                                                                      Aug 07 2015, 8:54 am




      ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
      Jeremy K. Nix                                         Gregory F. Zoeller
      Matheny, Hahn, Denman & Nix, L.L.P.                   Attorney General of Indiana
      Huntington, Indiana
                                                            Larry D. Allen
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Timothy H. Bryant,                                         August 7, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 90A04-1501-CR-11

              v.                                                 Appeal from the Wells Circuit Court
                                                                 The Honorable Kenton W. Kiracofe,
                                                                 Judge
      State of Indiana,
                                                                 Trial Court Cause No. 90C01-1402-
      Appellee-Plaintiff.                                        FC-1




      Bradford, Judge.



                                           Case Summary
[1]   In 2013, Appellant-Defendant Timothy Bryant owned and operated Summit

      City North West All Products (“Summit City”), a pawnshop in Fort Wayne,

      Allen County. Bryant was required by local ordinance to upload records of


      Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015                 Page 1 of 13
      every item purchased by him or pawned at Summit City to LEADS, an online

      database established to facilitate the recovery of stolen goods. In September of

      2013, authorities received a tip regarding a series of thefts, which led to Isaiah

      Burnau, who was found to have pawned a stolen chainsaw at another Fort

      Wayne pawnshop. The investigation soon led to Kristy Coverdale and Tony

      Haney. As it turned out, several items had been stolen in Wells County and

      pawned at Summit City and other pawnshops. It was also discovered that none

      of the items purchased from Isaiah, Coverdale, or Haney had been uploaded to

      LEADS. Appellee-Plaintiff the State of Indiana charged Bryant in Wells

      County with several crimes, and he was ultimately convicted of two counts of

      Class D felony aiding, inducing, or causing receiving stolen property and Class

      C felony corrupt business influence. Bryant contends that the trial court abused

      its discretion in denying his mistrial motion based on alleged prosecutorial

      misconduct and that the State failed to establish venue in Wells County. We

      affirm.



                             Facts and Procedural History
[2]   In September of 2013, Bryant owned Summit City, a pawnshop in Fort Wayne.

      Pursuant to Fort Wayne ordinance, Bryant was required to collect and, within

      twenty-four hours, upload information regarding any item sold or pawned to

      LEADS. Also in September of 2013, the authorities received a report from

      Keith and Debra Burnau that items had been stolen from their home and homes




      Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015    Page 2 of 13
      of their relatives. The Burnaus believed that their grandson Isaiah had been

      stealing from the homes with the help of Haney and Coverdale.


[3]   Wells County Sheriff’s Detective Diane Betz was assigned the case and checked

      the LEADS database to see if Isaiah, Haney, or Coverdale had recently sold

      items to pawn shops. Detective Betz discovered that Isaiah had recently sold a

      chainsaw that had been reported stolen to a Cash America pawnshop in Fort

      Wayne. Detective Betz interviewed Isaiah, who admitted that he and

      Coverdale had sold stolen items at pawnshops, including stereo equipment

      from a car and a train set from a house in Wells County. Isaiah admitted to

      selling stolen goods at least a dozen times at Summit City. Detective Betz

      searched LEADS again but did not find any record of the stolen items.


[4]   Detective Betz also interviewed Coverdale, who admitted that she had driven

      Isaiah and Haney from Wells County to Summit City to sell stolen goods. At

      the time of the thefts, Coverdale was in a sexual relationship with Bryant, and

      the two were in frequent contact by telephone and text message. Coverdale

      sold stolen stereo equipment to Bryant at Summit City. Bryant told Coverdale

      that he knew the stereo items were stolen but that “he would take care of it” by

      “get[ting] rid of [her] LEADS.” Tr. p. 289.


[5]   Detective Betz also interviewed Haney. Haney admitted that he had stolen the

      trains from a home where his mother worked as a housekeeper and sold them

      to Summit City. Haney told Detective Betz that he, Coverdale, and Isaiah took




      Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015   Page 3 of 13
      carloads of stolen goods to Summit City and sold them. Detective Betz found

      that the trains were being sold by Summit City on eBay.


[6]   Detective Betz contacted Fort Wayne Police Detective Joseph Lyons, who

      specialized in pawnshops. Detectives Betz and Lyons went to Summit City and

      asked employee Thomas Skinner if Summit City had any Pioneer stereo

      equipment for sale. Skinner directed the detectives to equipment that matched

      the description of equipment that had been stolen in Wells County. The

      Detectives also found several collector train engines at Summit City. When the

      detectives examined Summit City’s sales records, they found records of sales by

      Haney, Coverdale, and Isaiah, none of which had been uploaded to LEADS.

      When confronted with the discrepancy, Bryant claimed that he did not believe

      he had to upload information about the items to LEADS because they were not

      worth enough. There are, in fact, no exceptions made in the LEADS ordinance

      for items of low value.


