MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                   FILED
this Memorandum Decision shall not be                         Aug 31 2016, 8:35 am

regarded as precedent or cited before any                          CLERK
                                                               Indiana Supreme Court
court except for the purpose of establishing                      Court of Appeals
                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael Frischkorn                                       Gregory F. Zoeller
Frischkorn Law LLC                                       Attorney General of Indiana
Fortville, Indiana                                       Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark D. Vaughn,                                          August 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A01-1512-CR-2141
        v.                                               Appeal from the
                                                         Hancock Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Terry K. Snow, Judge
                                                         Trial Court Cause No.
                                                         30D01-1502-F4-185



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 1 of 16
[1]   Following a jury trial, Mark D. Vaughn (“Vaughn”) was convicted of Level 6

      felony theft1 and Level 4 felony burglary2 and was adjudicated as an habitual

      offender.3 Vaughn appeals, raising the following restated issue: whether the

      State presented sufficient evidence to convict him of felony theft and burglary.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                      Facts and Procedural History
[3]   On the morning of February 6, 2015, Vaughn, his nephew Joshua Priest

      (“Priest”), and Vaughn’s friend, Matthew Beeman (“Beeman”), left Anderson,

      Indiana in Vaughn’s green GMC Jimmy SUV (“the SUV”) and were “looking

      for a house to break into.” Tr. at 202. Eventually, they stopped at a house,

      later determined to be owned by a woman named Geanell Shores (“Shores”).

      Vaughn exited the car, knocked on the door, looked in the windows, and then

      he came back to the SUV, retrieved some tools, and broke into the house.

      Beeman and Priest left, but returned to Shores’s house “to see if [Vaughn] was

      ready,” but he was not and told Priest to leave and come back. Id.


[4]   Beeman and Priest left and returned for Vaughn two more times. On their

      second trip back to the house, Vaughn gave Priest a pillowcase containing items

      from Shores’s home, and Priest took it out of the house and placed it inside the




      1
          See Ind. Code § 35-43-4-2(a)(1).
      2
          See Ind. Code § 35-43-2-1(1).
      3
          See Ind. Code § 35-50-2-8(a).


      Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 2 of 16
      SUV. On Priest’s next trip into the house, Priest looked for Vaughn, but could

      not find him. While Priest was inside the house, Deputy Russell Silver

      (“Deputy Silver”) of the Hancock County Sheriff’s Department arrived. He

      had been dispatched to investigate a suspicious vehicle in the area, as reported

      by Shores’s neighbor.


[5]   Deputy Silver spotted the described green GMC SUV in Shores’s driveway, and

      he pulled into the driveway and parked behind it. A man, later determined to

      be Beeman, was seated in the driver’s seat of the SUV. Deputy Silver

      approached and began speaking to Beeman. Around that time, Deputy Joe

      Hunt (“Deputy Hunt”) arrived, and based on Beeman’s comments to police,

      Deputy Hunt walked to the back of the house to look for another individual.


[6]   Deputy Hunt found Priest behind the house near the back door and ordered

      him to the ground. Eventually, Deputy Silver placed both Beeman and Priest

      in handcuffs. Deputies found items in Priest’s pockets, including some jewelry

      and cash. Based on Priest’s statements to Deputy Silver, the two deputies

      entered the house looking for a third person, later determined to be Vaughn.

      The house had been ransacked, including drawers pulled out, doors opened,

      and items tossed on the floor. Deputies saw a .22 caliber revolver inside the

      house, near the back door. Finding no one in the house, deputies established a

      perimeter and began a search for Vaughn.


[7]   Deputy Scott Chapman (“Deputy Chapman”) and his K-9 partner Brix

      followed a set of footprints in the snow that led to a wooded area across the


      Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 3 of 16
       road to the east of Shores’s house. Brix tracked Vaughn’s scent to a large,

       round hay bale. He starting digging at the ground, stuck his head under the

       bale, and pulled out a pillowcase, which he bit and tore apart. The pillowcase

       contained personal items, including jewelry and money.


[8]    Law enforcement continued to track Vaughn, but lost his footprints near some

       brush by a creek. Assistant Police Chief Brian Pryor (“Assistant Chief Pryor”)

       of the Shirley Police Department and his K-9 partner arrived and began to assist

       with tracking Vaughn. Deputy Chapman located Vaughn lying face down in a

       briar patch, and although officers ordered him to come out, he did not do so.

