MEMORANDUM DECISION
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
establishing the defense of res judicata,                          Jun 24 2019, 8:47 am
collateral estoppel, or the law of the
                                                                        CLERK
case.                                                               Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court



ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Steven Knecht                                         Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                            Attorney General of Indiana
Lafayette, Indiana                                    Justin F. Roebel
                                                      Supervising Deputy Attorney General
                                                      Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Raul Ibarra Serrano,                                  June 24, 2019
Appellant-Defendant,                                  Court of Appeals Case No.
                                                      18A-CR-2808
        v.                                            Appeal from the Cass Superior Court
                                                      The Honorable Richard A.
State of Indiana,                                     Maughmer, Judge
Appellee-Plaintiff.                                   Trial Court Cause No.
                                                      09D02-1708-F4-22



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019               Page 1 of 9
[1]   Raul Ibarra Serrano appeals his convictions for burglary as a level 4 felony and

      theft as a level 6 felony. He raises one issue which we restate as whether the

      evidence is sufficient to sustain the convictions. We affirm.


                                      Facts and Procedural History

[2]   At approximately 6:00 a.m. on August 3, 2017, while it was dark outside,

      Edward Zimmerman noticed a dark vehicle, which was turned off, blocking his

      driveway in Logansport, Indiana. He observed a person move at a quick pace

      from the middle of a two-acre field across the street from his house and enter

      the vehicle’s passenger side, and he called 911. Within one or two minutes,

      Logansport Police Officer Jason Rozzi arrived at the scene, observed the

      vehicle backing up, and activated his emergency lights. Officer Rozzi saw the

      driver, recognized him as Jeremy Colon-Nieves, and noticed that he was

      sweaty, nervous, and out of breath. He told Colon-Nieves to turn off his

      vehicle, and he did so. As Officer Rozzi was obtaining the vehicle’s license

      plate information, Colon-Nieves turned the vehicle back on, “floored it and

      took off,” and drove through a yard and into the street, and Officer Rozzi

      radioed for help and ran to his patrol vehicle. Transcript Volume II at 232.

      Colon-Nieves led officers in a vehicular chase at an “extreme high rate of

      speed” until his vehicle skidded, struck and bounced over a curb, and came to a

      stop. Id. at 234. He and Serrano then exited the vehicle and fled from the

      officers on foot, and the officers ultimately apprehended them. The officers

      investigated the area near Zimmerman’s home and observed multiple sets of

      footprints in the dewy grass which came from the area of the apartments off of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019   Page 2 of 9
      Maplewood Drive. The footprints ended on the north side of the grassy area,

      and police lost the trail north of that point. A detective photographed all of the

      items found in Colon-Nieves’s vehicle.


[3]   On August 5, 2017, Adriana Jose returned from a vacation to an apartment

      which she shared with her three children and boyfriend on Maplewood Drive,

      discovered that her apartment door had been kicked in, and called the police.

      The apartment complex is located to the north of the field near Zimmerman’s

      residence. The items missing from Jose’s apartment included a microwave, two

      televisions, an X-Box and games, two laptops, clothes, jewelry, shoes, and two

      small tables. 1 A detective showed Jose photographs of items in Colon-Nieves’s

      car, and she identified items that had been taken from her apartment. The

      detective also observed that an end table which remained in Jose’s apartment

      matched the two tables he had photographed.


[4]   The State charged Serrano, as amended, with: Count I, burglary as a level 4

      felony; Count II, resisting law enforcement as a class A misdemeanor; and

      Count III, theft as a level 6 felony. Following a trial in May 2018, a jury found

      him guilty on Counts II and III and were deadlocked on Count I. The court

      later sentenced him to 365 days on Count II and 730 days on Count III to be

      served concurrently. Another trial was held in August 2018, at which Jose

      testified that Colon-Nieves had previously visited her apartment as a guest of




      1
       Jose testified that she had three tables which were part of a matching set, that one of tables was still in the
      apartment, and that the other two were missing.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019                          Page 3 of 9
      her boyfriend, the court instructed the jury as to accomplice liability, and the

      jury found Serrano guilty of burglary as a level 4 felony under Count I. The

      court sentenced him to 2,190 days on Count I to be served consecutive to his

      sentence on Count II and concurrently with his sentence on Count III. Serrano

      filed a motion to correct error, which the court denied.