[7]   On February 19, 2014, the State filed seven charges against Bryant: two counts

      of Class D felony aiding, inducing, or causing theft; two counts of Class D

      felony aiding, inducing, or causing receiving stolen property; two counts of

      Class D felony conspiracy to commit receiving stolen property; and Class C

      felony corrupt business influence.


[8]   Bryant’s trial was held October 29 through 31, 2014. During trial, Bryant called

      Skinner as a witness. Bryant offered into evidence Defendant’s Exhibit A,

      which consisted of Summit City sales records involving Coverdale, Haney,


      Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015   Page 4 of 13
      Isaiah, Randy Haney, and Elizabeth Haney.1 Skinner testified that he had had

      difficulties uploading transaction information to LEADS. During cross-

      examination, the prosecutor asked Skinner why certain purchases from Haney,

      Coverdale, and Isaiah were not uploaded to LEADS, Skinner reiterated that he

      had had problems with LEADS:


                Q. Okay. During any of this period of time that you said you
                thought you had, that you testified that you had these alleged
                upload problems, did you call Detective Lyons and report upload
                problems?
                A. I had talked with him and told him that I’d had problems.
                Q. How many times during this period of time did you call and
                talk to him and were [you] talking about say from May of [2013]
                up to the time they came and took the property?
                A. It had been two or three times.
                Q. Two or three times and wouldn’t it have been helpful to
                explain these upload problems occurred to other people by
                bringing in these other records to show that you had made
                attempts and their property didn’t get uploaded on the…
      Tr. p. 379.


[9]   Bryant objected to the prosecutor’s statement on the basis that it constituted an

      attempt to shift the burden of producing evidence onto Bryant. Bryant also

      moved for a mistrial, which motion the trial court denied. During the State’s




      1
          Elizabeth Haney is Tony Haney’s mother, while Randy Haney’s relationship to Tony is unclear.


      Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015                       Page 5 of 13
       closing, the prosecutor noted that the burden of proof was on the State. The

       trial court also instructed the jury that


               [u]nder the law of this State, a person charged with a crime is
               presumed to be innocent. To overcome the presumption of
               innocence, the State must prove the Defendant guilty of each
               element of the crime charged, beyond a reasonable doubt. The
               Defendant is not required to present any evidence to prove his innocence
               or to prove or explain anything.
       Tr. p. 463 (emphasis added). The trial court also instructed the jury that “[t]he

       burden of proof is upon the State to prove beyond a reasonable doubt that the

       Defendant is guilty of the crime charged.” Tr. p. 463.


[10]   Following trial, a jury found Bryant guilty of two counts of aiding, inducing, or

       causing receiving stolen property and corrupt business influence. On

       November 24, 2014, the trial court sentenced Bryant to an aggregate sentence of

       four years of incarceration.


                                   Discussion and Decision
                                  I. Prosecutorial Misconduct
[11]   Bryant contends that the trial court abused its discretion in denying his mistrial

       motion based on alleged prosecutorial misconduct.


               To support a motion for mistrial based upon prosecutorial
               misconduct, the defense must show that the prosecutor’s actions
               constituted misconduct by reference to established norms of
               professional conduct, and that the ensuing prejudice placed him
               in a position of grave peril to which he should not have been
               subjected. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d

       Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015            Page 6 of 13
               843. Whether the misconduct results in grave peril is determined
               not by the degree of impropriety involved, but by its probable
               persuasive effect upon the jury. Id.; Andrews v. State (1989), Ind.,
               536 N.E.2d 507. This effect, in turn, is assessed not by whether
               its absence conclusively would lead to an acquittal; rather,
               reversal is required where the evidence is close and the trial court
               fails to alleviate the prejudicial effect. Johnson v. State (1983), Ind.
               App., 453 N.E.2d 365. Even where an isolated instance of
               misconduct does not establish grave peril, if repeated instances
               evidence a deliberate attempt to improperly prejudice the
               defendant, a reversal still may result. Robinson v. State (1973), 260
               Ind. 517, 297 N.E.2d 409.
       Everroad v. State, 571 N.E.2d 1240, 1244 (Ind. 1991).


[12]   Bryant argues essentially that the prosecutor’s comment shifted the burden to

       him to establish his innocence by producing documentary evidence that the

       problems uploading information to LEADS were real. While “[i]t is improper

       for a prosecutor to suggest that a defendant shoulders the burden of proof in a

       criminal case[,]” Stephenson v. State, 742 N.E.2d 463, 483 (Ind. 2001), no such

       suggestion was made or implied. Bryant called Skinner in an attempt to

       establish, inter alia, that records of purchases from the Haneys, Coverdale, and

       Isaiah were not uploaded to LEADS due to technical issues. This evidence

       contradicted testimony the State presented from Detective Lyons that during his

       investigation nobody at Summit City ever blamed technical difficulties for their

       failure to upload records. Even assuming that Defendant’s Exhibit A bolstered

       Skinner’s testimony (which is a generous assumption), the prosecutor’s

       comment was merely a statement on evidence that Bryant himself introduced.

