MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Mar 17 2020, 9:19 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
Jeffery Haupt                                            Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                              Attorney General of Indiana
South Bend, Indiana
                                                         Zachary R. Griffin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Lloyd Dunn, II,                                     March 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1794
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Margot F. Reagan,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Julie Verheye,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71D04-1812-CM-4299



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020                   Page 1 of 7
                                       Statement of the Case

[1]   Following a bench trial, John Lloyd Dunn (“Dunn”) was found guilty of Class

      A misdemeanor theft.1 On appeal, Dunn challenges the sufficiency of the

      evidence used to convict him. Concluding that the State presented sufficient

      evidence, we affirm Dunn’s theft conviction.


[2]   We affirm.


                                                     Issue

                       Whether sufficient evidence supports Dunn’s conviction.


                                                     Facts

[3]   On November 28, 2018, Elaine Sera (“Sera”) looked out of the window of the

      doctor’s office where she worked and noticed two individuals walking down the

      street in South Bend. One of the individuals was carrying a large “alcoholic

      bottle[,]” and they both “appeared to be intoxicated.” (Tr. 4). Sera watched as

      the two individuals walked past her office and approached the mailbox of the

      home next door. One of the individuals opened the mailbox and removed its

      contents. Most of the mail was thrown onto the ground. However, the

      individual kept a package that was inside the mailbox. Anthony Sergio

      (“Sergio”), who lived in the home next to the doctor’s office, was expecting to



      1
          IND. CODE § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020   Page 2 of 7
      receive an “Anker PowerLine II [phone] charging cable” from an order he had

      placed with Amazon. (Tr. 7). Sergio had received a notification that his

      package had been delivered.


[4]   After Sergio received a phone call from Sera informing him of her observations,

      he walked outside and found his mail on the ground. Sergio called 911 and

      began walking down the street in the direction that the two individuals had

      been seen heading. Sergio continued walking until he saw two individuals,

      who matched the description Sera had given him, standing on the other side of

      the street. Sergio informed the 911 operator of his observation and requested

      that the operator send an officer to his location.


[5]   South Bend Police Officer Andrew Ream (“Officer Ream”) responded to

      Sergio’s call. Officer Ream located the two individuals, later identified as Dunn

      and Otis Rowe (“Rowe”). Officer Ream explained to Dunn and Rowe that he

      had received a report that property had been taken from a mailbox. Dunn

      informed Officer Ream that neither he nor Rowe had stolen any property.

      Dunn then advised Officer Ream that he could check his pockets. During this

      search, Officer Ream “found a[n] empty box for an Anker brand phone cable.”

      (Tr. 11). Officer Ream then asked Dunn if he had a receipt for the item, and

      Dunn replied that he did not. Another officer arrived on scene and performed a

      search of Rowe, which yielded an Anker PowerLine II phone charging cable

      with its zip-up case.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020   Page 3 of 7
[6]   The State charged Dunn with Class A misdemeanor theft. The trial court

      conducted a bench trial, wherein the State called Sera, Sergio, and Officer

      Ream to testify to the facts above. After the State rested, Dunn testified that he

      and Rowe were walking together on November 28. He explained that he had

      been drinking all day and was drunk at the time Sergio’s package was stolen.

      Dunn also admitted that he was “the one that had the bottle of wine.” (Tr. 17).

      When asked on direct examination how the empty phone charging cable box

      got into his pocket, Dunn responded “I don’t know. We were walking next --

      maybe [Rowe] put it in my pocket. I don’t know. I didn’t put it in my pocket.”

      (Tr. 18).


[7]   Thereafter, the trial court found Dunn guilty as charged, stating:


              And it was clear from the testimony of Ms. Sera that both people
              were involved in messing around with the mailbox. So, I’m going
              to find the defendant guilty. Whether as a principal or as someone
              who aided and abetted in the offense. It doesn’t matter.

      (Tr. 24). The trial court sentenced Dunn to a twenty (20) day suspended

      sentence and placed him on probation for 180 days. Dunn now appeals.


