MEMORANDUM DECISION                                                       FILED
                                                                     May 25 2016, 9:21 am

Pursuant to Ind. Appellate Rule 65(D),                                    CLERK                    FILED
                                                                                              May 25 2016, 9:20 am

                                                                                                   CLERK
                                                                                               Indiana Supreme Court
                                                                                                  Court of Appeals
                                                                                                    and Tax Court




this Memorandum Decision shall not be                                 Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael C. Borschel                                     Gregory F. Zoeller
Fishers, Indiana                                        Attorney General of Indiana

                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Johnson                                            May 25, 2016
a/k/a Garland P. Jeffers,                               Court of Appeals Case No.
                                                        49A05-1511-CR-1916
Appellant-Defendant,
                                                        Appeal from the Marion Superior
        v.                                              Court
                                                        The Honorable Lisa F. Borges,
State of Indiana,                                       Judge
                                                        Trial Court Cause No.
Appellee-Plaintiff
                                                        49G04-1407-F5-37215



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016                                    Page 1 of 8
                                               Case Summary
[1]   Mark Johnson, a/k/a Garland P. Jeffers (“Jeffers”), 1 challenges the sufficiency

      of the evidence supporting his conviction for level 5 felony burglary. Finding

      that his arguments essentially amount to requests to reweigh evidence, we

      affirm his burglary conviction. Additionally, we review sua sponte his two

      convictions for resisting law enforcement. Concluding that those convictions

      violate double jeopardy principles, we remand with instructions to vacate his

      class A misdemeanor resisting law enforcement conviction and sentence.


                                 Facts and Procedural History
[2]   The facts most favorable to the verdict are as follows. Around 11:00 p.m. on

      July 24, 2014, Nikita Barbee was sitting in her vehicle outside a storage facility

      when she observed a white pickup truck drive into a field between MacAllister’s

      Machinery and an abandoned house. She saw two men in dark clothing exit

      the pickup and run behind the abandoned house. She called 911 and stayed on

      the phone with the dispatcher as she heard thuds and noticed the two men

      loading items into the back of the pickup. Shortly thereafter, the men drove

      away in the pickup.


[3]   At that time, Beech Grove Police Officer Lee Huffman was patrolling nearby

      and observed a pickup fitting Barbee’s description. When the pickup stopped at




      1
       We note that the appellant refers to himself in his briefs and certain pro se filings as Garland P. Jeffers-El.
      As best we can discern his legal name is Garland P. Jeffers, and we refer to him as such.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016                   Page 2 of 8
      a stoplight, Officer Huffman drove up next to it and observed two African-

      American men inside. The officer made a U-turn, pulled up behind the pickup,

      and radioed for assistance. He activated his lights and attempted to initiate a

      traffic stop, but the pickup failed to stop. When the driver (Jeffers) made a U-

      turn and headed toward I-465, Officer Huffman activated his siren and radioed

      his new position to the backup officer. Again refusing to stop, Jeffers entered I-

      465 going the wrong way on an off-ramp. He made another U-turn, and the

      officer remained in pursuit. A high-speed chase ensued, with the pickup

      weaving in and out of traffic at speeds in excess of 100 miles per hour.

      Eventually the pickup exited the freeway, and the chase continued at high

      speeds through several red lights.


[4]   After the pickup crashed in front of a car lot, officers observed the driver,

      Jeffers, and his passenger, Anthony Allen, as they ran from the vehicle, through

      the car lot, and into a wooded area. With the help of a K-9 unit, officers

      apprehended Jeffers and Allen, placed them in custody, and returned with them

      to the crash site. In and around the pickup bed, police found weed eaters, leaf

      blowers, chainsaws, and hedge trimmers, all of which were subsequently linked

      by serial number to inventory missing from MacAllister’s. Police visited

      MacAllister’s’ property and found a large hole cut out of the perimeter fence

      and a pair of bolt cutters. Police also found that an ordinarily locked and barred

      door to the warehouse was unlocked. MacAllister’s service manager Tim

      Retherford reported that a man fitting Allen’s description had shopped at




      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016   Page 3 of 8
      MacAllister’s that afternoon, stayed an hour and a half, and behaved strangely

      near the unlocked door.


[5]   At the scene, Jeffers told police that his name was Mark Johnson, but police

      later determined that his real name was Jeffers. The State charged Jeffers with

      level 5 felony burglary, level 6 felony resisting law enforcement, and class A

      misdemeanor resisting law enforcement. The jury found Jeffers guilty as

      charged. The trial court entered judgment on all three counts and sentenced

      him to four years for burglary, with concurrent two-year and one-year terms on

      the resisting law enforcement counts. Jeffers now appeals. Additional facts will

      be provided as necessary.


                                  Discussion and Decision
           Section 1 – The evidence is sufficient to support Jeffers’s
                             burglary conviction.
[6]   Jeffers maintains that the evidence is insufficient to support his burglary

      conviction. When 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,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016   Page 4 of 8
      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).


[7]   Pursuant to Indiana Code Section 35-43-2-1, the State alleged that Jeffers

      committed level 5 felony burglary by breaking and entering MacAllister’s

      building or structure with intent to commit the felony of theft in it. Jeffers’s

      sufficiency claim essentially focuses on his identity.


