Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
                                                            FILED
                                                          Dec 04 2012, 8:55 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                     CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOHN P. WILSON                                  GREGORY F. ZOELLER
Wilson & Wilson                                 Attorney General of Indiana
Greenwood, Indiana
                                                JOSEPH Y. HO
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRIAN A. MCKINNEY,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 41A05-1203-CR-126
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE JOHNSON CIRCUIT COURT
                          The Honorable K. Mark Loyd, Judge
                             Cause No. 41C01-1109-FC-79



                                     December 4, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          At the conclusion of a jury trial, Brian A. McKinney was convicted of Robbery,1 a

class C felony, Escape,2 a class C felony, and Residential Entry,3 a class D felony. On

appeal, McKinney challenges the sufficiency of the evidence, claiming that he was not

properly identified as the robber, that his entry into an individual’s apartment was not

illegal because he thought the residence had been abandoned, and that the evidence failed

to show that he intentionally fled from lawful detention.

          When considering the facts most favorable to the judgment, it is apparent that

McKinney is requesting us to reweigh the evidence, which we will not do. We conclude

that the evidence was sufficient to support McKinney’s convictions.

                                           FACTS

          On September 12, 2011, at approximately 6:00 p.m., Jay Layton was working at

the Olive Garden restaurant in Greenwood. An individual, later identified as McKinney,

approached Layton and demanded all of the money from a cash register and threatened to

“blow [Layton’s] brains out.” Tr. p. 40-41. After noticing a dark object in McKinney’s

hand, Layton feared for his life and handed over all the money in the cash drawer.

          McKinney then fled the restaurant, and Layton called the police.       Witnesses

reported that McKinney was running toward the Westminster Apartment Complex

(Westminster) just west of the Olive Garden. Greenwood Police Officer Doug Roller


1
    Ind. Code § 35-42-5-1(1).
2
    Ind. Code § 35-44-3-5(a).
3
    Ind. Code § 35-43-2-1.5.
                                              2
was on his way to the scene and a police radio dispatch described “two white males, tall,

thin, with short hair, one wearing a red hooded sweatshirt . . . one with red shorts and one

with blue jean shorts” as the perpetrators of the robbery. Tr. p. 253, 334-35.

       Other officers on patrol also received information, indicating that the Olive

Garden robber had fled to Westminster. When the officers arrived at the complex,

Officer Jay Arnold observed a male “furtively” looking at them through the window of

one of the apartment buildings. Id. at 138. Sergeant Jeff McCorkle entered the apartment

building and was in the first-floor entryway when McKinney and his brother, Brandon,

walked down the stairs. McKinney was wearing a white tank-top and loose denim shorts.

Sergeant McCorkle escorted the McKinneys outside and explained that he was detaining

them because they were suspects in the Olive Garden robbery.

       Sergeant McCorkle patted down McKinney and felt what he thought was a wad of

money in McKinney’s groin area. Officer Roller observed that paper money was hanging

out of McKinney’s underwear. The officers recovered $409 in cash from McKinney,

most of which were in one-dollar and five-dollar bills.

       Thereafter, Officer Roller picked up Layton at the Olive Garden and drove him to

Westminster. When they arrived, Layton identified McKinney as the robber. McKinney

was arrested, handcuffed, and ordered to sit on the curb. While Sergeant McCorkle

returned to his vehicle and started to clean it before transporting McKinney to jail,

McKinney stood up and started to run away. McKinney ignored Sergeant McCorkle’s

demands to stop.

                                             3
        The officers began searching Westminster for McKinney and several bystanders

directed them to one of the apartment buildings. As the officers were checking the

building, Joyce Case informed them that she had previously left her apartment with her

door unlocked and had just returned to find the door locked. Case had been moving some

of her things out of her apartment to another residence and gave the officers permission

to enter her apartment through a window. Sergeant James Prior and another officer

entered the apartment and found McKinney. Case did not know McKinney and never

gave him permission to enter the apartment. McKinney was arrested and transported to

jail.

        The State charged McKinney with the following offenses:

        Count I—Robbery, a class C felony
        Count II—Escape, a class C felony
        Count III—Residential Entry, a class D felony4
        Count IV—Residential Entry, a class D felony

        At McKinney’s jury trial that commenced on November 22, 2011, Layton testified

that he made “eye contact” with McKinney during the robbery and had a “clear view of

[McKinney’s] face.” Tr. p. 43. Layton further testified that McKinney was, “without a

doubt,” the man in the red sweatshirt and denim shorts who robbed him. Id. at 51-56.