                                                  Decision

[8]   Dunn argues that the State presented insufficient evidence to support his

      conviction for Class A misdemeanor theft. Our standard of review for

      sufficiency of evidence claims is well-settled. We do not assess the credibility of

      the witnesses or reweigh the evidence in determining whether the evidence is

      sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020   Page 4 of 7
      the probative evidence and reasonable inferences supporting the verdict. Id.

      Reversal is appropriate only when no reasonable fact-finder could find the

      elements of the crime proven beyond a reasonable doubt. Id. The evidence is

      not required to overcome every reasonable hypothesis of innocence and is

      sufficient if an inference may reasonably be drawn from it to support the

      verdict. Id. at 147.


[9]   To convict Dunn of Class A misdemeanor theft, the State was required to prove

      beyond a reasonable doubt that Dunn “knowingly or intentionally exert[ed]

      unauthorized control over property of another person, with intent to deprive the

      other person of any part of its value or use[.]” I.C. § 35-43-4-2. Here, the trial

      court found that Dunn was guilty of theft as a principal or an accomplice. An

      accomplice is any person who knowingly or intentionally aids, induces, or

      causes another to commit an offense. I.C. § 35-41-2-4. The factors used to

      determine whether a person is an accomplice include: (1) presence at the scene

      of the crime; (2) companionship with another at the scene of the crime; (3)

      failure to oppose the commission of the crime; and (4) course of conduct before,

      during, and after the crime. Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012).

      Generally, there is no distinction between the criminal liability of an

      accomplice and a principal. Jester v. State, 724 N.E.2d 235, 241 (Ind. 2000).

      Evidence that the defendant participated in every element of the underlying

      offense is not necessary to convict a defendant as an accomplice. Vitek v. State,

      750 N.E.2d 346, 352 (Ind. 2001). Rather,




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020   Page 5 of 7
                       [t]here must be evidence [of] affirmative conduct, either in
                       the form of acts or words, from which an inference of a
                       common design or purpose to effect the commission of a
                       crime may be reasonably drawn. Each participant must
                       knowingly or intentionally associate himself with the
                       criminal venture, participate in it, and try to make it
                       succeed. That said, the State need not show that [the
                       accomplice] was a party to the preconceived scheme; it
                       must merely demonstrate concerted action or participation
                       in an illegal act.

       Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014) (internal citations

       omitted).


[10]   Dunn contends that his actions were inconsistent with someone who aided in

       the commission of theft because “he offer[ed] his coat to be searched” and did

       not take “any sort of actions to conceal Rowe’s or his involvement.” (Dunn’s

       Br. 10). We disagree.


[11]   Here, the evidence allowed the trial court to reasonably infer that Dunn acted

       as an accomplice in the commission of theft. First, it is undisputed that Dunn

       was at the scene of the crime with Rowe, evidenced by Dunn’s admission at

       trial that he was with Rowe on the day in question. Second, Dunn and Rowe

       were companions at the scene. Sera testified that two individuals, one of whom

       was holding a large bottle of alcohol and appearing to be intoxicated,

       approached Sergio’s mailbox and removed a package, which contained a phone

       charging cable. Dunn later admitted that he was “drunk” and was “the one

       that had the bottle of wine.” (Tr. 17). Third, after the package was removed,

       the two individuals continued walking together down the street. Lastly, after

       Officer Ream stopped Dunn and Rowe and explained to them that he had

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020   Page 6 of 7
       received a report that property had been taken from a mailbox, Dunn stated

       that neither he nor Rowe had any stolen property. A subsequent search of

       Dunn’s pocket, which he invited Officer Ream to conduct, produced the empty

       Anker PowerLine phone charging cable box. The actual phone charging cable

       was then recovered from Rowe. Thus, the evidence, and all the favorable

       inferences drawn therefrom, demonstrates that Dunn: (1) was present at the

       scene of the crime; (2) acted as a companion with Rowe; (3) failed to oppose

       the commission of the theft; and (4) took actions to conceal their involvement

       by denying that they had any stolen property, while simultaneously possessing

       the empty phone charging box in his pocket. Accordingly, Dunn’s argument

       that his actions were inconsistent with someone who aided in the commission

       of theft must fail, and we affirm his theft conviction.


[12]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1794 | March 17, 2020   Page 7 of 7