                                                  Discussion

[5]   The issue is whether the evidence is sufficient to sustain Serrano’s burglary and

      theft convictions. When reviewing claims of insufficiency of the evidence, we

      do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State,

      656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the evidence and the

      reasonable inferences therefrom that support the verdict. Id. The conviction

      will be affirmed if there exists evidence of probative value from which a

      reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.


[6]   Serrano argues that, although he had been in the vicinity of the apartments on

      August 3rd, mere presence at or near the scene of a burglary is insufficient to

      sustain a conviction. He argues that it is not known exactly when Jose’s

      apartment was burglarized, no evidence places him at the apartment, and the

      footprint trail ended before reaching the apartment. He also argues that

      possession of stolen property is not enough to sustain a conviction and the fact

      he ran away when the vehicle crashed does not prove his guilt. He argues

      “[s]ome of Jose’s property was in Colon-Nieves’s vehicle,” “it is unknown

      when the items were stolen: it may have occurred days earlier,” “[t]he car

      containing the items was not very far away from the theft,” and “[i]t is equally
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019   Page 4 of 9
      likely that Colon-Nieves stole the property earlier, and that [Serrano] happened

      to be in the car that morning.” Appellant’s Brief at 23-24. The State responds

      that ample evidence was presented from which the jury could find Serrano

      guilty, Colon-Nieves had been inside Jose’s apartment, Zimmerman and police

      observed Serrano committing actions consistent with leaving the scene of the

      burglary or retrieving items stolen as part of the burglary, and that Serrano and

      Colon-Nieves led officers on a high speed chase followed by a foot chase.


[7]   Ind. Code § 35-43-2-1 provides that 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 and that the offense is a level 4 felony if the building or

      structure is a dwelling. Ind. Code § 35-43-4-2 provides that 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 and that the offense is a level 6 felony if the value of the property

      is at least $750 and less than $50,000.


[8]   Elements of offenses and identity may be established entirely by circumstantial

      evidence and the logical inferences drawn therefrom. Bustamante v. State, 557

      N.E.2d 1313, 1317 (Ind. 1990). On appellate review of circumstantial evidence

      of guilt, this Court need not determine whether the circumstantial evidence is

      adequate to overcome every reasonable hypothesis of innocence, but rather

      whether inferences may be reasonably drawn from that evidence which support

      the verdict beyond a reasonable doubt. See id. at 1318. Identification testimony

      need not necessarily be unequivocal to sustain a conviction. Heeter v. State, 661

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019   Page 5 of 9
      N.E.2d 612, 616 (Ind. Ct. App. 1996). Although the fact a defendant flees or

      does not flee does not indicate either guilt or innocence of itself, flight and

      related conduct may be considered by a jury in determining a defendant’s guilt.

      See Dill v. State, 741 N.E.2d 1230, 1232-1233 (Ind. 2001).


[9]   A person who knowingly or intentionally aids, induces, or causes another

      person to commit an offense commits that offense. Ind. Code § 35-41-2-4. An

      accomplice “is criminally responsible for all acts committed by a confederate

      which are a probable and natural consequence of their concerted action.”

      McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998) (citations and internal

      quotation marks omitted). It is not necessary that a defendant participate in

      every element of a crime to be convicted of that crime under a theory of

      accomplice liability. Bruno v. State, 774 N.E.2d 880, 882 (Ind. 2002), reh’g

      denied. In determining whether there was sufficient evidence for purposes of

      accomplice liability, we consider such factors as: (1) presence at the scene of the

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

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

      after occurrence of the crime. Id. A defendant’s mere presence at the crime

      scene, or lack of opposition to a crime, standing alone, is insufficient to

      establish accomplice liability. Tobar v. State, 740 N.E.2d 109, 112 (Ind. 2000).