Layton also testified that around the time of the robbery, a large amount of the currency

would have been in low denominations and in rubber bands.




4
 This charge involved another apartment where McKinney and his brother had been hiding prior to their
apprehension. As indicated below, McKinney was ultimately acquitted of this offense.
                                                 4
       Mary Marshall, a patron of the Olive Garden, testified that while parking her car in

the lot, she saw a man wearing a red sweatshirt walk into the restaurant. Marshall then

saw the same man running out of the restaurant with a “wad of money” in his right hand,

running toward the back of the building.         Tr. p. 104-07, 112.    Marshall identified

McKinney as the individual who entered and left the Olive Garden wearing a red

sweatshirt.

       Olive Garden’s manager, Carl Ericson, testified that the cash registers would have

contained mostly one-dollar and five-dollar bills.      Ericson also testified that, when

considering the time of day, and in light of the restaurant’s accounting practices,

McKinney would have stolen less than $509 from Layton’s register.

       Case testified that in September 2011, she was in the process of moving from her

apartment. Although Case did not spend every evening there, she still had “all kinds of

stuff” there. Id. at 266-67, 274-75. Case did not give McKinney permission to enter her

residence, and Sergeant Prior identified McKinney as the individual he arrested in Case’s

apartment. The State also introduced $409 seized from McKinney, which consisted of

two $100 bills and the remainder in one-dollar and five-dollar bills.

       Following the presentation of the evidence, McKinney was convicted of Counts I,

II, and IV, and he was acquitted on Count III.         At a sentencing hearing that was

conducted on February 2, 2012, McKinney was sentenced to eight years on Counts I and

II and to three years on Count IV, all to be served concurrently. McKinney now appeals.



                                             5
                            DISCUSSION AND DECISION

      When reviewing sufficiency of the evidence claims, we will not reweigh the

evidence or judge the credibility of the witnesses. Jackson v. State, 925 N.E.2d 369, 374-

75 (Ind. 2010). We also respect the jury’s exclusive province to weigh conflicting

evidence. Id. Accordingly, we consider only the probative evidence and reasonable

inferences that support the verdict. Id. We will affirm the judgment if the probative

evidence and reasonable inferences drawn from the evidence could have permitted a

reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

      Notwithstanding McKinney’s contention that the State failed to prove that he was

the robber, the State presented the testimony of two eyewitnesses and overwhelming

corroborating evidence identifying McKinney as the perpetrator. Tr. p. 41-56, 104-08,

112-15, 197-200, 211-12, 240, 314-15, 317.       This was sufficient evidence to support

McKinney’s robbery conviction.

      While McKinney argues that his conviction for escape must be set aside because

he allegedly did not flee from lawful detention, we note that “lawful detention” is defined

as an “arrest” or “any other detention for law enforcement purposes.” Ind. Code § 35-41-

1-18(1), (10). Sergeant McCorkle testified that McKinney had been placed under arrest,

and two other police officers corroborated that account. Id. at 144, 153, 179, 240-41,

317. Moreover, McKinney concedes that he was detained “as part of an investigation.”

Appellant’s Br. p. 21. This was sufficient evidence to support McKinney’s conviction for

escape.

                                            6
       Finally, McKinney argues that the evidence did not support his conviction for

residential entry.   Indiana Code section 35-43-2-1.5 provides that “A person who

knowingly or intentionally breaks and enters the dwelling of another person commits

residential entry, a class D felony.” A dwelling is defined as “a building, structure, or

other enclosed space, permanent or temporary, movable or fixed, that is a person’s home

or place of lodging.” I.C. § 35-41-1-10. In Brown v. State, our Supreme Court held that

a structure may be a dwelling even though the occupants are in the process of moving out

if they still have a right to occupy the house and their personal items still remain. 580

N.E.2d 329, 330 (Ind. 1991).

       At trial, Case testified that she had stayed at the apartment approximately three

days before McKinney entered and returned the day before to retrieve some items that

she was going to move into her new residence. Tr. p. 275. Case also testified that she

had not completely moved out or abandoned the apartment. Id. This was sufficient

evidence to support Case’s conviction for residential entry.

       The judgment of the trial court is affirmed.

RILEY, J., and BARNES, J., concur.




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