       We conclude that, far from improper burden-shifting, this was permissible


       Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015       Page 7 of 13
       impeachment of a defense witness, arising from evidence the defendant

       introduced. See Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988) (“[A]

       prosecutor may comment on the credibility of the witnesses as long as the

       assertions are based on reasons which arise from the evidence.”).


[13]   Bryant also argues that the prosecutor’s comments were a violation of his Fifth

       Amendment right against self-incrimination.


               The Fifth Amendment to the United States Constitution provides
               that no person “shall be compelled in any criminal case to be a
               witness against himself.” This privilege extends to the States
               through the Fourteenth Amendment. Withrow v. Williams, 507
               U.S. 680, 689, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993). …
               In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d
               106 (1965), the United States Supreme Court held that the Fifth
               Amendment prohibits the prosecution from commenting on a
               defendant’s decision not to testify at trial. The Griffin Court
               reasoned that comment on the refusal to testify amounts to a
               penalty imposed by courts for exercising a constitutional privilege
               and that to allow such comment would impinge on the privilege
               against self-incrimination by making its assertion costly. Id. at
               614, 85 S. Ct. 1229. The Griffin Court noted that a comment on
               the defendant’s refusal to testify is “a remnant of the inquisitorial
               system of criminal justice, which the Fifth Amendment outlaws.”
               Id. (citation and quotation marks omitted).
       Owens v. State, 937 N.E.2d 880, 885-86 (Ind. Ct. App. 2010) (footnote omitted).


[14]   Again we must disagree with Bryant. Put simply, the prosecutor’s comments

       did not explicitly refer to Bryant’s decision not to testify, and we conclude that

       no reasonable person could have interpreted them as such. The comments

       were, at most, a comment on an arguable weakness of the documents admitted

       Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015    Page 8 of 13
       as Defendant’s Exhibit 1, i.e., the lack of records pertaining to persons other

       than the Haneys, Coverdale, and Isaiah. We conclude that the prosecutor’s

       comments did not implicate Bryant’s Fifth Amendment rights. See Boatright v.

       State, 759 N.E.2d 1038, 1043 (Ind. 2001) (“If in its totality, however, the

       prosecutor’s comment is addressed to other evidence rather than the

       defendant’s failure to testify, it is not grounds for reversal.”).


[15]   Moreover, we conclude that to the extent that the prosecutor’s comments were

       arguably improper, any small potential of harm caused thereby was cured. The

       prosecutor mentioned in closing that the burden of proof rested on the State,

       and the trial court’s final instructions made that abundantly clear as well as

       informing the jury that Bryant was not required to introduce any evidence on

       his behalf or prove anything. We conclude that this was sufficient to cure any

       misconduct that the prosecutor might have committed. See Stephenson, 742

       N.E.2d at 483 (Ind. 2001) (“It is improper for a prosecutor to suggest that a

       defendant shoulders the burden of proof in a criminal case. However, a

       prosecutor’s improper statements suggesting a defendant’s failure to present

       witnesses may be cured by the trial court advising the jury that the defendant

       was not required to prove his innocence or to present any evidence.”) (citation

       omitted).


                                                   II. Venue
       Bryant contends that the State failed to establish venue in Wells County.




       Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015   Page 9 of 13
               Except as otherwise provided by law, criminal actions are to be
               tried in the county where the offense was committed. Ind. Code
               § 35-32-2-1; Kindred v. State, 540 N.E.2d 1161, 1167 (Ind. 1989).
               If an offense is committed in Indiana and it cannot readily be
               determined in which county the offense was committed, trial
               may be in any county in which an act was committed in
               furtherance of the offense. Id. If the commission of an offense is
               commenced in one county and is consummated in another
               county, trial may be had in either of the counties. Andrews v.
               State, 529 N.E.2d 360, 363 (Ind. Ct. App. 1988), reh’g denied,
               trans. denied.
               It is the State’s burden to prove that the offenses charged
               occurred in the county identified in the charging information.
               Venue must be proven by a preponderance of the evidence and
               may be established by circumstantial evidence. Buzzard v. State,
               669 N.E.2d 996, 997 (Ind. Ct. App. 1996).
       Wurster v. State, 708 N.E.2d 587, 599 (Ind. Ct. App. 1999)


[16]   Bryant does not dispute that at least some of the items stolen and later sold to

       him were taken from victims in Wells County, nor does he argue that venue for

       the crimes of which he was convicted cannot lie in multiple counties. Bryant

       argues only that the State failed to establish Wells County as a proper venue for

       his prosecution because it produced no evidence that he knew the items were

       stolen from victims in Wells County. This argument is misguided.