       Assistant Chief Pryor deployed his K-9, and the dog began biting Vaughn’s leg.

       Vaughn did not immediately comply with orders to come out, and eventually

       Deputy Chapman went into the briar patch to try to pull out Vaughn, who tried

       to grab Deputy Chapman’s arms. A struggle ensued, and other officers moved

       in to assist and eventually took Vaughn into custody.


[9]    On June 23, 2014, the State charged Vaughn with Level 4 felony burglary,

       Level 6 felony theft, and Class A misdemeanor resisting law enforcement. The

       State also filed an habitual offender count. A two-day jury trial was held in

       August and September 2015.


[10]   At trial, Shores identified her house by address and photograph, stating that she

       lived there with her daughter and two grandchildren. On the date in question,

       Shores and her daughter both left for work around 6:30 a.m., and her

       grandchildren got on the school bus within an hour thereafter. At around 10:30


       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 4 of 16
       a.m., she received a call at work from her mother, who lived nearby, advising

       Shores about the police activity occurring at Shores’s house. Shores arrived at

       the scene shortly thereafter, and she advised law enforcement that two

       pillowcases were missing, as well as jewelry and other personal belongings. At

       trial, Shores was shown pictures of the contents of the bag that Brix had pulled

       from beneath the hay bale, and she identified the contents as her own, including

       jewelry, drawers of her jewelry box, and photographs. She also identified the

       torn pillowcase from her home. She testified that several other necklaces were

       taken that day and never recovered, including a necklace her deceased husband

       had given her and a gold locket from her grandson. Shores testified that she did

       not know the men who were apprehended, and they did not have permission to

       be in her house that day or to take her belongings.


[11]   Priest testified that, on February 6, he, Vaughn, and Beeman left Anderson in

       Vaughn’s SUV. Priest stated that he knew “what was going to happen” that

       day, explaining, “We were going to burglarize somebody’s house.” Tr. at 204.

       Priest was shown a picture of the items that the deputies found in Priest’s

       pockets, and in response, he testified that those items came from the pillowcase

       that Vaughn had given him to put in the SUV. The items removed from Priest’s

       pockets included five or so necklaces, a bracelet, a medallion or coin in a case,

       and some cash. State’s Ex. 4. Priest testified that, while he was inside Shores’s

       home, he saw a .22 caliber revolver, which he picked up and put in his pocket,

       but he threw it when he looked out a window and saw that the police had

       arrived. Priest stated that, at the time of this incident, he was on probation for


       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 5 of 16
       another offense and that, as result of the events at Shores’s home, he pleaded

       guilty to burglary and theft.


[12]   Beeman testified in Vaughn’s defense. He conceded that he, Vaughn, and

       Priest set out that morning with a plan “to burglarize” a house. Tr. at 253.

       Beeman testified that Vaughn and Priest went into the home, and Priest came

       out carrying a pillowcase containing items from Shores’s home, but Beeman

       testified that he did not personally observe Vaughn enter or exit Shores’s home.

       Beeman said that, at some point, he and Priest drove to a neighbor’s to ask

       about scrap metal and then returned to the original house. Beeman said Priest

       went back inside the house, which is when Beeman moved over to the driver’s

       seat and was found waiting there when the Sheriff’s Department arrived. As a

       result of the events that happened that day, Beeman pleaded guilty to burglary

       and theft.


[13]   The jury found Vaughn guilty of Level 4 felony burglary and Level 6 felony

       theft, but not guilty of Class A misdemeanor resisting law enforcement.

       Vaughn waived a jury trial on the habitual offender allegation, and the trial

       court determined that Vaughn was an habitual offender. The trial court

       sentenced Vaugh to ten years on the Level 4 felony burglary conviction,

       enhanced by ten years for the habitual offender finding, and it imposed a

       concurrent two-year sentence on the Level 6 felony theft conviction, for an

       aggregate twenty-year sentence. Vaughn now appeals.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 6 of 16
                                      Discussion and Decision
[14]   Vaughn claims that the State failed to present sufficient evidence to support his

       convictions. The deferential standard of review for sufficiency claims is well

       settled. When we review the sufficiency of evidence to support a conviction,

       we do not reweigh the evidence or assess the credibility of the witnesses. Baker

       v. State, 968 N.E.2d 227, 229 (Ind. 2012). We consider only the evidence most

       favorable to the verdict and the reasonable inferences that can be drawn from

       this evidence. Id. If a reasonable finder of fact could determine from the

       evidence that the defendant was guilty beyond a reasonable doubt, then we will

       uphold the verdict. Id. A conviction may be based upon circumstantial

       evidence alone. Long v. State, 935 N.E.2d 194, 198 (Ind. Ct. App. 2010), trans.

