Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                          Sep 04 2014, 9:30 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE:

BRIAN J. MAY                                            GREGORY F. ZOELLER
South Bend, Indiana                                     Attorney General of Indiana

                                                        JESSE R. DRUM
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

MARKUS BURTON,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 71A04-1402-CR-92
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                            The Honorable J. Jerome Frese, Judge
                              Cause No. 71D03-1209-FB-125


                                        September 4, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                              Case Summary

          Markus Burton (“Burton”) was convicted of Burglary, as a Class B felony.1 We

affirm.

                                                     Issue

          Whether the evidence is sufficient to support his conviction for burglary.2

                                    Facts and Procedural History

          On November 9, 2011, Mary Ann Norman (“Norman”) and her grandson Jason

Johnson (“Johnson”) locked up and left Norman’s home in St. Joseph County to go shopping.

When they returned two hours later, Norman’s bedroom window was broken and the home

1
    Ind. Code § 35-43-2-1 (2011).

2
   Burton raises two issues, namely, standing and sufficiency of the evidence. We conclude the issue of
standing has been waived for the reasons set forth below and therefore address only sufficiency.

Burton first presents the following issue for review: “Was the trial courts [sic] ruling based on substantial
evidence of probative value to sustain the legal ground relied upon, lack of standing to object by the
defendant.” (Appellant’s Brief 7.) As best we can discern from his brief, Burton contends that the trial court
erred when it found that Burton lacked standing to object to South Bend Police Department Officer Timothy
Taylor’s (“Officer Taylor”) search of Julie Gabaree’s (“Gabaree”) car.

We use Burton’s term “standing” while recognizing that in cases alleging violations of Fourth Amendment
rights, the U.S. Supreme Court has abandoned the concept of standing and has determined that “a defendant
must demonstrate that he personally has an expectation of privacy in the place searched, and that his
expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 87-88 (1998). Article 1, Section 11 of the
Indiana Constitution, however, imposes a standing requirement, in which “a defendant must establish
ownership, control, possession, or interest in either the premises searched or the property seized.” Peterson v.
State, 674 N.E.2d 528, 534 (Ind. 1996). It is unclear whether Burton raises his objection under the Fourth
Amendment or Indiana’s Constitution, as he cites neither.

Indiana Rule of Appellate Procedure 46(A)(8) requires the appellant to support each of his contentions with
cogent reasoning as well as citations to the authorities, statutes, and the appendix or parts of the record on
which he relies. Ind. Appellate Rule 46(A)(8); Moore v. State, 869 N.E.2d 489, 491-92 (Ind. Ct. App. 2007).
In addition to Burton’s incoherent statement of the issue, Burton cites no authority to support his argument that
he had standing to object to Officer Taylor’s search of Gabaree’s car. Moreover, even if Officer Taylor should
have obtained a warrant, Burton does not identify any evidence that could be suppressed. Burton thus fails to
present a cogent argument that, had the trial court found that Burton had standing, the result of his trial would
have been different. See Wentz v. State, 766 N.E.2d 351, 362 (Ind. 2002). Accordingly, appellate review of
this claim is waived. Id.

                                                       2
was ransacked. The police were called, and Officer Taylor responded. Norman and Johnson

reported that two computers, a cell phone, several pairs of tennis shoes, and some of

Norman’s jewelry were missing. After Officer Taylor left, Johnson found a cell phone and

set of keys that did not belong to Norman or Johnson. Johnson called Officer Taylor, who

returned to the house to collect the items.

       While waiting for Officer Taylor to arrive, Johnson checked the cell phone’s text

messages and found several from Gabaree stating “I need my car.” (Tr. 60.) Johnson called

Gabaree’s number and she answered. Gabaree told Johnson that she had been calling and

texting the cell phone because she was trying to reach Burton. She stated that she had loaned

Burton her maroon Chevy Monte Carlo on November 8, 2011, but he had not yet returned it.

When Officer Taylor arrived back at Norman’s home, Johnson informed the officer of what

he learned from Gabaree. Officer Taylor then took the cell phone and keys.

