

       2014) (jury could reject or rely on the testimony of an accomplice to determine

       the defendant’s guilt beyond a reasonable doubt); see also White v. State, 706

       N.E.2d 1078, 1080 (Ind. 1999) (incredible dubiosity rule did not apply where

       witnesses testified and circumstantial evidence supported convictions even

       though three witnesses provided different information after being offered

       incentives; jury was presented with information about the incentives). In light

       of the foregoing, we conclude that there was sufficient evidence to sustain

       Ballard’s conviction for burglary.


                                             II. Inappropriate Sentence 1


[16]   Lastly, Ballard contends that his four-year sentence is inappropriate in light of

       the nature of the offense and his character. Indiana Appellate Rule 7(B)

       provides that we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [we find] that the sentence is




       1
         Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
       investigation (PSI) report must be excluded from public access. However, in this case, the information
       contained in the PSI report “is essential to the resolution” of Ballard’s claim on appeal. Ind. Admin. Rule
       9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent
       necessary to resolve the appeal.

       Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016          Page 9 of 12
       inappropriate in light of the nature of the offense and the character of the

       offender.” The burden is on the defendant to persuade the appellate court that

       the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). “Ultimately the length of the aggregate sentence and how it is to be

       served are the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224

       (Ind. 2008). Whether we regard a sentence as appropriate at the end of the day

       turns on our sense of the culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad of other considerations that come to

       light in a given case. Id.


[17]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). For his Class C felony burglary, Ballard faced a sentencing

       range of two to eight years, with the advisory sentence being four years. I.C. §

       35-50-2-6. Here, the trial court imposed the advisory sentence.


[18]   As to the nature of the offense, Ballard called May in the middle of the night

       and asked to borrow a saw to open the vending machine outside Fairview

       Grocery Store. Ballard also enlisted the help of May. While May struggled to

       cut the vending machine open, Ballard kicked the door to the store open and

       made repeated trips into the store. Ballard only stopped taking items from the

       store when May warned him that the police were coming.


[19]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 10 of 12
       App. 2007). Ballard claims that he is a law-abiding citizen with a limited

       criminal history. While Ballard does not have an extensive criminal history,

       which includes one adjudication as a juvenile for public intoxication and two

       convictions of driving while suspended, the record shows that Ballard has not

       led a law-abiding life. In the PSI, Ballard admitted to using marijuana from age

       thirteen and that he became a regular smoker shortly thereafter. Ballard also

       disclosed that from age sixteen, he began using pain pills every day until he was

       twenty-two years old. In addition, Ballard confessed to using heroin from age

       seventeen and that he became heavily addicted to it. See Bryant v. State, 802

       N.E.2d 486, 501 (Ind. Ct. App. 2004) (holding that when a defendant is aware

       that a substance abuse problem exists but does not seek treatment, the failure to

       act indicates something aggravating rather than mitigating about his character).


[20]   Moreover, we note that Ballard was sentenced to four years for the burglary

       conviction, with eighteen months of his sentence to be served in the Switzerland

       County Jail, the other eighteen months of his sentence to be served in home

       detention, and the balance was suspended to probation. The trial court appears

       to have fashioned a sentence for Ballard that is appropriate to the nature of the

       offense and the character of the offender. We do not find otherwise.


                                                CONCLUSION


[21]   Based on the foregoing, we conclude that there was sufficient evidence to

       convict Ballard of burglary, and Ballard’s sentence is appropriate in light of the

       nature of the offense and his character.


       Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 11 of 12
[22]   Affirmed.


[23]   Barnes, J. concurs


[24]   Bailey, J. concurs in result




       Court of Appeals of Indiana | Memorandum Decision 78A01-1604-CR-733 | September 22, 2016   Page 12 of 12
