MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    FILED
regarded as precedent or cited before any                      Mar 02 2017, 9:34 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
Larry D. Newman                                          Curtis T. Hill, Jr.
Noblesville, Indiana                                     Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Martin A. Davis, Jr.,                                    March 2, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1608-CR-1861
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Gail Bardach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         29D06-1507-F6-6080



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 29A02-1608-CR-1861 | March 2, 2017    Page 1 of 6
[1]   Following a jury trial, Martin A. Davis, Jr. was convicted of Level 6 felony

      theft and Class B misdemeanor criminal mischief. On appeal, Davis argues

      that the State presented insufficient evidence to support his criminal mischief

      conviction.


[2]   We affirm.


                                       Facts & Procedural History


[3]   At the time relevant to this appeal, James Burch owned several residential

      properties, including a home on Beechwood Drive in Hamilton County. Burch

      employed David Ward and Jeanette Newkirk to assist him with moving

      furniture and performing maintenance work and general upkeep at his

      properties. Burch sometimes hired additional people to help Ward and

      Newkirk with these duties. In January 2015, Burch hired Davis to help Ward

      and Newkirk move furniture and other items from one of his properties in

      Carmel to the Beechwood Drive house.


[4]   At around 9:00 a.m. on February 13, 2015, Ward and Newkirk arrived at the

      Beechwood Drive house to do some work. When they arrived, there was a

      small pickup truck parked in the driveway and the garage door was open. Both

      Ward and Newkirk observed a white blanket in the bed of the truck that

      appeared to be covering items. Because the house was unoccupied at the time,

      Ward and Newkirk believed something was amiss. Ward told Newkirk to stay

      in the car while he investigated. When Ward entered the garage, he saw a

      bucket with tools that appeared to be out of place. He then entered the

      Court of Appeals of Indiana | Memorandum Decision 29A02-1608-CR-1861 | March 2, 2017   Page 2 of 6
      residence through the garage and saw the back of someone running through the

      residence. Ward went down into the basement and saw that the floor was wet

      and that the plumbing was damaged.


[5]   While Ward was still inside the house, Newkirk saw Davis exit through the

      garage door. Davis was “soaking wet” and told Newkirk that Burch had told

      him to come over and retrieve a vacuum cleaner, which had already been

      placed in the back of the truck. Transcript at 106. Davis then got into the truck

      and said “well, I’m leaving” and hurriedly drove away. Id. at 109.


[6]   Ward and Newkirk called Burch and told him that the house had been broken

      into, and Burch came to the house and called the police. An inspection of the

      house revealed that a significant amount of copper piping in the home’s

      plumbing and steam heating systems had been removed. As a result, there was

      a large amount of water on the basement floor. Various items had also been

      stolen. Burch had not given Davis permission to enter the home or to retrieve

      the vacuum cleaner or remove any other items. Detective Kija Ireland of the

      Hamilton County Sheriff’s Department investigated the incident and, using a

      law enforcement website called LeadsOnline, later discovered that Davis had

      scrapped copper pipe on February 15, 2015.


[7]   As a result of these events, the State charged Davis with criminal mischief as a

      Class B misdemeanor and theft elevated from a Class A misdemeanor to a

      Level 6 felony based on a prior unrelated theft conviction. A bifurcated jury

      trial was held on June 7, 2016, and Davis was found guilty of Class A


      Court of Appeals of Indiana | Memorandum Decision 29A02-1608-CR-1861 | March 2, 2017   Page 3 of 6
      misdemeanor theft and Class B misdemeanor criminal mischief. Davis then

      admitted to having a prior unrelated theft conviction as necessary to support the

      elevation of his theft conviction to a Level 6 felony. On the theft conviction,

      the trial court sentenced Davis to 910 days, with 545 days suspended and 365

      days on probation. For the criminal mischief conviction, the trial court

      imposed a 180-day suspended sentence. Davis now appeals.


                                          Discussion & Decision


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

      criminal mischief conviction. In reviewing a challenge to the sufficiency of the

      evidence, we neither reweigh the evidence nor judge the credibility of witnesses.

      Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we

      consider only the evidence supporting the conviction and the reasonable

      inferences flowing therefrom. Id. If there is substantial evidence of probative

      value from which a reasonable trier of fact could have drawn the conclusion

      that the defendant was guilty of the crime charged beyond a reasonable doubt,

      the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137

      (Ind. Ct. App. 2008). It is not necessary that the evidence overcome every

      reasonable hypothesis of innocence; rather, the evidence is sufficient if an

      inference may reasonably be drawn from it to support the conviction. Drane v.

      State, 867 N.E.2d 144, 147 (Ind. 2007). “A verdict may be sustained based on

      circumstantial evidence alone if that circumstantial evidence supports a

      reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

      Although presence at a crime scene alone is insufficient to sustain a conviction,

      Court of Appeals of Indiana | Memorandum Decision 29A02-1608-CR-1861 | March 2, 2017   Page 4 of 6
       presence combined with other facts and circumstances, including the

       defendant’s course of conduct before, during, and after the offense, may raise a

       reasonable inference of guilt. Id.


[9]    To support Davis’s conviction for Class B misdemeanor criminal mischief, the

       State was required to prove that Davis recklessly, knowingly, or intentionally

       damaged or defaced Burch’s property without Burch’s permission. See Ind.

       Code § 35-43-1-2. On appeal, Davis does not dispute that someone

       intentionally damaged Burch’s property by cutting many copper pipes inside the

       Beechwood Drive house. Instead, he argues that the State presented

       insufficient evidence to establish that he was the person who did so.


[10]   It was established that Davis was familiar with the Beechwood Drive house

       through his previous work for Burch, and that Newkirk and Ward were familiar

       with Davis because they had worked alongside him. It was further established

       that the plumbing and heating systems at the Beechwood Drive house were

       undamaged in the days leading up to February 13, 2015, and that Burch had

       not given Davis permission to enter the house on that date or to remove any of

       its contents. Although no one saw Davis in the process of removing copper

       pipes from the house, both Ward and Newkirk saw Davis’s truck outside the

       house and saw a white blanket covering items in the back of the truck. Newkirk

       also saw Davis come out of the house “soaking wet,” and Davis lied to her

       about having permission to remove a vacuum cleaner from the house before

       hurriedly driving away. Transcript at 106. An inspection of the house revealed

       water on the basement floor as a result of pipes to the plumbing and steam

       Court of Appeals of Indiana | Memorandum Decision 29A02-1608-CR-1861 | March 2, 2017   Page 5 of 6
       heating systems being cut. Moreover, two days after this incident, Davis sold

       copper pipes to a scrap yard. This evidence was more than sufficient to support

       his conviction for Class B misdemeanor criminal mischief.


[11]   Judgment affirmed.


[12]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1608-CR-1861 | March 2, 2017   Page 6 of 6