       denied. We will not disturb the jury’s verdict if there is substantial evidence of

       probative value to support it. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker, 968 N.E.2d at 229 (emphasis in original).


                                                 I. Burglary
[15]   Initially, Vaughn asserted in his Appellant’s Brief that the evidence presented at

       trial was insufficient as to both his Level 6 felony theft and Level 4 felony

       burglary convictions. With regard to the burglary conviction, his argument was

       that the burglary statute required proof of intent to commit “a felony” in the

       dwelling, and he claimed that, here, the evidence was not sufficient to establish

       felony theft. Therefore, he argued, his burglary conviction should be vacated.
       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 7 of 16
       In his Reply Brief, however, Vaughn acknowledges that the current and

       applicable burglary statute requires proof of “an intent to commit a felony or

       theft” in the dwelling,4 such that intent to commit felony theft is no longer

       required in order to convict of burglary. Reply Br. at 7 (emphasis added).

       Vaughn’s prayer for relief in his Reply Brief asks us to vacate his conviction for

       the Level 6 felony, but does not ask for relief from the burglary conviction. It

       thus appears that Vaughn has abandoned any challenge to his burglary

       conviction and is appealing only his Level 6 felony theft conviction. However,

       to the extent that Vaughn does challenge his burglary conviction, we reject his

       claim.


[16]   Indiana Code section 35-43-2-1(1) states, in pertinent part:

                A person who breaks and enters the building or structure of
                another person, with intent to commit a felony or theft in it,
                commits burglary, a Level 5 felony. However, the offense is:

                (1) a Level 4 felony if the building or structure is a dwelling[.]


       Ind. Code § 35-43-2-1(1) (emphasis added). A person commits Class A

       misdemeanor theft by knowingly or intentionally exerting unauthorized control

       over property of another person, with intent to deprive the other person of any

       part of its value or use. Ind. Code § 35-43-4-2(a); Appellant’s App. at 56, 63. To

       convict Vaughn as charged, the State was required to prove that on or about



       4
         Indiana Code 35-43-2-1 was amended effective July 1, 2014, and, among other changes, the “or theft”
       language was added to the statute. See P.L. 158-2013, Sec. 460.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016         Page 8 of 16
       February 6, 2015, he broke and entered Shores’s home “with the intent to

       commit a felony or theft in it[.]” Appellant’s App. at 70.


[17]   Here, the State presented evidence that Vaughn, Priest, and Beeman left

       Vaughn’s home in Anderson, Indiana in Vaughn’s SUV on the morning of

       February 6, 2015 with the plan to burglarize one or more homes. They stopped

       at Shores’s home and parked in her driveway. Vaughn exited the SUV,

       knocked on the door, and looked in the windows. Thereafter, he returned to

       the SUV, retrieved one or more tools, and entered Shores’s home without her

       permission. Alone or with Priest, Vaughn ransacked the inside, dumping out

       drawers, opening cabinets, and tossing items on the floor. Priest entered the

       home at least two times to tell Vaughn it was time to leave, but Vaughn

       indicated he was not ready. At one point, Vaughn gave one pillowcase of items

       to Priest, who took it to the SUV, and, later, Vaughn took another pillowcase

       containing items with him when he left Shores’s house and hid in a nearby

       field. Authorities and at least one police K-9 dog followed footprint tracks in

       the snow, and the K-9 found the pillowcase under a hay bale near where

       Vaughn was lying on the ground in a thick briar patch. Shores confirmed that

       the house was her dwelling, identified the two pillowcases and the contents as

       belonging to her, and testified that she did not know Vaughn and never gave

       him permission to enter her home or take her belongings. We find that the

       State presented sufficient evidence to convict Vaughn of Level 4 felony

       burglary.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 9 of 16
                                                II. Felony Theft
[18]   Turning to the challenged Level 6 felony theft conviction, Vaughn asserts that

       the State failed to present sufficient evidence that Vaughn committed felony

       theft because the State failed to present evidence from which the jury could

       infer that the monetary value of the stolen items was at least $750. Vaughn

       asserts that “[a]lthough pictures were taken of the items in the field, there was

       no evidence presented of any kind regarding the value of those items.”