[17]   In rejecting Bryant’s argument, we find the United States Court of Appeals for

       the Fourth Circuit’s resolution of a similar claim to be particularly persuasive.

       In United States v. Johnson, the defendant was charged with, inter alia, causing

       the filing of a false and fraudulent document with the Securities Exchange

       Commission (“SEC”), which charge was dismissed by the district court for the

       Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015    Page 10 of 13
       Eastern District of Virginia for lack of venue. 510 F.3d 521, 522 (4th Cir.

       2007). Johnson argued in defense of the district court’s dismissal that he could

       not have foreseen that the document at issue would be transmitted to the

       Eastern District of Virginia, where certain computer servers of the SEC (which

       is headquartered in the District of Columbia) are located. Id. at 522, 524.


[18]   The Court rejected Johnson’s argument that there should be a mens rea

       requirement when it comes to venue. The Court first noted that section 78aa of

       Title 15 of the United States Code applied, id. at 524, which provides in part

       that “[a]ny criminal proceeding may be brought in the district wherein any act

       or transaction constituting the violation occurred.” The Court continued:


               In the context of securities offenses, we need not speculate as to
               whether there is, or should be, a mens rea requirement when it
               comes to venue. This is because the plain text of § 78aa does not
               permit us to hold that such a foreseeability requirement exists.
               The statute states simply that “[a]ny criminal proceeding may be
               brought in the district wherein any act or transaction constituting
               the violation occurred.” 15 U.S.C. § 78aa. Accordingly, we
               decline the invitation to judicially engraft a mens rea requirement
               onto a venue provision that clearly does not have one.
               If Congress had wanted to limit venue to those districts where the
               defendant could have reasonably foreseen his criminal conduct
               taking place, it could have easily done so. Instead, it enacted a
               broad venue provision, one that lacked any reference to a
               defendant's mental state or predictive calculus, and focused solely
               on whether “any act or transaction constituting the violation”
               took place in the district. 15 U.S.C. § 78aa.
               We are especially reluctant to imply a foreseeability requirement
               in light of the fact that it “is well settled that mens rea
               requirements typically do not extend to the jurisdictional

       Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015   Page 11 of 13
               elements of a crime.” United States v. Cooper, 482 F.3d 658, 664
               (4th Cir. 2007). This is because venue is similar in nature to a
               jurisdictional element, see United States v. Perez, 280 F.3d 318, 330
               (3d Cir. 2002) (noting that venue is “an element more akin to
               jurisdiction than to the substantive elements of the crime”)
               (quoting United States v. Massa, 686 F.2d 526, 530 (7th Cir.
               1982)), and typically lacks any sort of explicit knowledge or
               foreseeability prerequisite, see, e.g., Fed. R. Crim. P. 18 (“Unless
               a statute or these rules permit otherwise, the government must
               prosecute an offense in a district where the offense was
               committed.”).
       Id. at 527.


[19]   Of relevance in this case, Indiana Code section 35-32-2-1(b) provides that “[i]f a

       person committing an offense upon the person of another is located in one (1)

       county and the person’s victim is located in another county at the time of the

       commission of the offense, the trial may be in either of the counties.” There is

       no dispute that the victims were in Wells County, where Bryant was tried.

       More importantly, and as with the federal statute at issue in Johnson, Indiana

       Code section 35-32-2-1 contains no mens rea provisions. Put another way, there

       is no requirement that Bryant knew his victims were in Wells County, only that

       they were, in fact, located there. As in Johnson, we are unwilling to read a mens

       rea requirement into Indiana Code section 35-32-2-1 when the General

       Assembly did not include it.


[20]   Moreover, as the Indiana Supreme Court has observed,

               [v]enue is not limited to the place where the defendant acted. To
               the contrary, the legislature may provide for concurrent venue
               when elements of the crime are committed in more than one

       Court of Appeals of Indiana | Opinion 90A04-1501-CR-11 | August 7, 2015    Page 12 of 13
               county. Joyner v. State, 678 N.E.2d 386, 390-91 (Ind. 1997).
               Similarly, where the precise location of the act is unknowable, a
               defendant may not avoid trial on this basis. Cutter v. State, 725
               N.E.2d 401, 409 (Ind. 2000).
       Baugh v. State, 801 N.E.2d 629, 631-32 (Ind. 2004) (emphasis added). If the fact

       that the location of the offense is unknowable will not protect a defendant, then it

       follows that proof of such knowledge is not required. The upshot of all of this is

       that, even if we assume that Bryant was unaware that the goods were stolen in

       Wells County, his ignorance does not shield him from prosecution there. We

       conclude that the State adequately established proper venue in Wells County.


[21]   The judgment of the trial court is affirmed.


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




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