       Using Johnson’s description of the vehicle, Officer Taylor located Gabaree’s car about

two and a half blocks away from Norman’s home. He opened the car and searched it for the

stolen items, but found nothing. After confirming the car was registered to Gabaree, he and

South Bend Police Department Sergeant Mark Szweda (“Sergeant Szweda”) returned it to

her.

       Before the officers left, Gabaree searched the car and found several pieces of jewelry

that did not belong to her. Sergeant Szweda took the jewelry to Norman’s house. Norman

identified the jewelry as hers and produced a mate to one of the earrings found in Gabaree’s

car.


                                              3
       On September 2, 2012, the State charged Burton with one count of Burglary.

Beginning on November 12, 2013, a jury trial was conducted, at the conclusion of which

Burton was found guilty. The court sentenced Burton to fourteen years of imprisonment with

six years suspended.

                                  Discussion and Decision

                                Sufficiency of the Evidence

       Our standard of review for sufficiency of the evidence claims is well settled. We

consider only the probative evidence and reasonable inferences supporting the verdict. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or

reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v.

State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751

N.E.2d 331, 334 (Ind. Ct. App. 2001)).

       Pursuant to Indiana Code section 35-43-2-1, a person who breaks and enters the

dwelling of another person, with intent to commit a felony in it, commits burglary, as a Class

B felony. I.C. § 35-43-2-1(1)(B)(i) (2011). Indiana Code section 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,

as a Class D felony. I.C. § 35-43-4-2(a) (2011).




                                              4
       The State charged that Burton “did knowingly break and enter the dwelling of Mary

Ann Norman, with the intent to commit a felony therein, to wit: theft, that is knowingly

exerting unauthorized control over the property of Mary Ann Norman with intent to deprive

Mary Ann Norman of any part of the value or use thereof.” (Appellant’s App. 4.)

       The State presented sufficient evidence to permit the jury to find beyond a reasonable

doubt that Burton committed the November 9, 2011, burglary of Norman’s home. Norman

locked her home when she left to go shopping. When she returned, her bedroom window

was broken and her home was in disarray. Personal belongings, including pieces of

Norman’s jewelry, were missing. Norman had not authorized anyone to have or use the

jewelry. Norman and Johnson found a cell phone in the home, which Gabaree had repeatedly

called and “texted” to reach Burton. In the home, they also found keys to Gabaree’s car,

which Gabaree testified she had loaned to Burton on November 8, 2011, and he had never

returned. Norman’s jewelry, including the mate to one of her earrings, was found in the

vehicle Burton had borrowed.

       Throughout the proceedings, the witnesses who testified to the facts above

consistently referred to the events of November 9, 2011. Burton now argues that the

evidence is insufficient to support his conviction because the State did not prove that he was

in Norman’s home on the date of the burglary. Burton directs our attention to the trial

testimony of South Bend Police Department Detective Kelly Waite (“Detective Waite”),

during which the prosecutor referred to September 9, 2011, not the November 9, 2011,




                                              5
burglary date.3 One reasonable explanation for the conflict created by Detective Waite’s

testimony is that the prosecutor misspoke by referring to September 9, 2011, rather than

November 9, 2011. Nevertheless, to the extent that Detective Waite’s testimony conflicts

with the other evidence, this court declines to reweigh it. Drane, 867 N.E.2d at 146.

                                                Conclusion

        We accordingly conclude there was sufficient evidence to sustain Burton’s conviction

for burglary.

        Affirmed.

NAJAM, J., and PYLE, J., concur.




3
   During deliberations, the jury apparently noticed the discrepancy, and sent a note to the court that stated:
“Did Markus Burton admit that during his interview with Officer Waite on 9-1-2012 that he was in the house
on 11-9-11?” (Tr. 203.) After conferring with counsel, the trial court twice brought the jury out and read a
brief excerpt of Detective Waite’s testimony, which referred to September 9, 2011. (Tr. 214, 220-21.) In the
transcript of Detective Waite’s original testimony, a “(sic)” notation accompanies the September 9, 2011, date.
(Tr. 127.) The rest of the transcript, however, indicates that the jury heard only September 9, 2011.

                                                      6