       Appellant’s Br. at 8. Therefore, he claims, the evidence presented was

       insufficient from which a jury could infer that the items stolen had a value of at

       least $750, necessary for felony theft.5 Based on the record before us, we agree.


[19]   The State charged that on or about February 6, 2015,

                 Vaughn did knowingly exert unauthorized control over the
                 property of [] Shores, AND the value of the property is at least
                 seven hundred fifty dollars ($750) and less than fifty thousand
                 dollars ($50,000); OR (B) the person has a prior unrelated
                 conviction for: (i) theft under this section; or (ii) criminal




       5
        Vaughn suggests that the State “admitted” to a lack of evidence of property value when, in closing
       argument, the prosecutor stated:

                 And the defense tells you that, you know, we didn’t prove our theft because of the value
                 and so forth, that was a misdemeanor and unless the property is at least Seven Hundred
                 and Fifty Dollars it becomes a level 6 felony. You know, I care more about the burglary
                 than I do about what level offense you find the theft to be.


       Tr. at 273; Appellant’s Br. at 8.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016           Page 10 of 16
        conversion with intent to deprive [] Shores of any part of its value
        or use.


Appellant’s App. at 71 (emphasis in original). Final Instruction No. 6 read:


        The crime of Theft is defined by statute as follows:


        A person who knowingly or intentionally exerts unauthorized
        control over property of another person, with intent to deprive
        the other person of any part of its value or use, commits theft, a
        Class A misdemeanor. The offense is a Level 6 Felony if the
        value of the property is at least $750 and less than $50,000.


        To convict the defendant, the State must have proved each of the
        following elements:


        The Defendant:


        1. Knowingly or Intentionally,


        2. Exert [sic] unauthorized control over the property of another
        person, and,


        3. The value of the property was over $750 but less than $50,000,


        4. With the intent to deprive the owner of the value or use of
        said property.


        If the State failed to prove each of these elements beyond a
        reasonable doubt, you should find the defendant not guilty.




Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 11 of 16
               If the State did prove each of these elements beyond a reasonable
               doubt, you should fin[d] the defendant guilty of Theft a Level 6
               Felony.


       Id. at 56-57 (emphasis in original).


[20]   At trial, photographs were admitted into evidence showing the contents of the

       pillowcase that Brix found in the field. State’s Ex. 9, 10. Brix tore the

       pillowcase, and the items were photographed as they appeared at that time,

       strewn in the field amongst sticks, and hay, and snow. State’s Ex. 10. Several

       necklaces, some hair barrettes, a few coins, and other miscellaneous personal

       items like pictures and small boxes can be seen. Another photograph was

       admitted that showed items that authorities removed from Priest’s pockets,

       which had been set out on the hood of the police car and photographed. State’s

       Ex. 4. Priest testified that some items in the photograph were his own – such as

       his wallet, pliers, and a glove – but others were items that he or Beeman had

       removed from the pillowcase in the car, including four or five necklaces, two

       bracelets, a medallion or coin in a case, and some folded dollar bills, although

       the quantity and denominations are not visible. Id. When Shores was asked at

       trial to place a monetary value on the items taken, she replied, “It would be

       very hard to because most of it was costume jewelry,” noting the sentimental

       value of two necklaces in particular that she did not get back. Tr. at 173.

       Although Priest testified that while inside Shores’s home he saw a .22 caliber

       revolver and put it in his pocket, he removed the gun and “threw it to the right




       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 12 of 16
       of me into a corner,” when he saw that law enforcement had arrived at the

       scene. Id. at 218-19.


[21]   Thus, at trial, no testimony was presented concerning how much cash Shores

       was missing or what amount of cash was found in the pillowcases. There was

       no inventory of the contents of the pillowcases introduced. Priest had picked

       up but discarded the pistol in the home before being arrested, and Shores did

       not testify that any gun or ammunition was missing. Although some jewelry

       pieces can been seen, Shores did not place a value on them and stated that they

       were costume jewelry. Given the record before us, we cannot say that the jury

       was presented with sufficient evidence from which it could reasonably

       determine that the dollar value of the stolen goods was at least $750.