[8]   Here, Officer Huffman received a radio dispatch of a possible burglary

      involving two men in dark clothing in a white pickup. When he saw a white

      pickup near the location described in the dispatch, he pulled up beside it,

      noticed two men inside whose dark clothing matched the witness’s description,

      and radioed for backup. Instead of stopping when Officer Huffman activated

      his lights and siren, Jeffers led the officer on a high-speed chase, which entailed

      entering the interstate going the wrong direction, making a U-turn, exiting the

      highway, running several red lights, and eventually crashing the truck. Even

      then, Jeffers and his cohort Allen fled on foot and were apprehended after

      attempting to hide from the pursuing officers. Jeffers’s flight both by vehicle

      and on foot, as well as his attempts to avoid arrest, are circumstantial evidence

      of his consciousness of guilt. See Myers v. State, 27 N.E.3d 1069, 1077 (Ind.

      2015) (“[E]vidence of flight may be considered as circumstantial evidence of



      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016   Page 5 of 8
      consciousness of guilt …. [and] evidence of an attempt to avoid arrest also tends

      to show guilt.”).


[9]   Both circumstantial and physical evidence support a reasonable inference that

      Jeffers participated in the burglary. Jeffers drove and crashed the white pickup

      and was apprehended with his passenger Allen. The contraband found in the

      pickup was identified by serial number as merchandise missing from

      MacAllister’s. MacAllister’s service manager Retherford described Allen as the

      shopper that he had encountered late that afternoon who had stayed an

      unusually long time and behaved strangely near the door that police found to

      have been unlocked, thus supporting a reasonable inference concerning the

      duo’s access to the building later that night. A large hole in the fence

      surrounding MacAllister’s as well as wire cutters found on the property the next

      day explain the means of entrance to the grounds. Barbee witnessed two men

      in clothing that matched Jeffers’s and Allen’s running from the white pickup

      and subsequently loading items into its bed in the field adjacent to

      MacAllister’s. To the extent that Jeffers challenges Barbee’s vantage point as

      the sole eyewitness, he invites us to reweigh evidence and judge witness

      credibility, which we may not and will not do. The evidence most favorable to

      the verdict is sufficient to support Jeffers’s burglary conviction.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016   Page 6 of 8
         Section 2 – We review sua sponte Jeffers’s convictions for
         resisting law enforcement and remand with instructions to
       vacate his class A misdemeanor conviction on double jeopardy
                                 grounds.
[10]   Finally, we address sua sponte the trial court’s entry of judgment against Jeffers

       on both counts of resisting law enforcement. Because double jeopardy

       violations implicate fundamental rights, we may review them sua sponte.

       Hayden v. State, 19 N.E.3d 831, 842 (Ind. Ct. App. 2014), trans. denied (2015).


[11]   Here, Jeffers was convicted of both level 6 felony resisting law enforcement and

       class A misdemeanor resisting law enforcement. The record indicates that

       Jeffers led police on a high-speed vehicle chase followed by a chase on foot. 2

       This Court has previously stated that the continuous crime doctrine “reflects a

       category of Indiana’s prohibition against double jeopardy.” Walker v. State, 932

       N.E.2d 733, 736 (Ind. Ct. App. 2010). 3 “The continuous crime doctrine is a

       rule of statutory construction and common law limited to situations where a

       defendant has been charged multiple times with the same offense.” Hines v.

       State, 30 N.E.3d 1216, 1219 (Ind. 2015). The doctrine “does not seek to




       2
         The amended affidavit charged Jeffers with level 6 felony resisting law enforcement using a vehicle (Ind.
       Code § 35-44.1-3-1(b)) and class A misdemeanor resisting law enforcement based on Jeffers’s failure to
       comply with the officers’ commands to stop (Ind. Code § 35-44.1-3-1(a)(3)).
       3
         Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
       for the same offense.” The Fifth Amendment to the United States Constitution provides that no person
       “shall be subject for the same offense to be twice put in jeopardy of life or limb.” We have discerned no
       difference between the analysis of the continuous crime doctrine under Indiana or federal law. Lewis v. State,
       43 N.E.3d 689, 691 n.1 (Ind. Ct. App. 2015).



       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016                Page 7 of 8
       reconcile the double jeopardy implications of two distinct chargeable crimes;

       rather, it defines those instances where a defendant’s conduct amounts only to a

       single chargeable crime.” Id. This Court has repeatedly determined, under

       circumstances similar to those that occurred here, that a defendant’s acts of

       fleeing by a vehicle and then on foot constitute one continuous act of resisting

       law enforcement. Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015);

       Arthur v. State, 824 N.E.2d 383, 385 (Ind. Ct. App. 2005), trans. denied; Nevel v.

       State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004).


[12]   Because Jeffers’s actions of fleeing the police by vehicle and then on foot

       constituted one continuous act of resisting law enforcement, the entry of

       judgment on both counts violated his protection against double jeopardy.

       Accordingly, we remand with instructions to vacate Jeffers’s conviction and

       sentence for class A misdemeanor resisting law enforcement. Because the trial

       court imposed concurrent sentences, the vacation of the class A misdemeanor

       conviction and sentence will have no effect on Jeffers’s aggregate sentence. In

       all other respects, we affirm.


[13]   Affirmed and remanded with instructions.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-1916 | May 25, 2016   Page 8 of 8