      However, these factors may be considered in conjunction with a defendant’s

      course of conduct before, during, and after the crime, and a defendant’s

      companionship with the one who commits the crime. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019   Page 6 of 9
[10]   While the mere unexplained possession of recently stolen property standing

       alone does not automatically support a conviction for theft, such possession “is

       to be considered along with the other evidence in a case, such as how recent or

       distant in time was the possession from the moment the item was stolen, and

       what are the circumstances of the possession (say, possessing right next door as

       opposed to many miles away).” Holloway v. State, 983 N.E.2d 1175, 1179 (Ind.

       Ct. App. 2013) (citations and internal quotation marks omitted). “The fact of

       possession and all the surrounding evidence about the possession must be

       assessed to determine whether any rational trier of fact could find the defendant

       guilty beyond a reasonable doubt.” Id. (citing Girdler v. State, 932 N.E.2d 769,

       773 (Ind. Ct. App. 2010) (noting that possession of recently stolen property is to

       be considered along with the other evidence in a case and the circumstances of

       the possession) (citing Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010))).

       The trier of fact must assess all of the evidence instead of focusing upon one

       piece of evidence, such as possession of recently stolen property. Id.


[11]   Serrano does not dispute that the evidence demonstrates that property taken

       from the apartment off of Maplewood Drive shared by Jose and her boyfriend

       was discovered in Colon-Nieves’s vehicle and that the vehicle was not very far

       from the burglarized apartment during the time she was on vacation. He also

       does not dispute that the apartment was a dwelling or that the value of the

       stolen property was at least $750. The record reveals that Jose identified items

       discovered in Colon-Nieves’s vehicle as the items taken from the apartment.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019   Page 7 of 9
[12]   The State presented evidence that Colon-Nieves’s vehicle was parked near

       Zimmerman’s home in the early morning when it was dark outside, that

       Serrano moved quickly from the middle of the field across the street and entered

       the vehicle, that upon approaching the vehicle Officer Rizzo observed that

       Colon-Nieves was sweaty and out of breath, and that Colon-Nieves and

       Serrano led police on a high-speed vehicular chase followed by a foot pursuit.

       Zimmerman testified that his street is very private, two residences have

       driveways on the street and another has a rear entrance on the street, and the

       street is a dead-end. The State presented aerial maps depicting the location of

       the burglarized apartment relative to Zimmerman’s driveway where Colon-

       Nieves and Serrano were parked and the location of the field relative to the

       apartment and the driveway. A police officer testified that his investigation

       revealed multiple sets of footprints in the dewy grass which came from the area

       of the apartments off of Maplewood Drive, and the officer pointed to the area

       that the police lost the trail of footprints. Jose indicated the location of her

       apartment and that, looking out the back of her apartment, there were trees

       and, to the left, a field. The detective who photographed the items in Colon-

       Nieves’s vehicle testified the items were packed in the vehicle with grass all over

       them which indicated to him that the items had been laying in grass at some

       point. He also testified that an end table in Jose’s apartment matched two

       tables found in Colon-Nieves’s vehicle. Jose testified that she had seen Colon-

       Nieves at her apartment a couple of times before the break-in and that he had

       been a guest of her boyfriend. A rational factfinder could find that Serrano as a

       principal or accomplice broke and entered the Maplewood Drive apartment

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019   Page 8 of 9
       with intent to commit theft in it and knowingly or intentionally exerted

       unauthorized control over property of another person with intent to deprive its

       owner of its value or use.


[13]   Based upon the record, we conclude the State presented evidence of probative

       value from which the jury could have found Serrano guilty beyond a reasonable

       doubt of burglary as a level 4 felony and theft as a level 6 felony. See Holloway,

       983 N.E.2d at 1179-1180 (noting the defendant was in a position to know when

       the victim’s townhome was unoccupied, had the opportunity to commit the

       crimes, and possessed the property taken from the townhome a short time after

       the items had been taken, and holding a rational factfinder could have found

       the defendant committed the burglary and theft).


[14]   For the foregoing reasons, we affirm Serrano’s convictions.


[15]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2808 | June 24, 2019   Page 9 of 9