[22]   The State argues that, regardless of value, the felony theft conviction is valid

       because, under the theft statute, the offense is a Level 6 felony if “the property is

       a firearm,” and Priest admitted that he put the .22 caliber pistol in his pocket,

       thereby exerting unauthorized control over it, before throwing it into a corner.

       Indiana Code section 35-43-4-2 reads:


               (a) A person who knowingly or intentionally exerts unauthorized
               control over property of another person, with intent to deprive
               the other person of any part of its value or use, commits theft, a
               Class A misdemeanor. However, the offense is:


               (1) a Level 6 felony if:




       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 13 of 16
                       (A) the value of the property is at least seven hundred fifty
                       dollars ($750) and less than fifty thousand dollars
                       ($50,000);


                       (B) the property is a firearm; or


                       (C) the person has a prior unrelated conviction for:


                                (i) theft under this section; or


                                (ii) criminal conversion under section 3 of this
                                chapter[.]


       Ind. Code § 34-43-4-2(a) (emphasis added).


[23]   We are not persuaded by the State’s argument that the jury based Vaughn’s

       Level 6 felony theft conviction upon theft of a firearm. First, we observe that

       the evidence presented was that Priest did not have the firearm on him when he

       was arrested, deputies saw the .22 handgun inside the house near the back door,

       and Shores did not testify that any firearms were missing from her home.

       Second, neither the charging information nor Final Instruction No. 6 cited or

       referred to theft of a firearm. Appellant’s App. 56-57, 71. Rather, Final

       Instruction No. 6 instructed the jury to convict if it found the property’s value

       was $750 or more. Id. at 56-57. Although subsection (a)(1)(B) of the theft

       statute permits conviction as a Level 6 felony if the property stolen was a

       firearm, the evidence presented and the instructions given in this case do not

       support a determination that the jury convicted Vaughn of felony theft based

       upon theft of a firearm.
       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 14 of 16
[24]   Alternatively, the State argues that “it could have rested its conviction [] on the

       fact that [Vaughn] had a prior conviction for theft.” Appellee’s Br. at 10-11.

       Indiana Code 35-43-4-2(a)(1)(C)(i) provides that the offense is a Level 6 felony

       if the person has a prior conviction for theft. However, as Vaughn points out,

       the prior conviction was not presented as evidence nor was a bifurcated hearing

       conducted at which the State would have been required to prove that Vaughn

       was previously convicted of theft. Furthermore, Final Instruction No. 6 did not

       present a prior theft conviction as basis for conviction; rather, it directed the

       jury to convict if it found that Vaughn had stolen items that had a value of $750

       or more. Appellant’s App. at 56-57. We cannot say that the jury’s determination

       that Vaughn was guilty of Level 6 felony theft conviction was based on the

       existence of a prior theft conviction.


[25]   Vaughn asks us to vacate his felony theft conviction and remand for

       resentencing. “When a conviction is reversed because of insufficient evidence,

       we may remand for the trial court to enter a judgment of conviction upon a

       lesser-included offense if the evidence is sufficient to support the lesser offense.”

       Chatham v. State, 845 N.E.2d 203, 208 (Ind. Ct. App. 2006). The only element

       distinguishing Class A misdemeanor theft from Level 6 felony theft is, as is

       applicable here, the value of the property. Although we find that there was not

       sufficient evidence to support the $750 value element, we find that there was

       sufficient evidence presented for the jury to convict Vaughn of knowingly or

       intentionally exercising unauthorized control over Shores’s property, with

       intent to deprive her of any part of its value or use. Therefore, we reverse


       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 15 of 16
       Vaughn’s conviction for felony theft and remand to the trial court with

       instructions to vacate Vaughn’s Level 6 felony theft conviction and enter

       judgment of conviction for Class A misdemeanor theft and for resentencing.

       We affirm Vaughn’s Level 4 felony burglary conviction and habitual offender

       adjudication.


[26]   Affirmed in part, reversed in part, and remanded with instructions.


[27]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1512-CR-2141 | August 31, 2016   Page 16 of 16
