                                                                  FILED
                                                             May 23 2017, 6:12 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                       Curtis T. Hill, Jr.
Elkhart, Indiana                                          Attorney General of Indiana

                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Antoine D. Bates,                                         May 23, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1612-CR-2896
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Stephen R.
Appellee-Plaintiff                                        Bowers, Judge
                                                          Trial Court Cause No.
                                                          20D02-1409-FB-74



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017                 Page 1 of 8
                                           Case Summary
[1]   At Antoine D. Bates’s jury trial for Class B felony burglary, the State disclosed

      for the first time that a wallet (which the owner had lost over two years earlier)

      had been found in the area of the burglary. Bates argued that this late

      disclosure violated Brady v. Maryland, 373 U.S. 83 (1963), which requires the

      prosecution to disclose evidence that is favorable to the defendant. The trial

      court found no Brady violation, and Bates was convicted as charged. Bates now

      appeals, arguing a Brady violation and that the evidence is insufficient to

      support his conviction.

[2]   Because Brady does not impose a general requirement of pretrial disclosure,

      Bates gives us no reason to believe that the wallet’s owner could have offered

      evidence favorable to him, and Bates did not request a continuance when the

      disclosure was first made at trial, we find no Brady violation. In addition,

      because the victim saw Bates running away from her house carrying property

      that had been inside, we find that the evidence is sufficient to support his

      burglary conviction. We therefore affirm.



                             Facts and Procedural History
[3]   In November 2013, Nancy Medina and her husband, Manuel Torres, lived at

      Nancy’s parents’ house in Harrison Ridge subdivision in Goshen along with

      Nancy’s parents and three of her younger siblings. Nancy’s youngest brother

      was one year old at the time.


      Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017    Page 2 of 8
[4]   On the night of November 9, Nancy and Manuel went with another couple to a

      dance club in South Bend to celebrate Manuel’s twenty-second birthday. The

      group left the club around 3 a.m., and the other couple drove Nancy and

      Manuel home. Nancy was the first to enter the house and left the door open for

      her husband. As Nancy headed to the bathroom, she saw a man standing in the

      kitchen. Tr. Vol. II p. 227; Tr. Vol. III p. 4. The man, later identified as Bates,

      said, “Don’t yell,” but Nancy yelled for her husband and ran out of the house.

      Tr. Vol. II pp. 229-30. Bates followed Nancy out of the house and ran into the

      street. Manuel, who was in the driveway, chased Bates for a short time but

      then stopped. During this time, Nancy saw that Bates was carrying her

      brother’s Winnie the Pooh diaper bag that had been sitting on the kitchen table.

      It contained baby clothes and a camera.

[5]   Sergeant Scott Frey with the Elkhart County Sheriff’s Department responded to

      a report of a burglary in progress at 3:35 a.m. After speaking with Nancy, he

      walked around the house to see if he could find a point of entry. Sergeant Frey

      found a screwdriver by the sliding-glass door. The locking mechanism on the

      sliding-glass door was damaged, as if something had been pushed into it. The

      screwdriver did not belong to Nancy or her family.

[6]   Undercover Officer (UC) 1521 also responded to the report of a burglary in

      progress. After receiving a description of Bates, he helped other officers set up a



      1
        This officer was not working undercover at the time of the burglary, but he was working undercover at the
      time of trial.

      Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017                          Page 3 of 8
       perimeter around the subdivision. Shortly thereafter, UC 152 saw a man

       matching the description walk out from a wooded area in the subdivision. UC

       152 eventually apprehended and arrested Bates. Officers did not find the diaper

       bag.

[7]    Several days later, on November 15, officers, including a K-9 officer, searched

       “every inch” of the subdivision for the diaper bag but still did not find it. Id. at

       191. The K-9 officer, however, found a wallet in the subdivision. He tracked

       down the wallet’s owner, who said he had lost his wallet over two years earlier.

       Id. at 207. The officers determined that the wallet was unrelated to this case

       and did not tell Bates about its discovery.


[8]    Thereafter, the State charged Bates with Class B felony burglary. At the jury

       trial, one of the searching officers briefly testified about the discovery of the

       wallet by the K-9 officer (who did not testify at trial). Id. at 207. Defense

       counsel cross-examined the officer about the wallet but did not ask for a

       continuance to pursue the matter.

[9]    Instead, after the State completed its case in chief, Bates argued that the State’s

       failure to disclose the existence of the wallet before trial violated Brady. The

       trial court found no Brady violation, Tr. Vol. III pp. 61, 90-91, and the defense

       rested without presenting any evidence. The jury found Bates guilty as charged.

[10]   Bates now appeals.




       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017      Page 4 of 8
                                  Discussion and Decision
[11]   Bates raises two issues on appeal. First, he renews his Brady challenge.

       Second, he contends that the evidence is insufficient to support his conviction.


                                           I. Brady Violation
[12]   Bates first contends that the State’s failure to disclose the existence of the wallet

       before trial violated Brady. Brady and its progeny apply to the State’s failure to

       disclose favorable evidence that is material to the accused’s guilt or punishment.

       Cone v. Bell, 556 U.S. 449, 469 (2009); Brady, 373 U.S. at 87. There are three

       components to a Brady violation: (1) the evidence at issue must be favorable to

       the accused, either because it is exculpatory or impeaching; (2) the evidence

       must have been suppressed by the State, either willfully or inadvertently; and

       (3) prejudice (materiality inquiry). Strickler v. Greene, 527 U.S. 263, 281-82

       (1999). Evidence is material when there is a reasonable probability that, had

       the evidence been disclosed, the result of the proceeding would have been

       different. Cone, 556 U.S. at 470.


[13]   Although Brady itself involved a request for pretrial disclosure, most courts

       agree that Brady does not impose a general requirement of pretrial disclosure of

       exculpatory evidence. 6 Wayne R. LaFave et al., Criminal Procedure § 24.3(b)

       (4th ed. 2015); see also Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999). For

       most exculpatory evidence, the prosecution is able to satisfy its constitutional

       obligation by disclosing the evidence at trial. 6 LaFave, § 24.3(b). The burden

       rests with the defendant to establish that “the lateness of the disclosure so

       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017      Page 5 of 8
       prejudiced defendant’s preparation or presentation of his defense that he was

       prevented from receiving his constitutionally guaranteed fair trial.” Id.

       (quotation omitted). Moreover, if the defendant fails to request a continuance

       when the disclosure is first made at trial, that failure may be viewed as negating

       any claim of actual prejudice. Id.; see also Braswell v. State, 550 N.E.2d 1280,

       1283 (Ind. 1990) (explaining that a continuance could have been a proper

       remedy when the evidence was disclosed during—and not before—trial;

       however, the defendant did not request a continuance).

[14]   Bates’s Brady challenge fails for two reasons. Although Bates cross-examined

       the officer about the wallet, Bates claims that he was unable to question the

       wallet’s owner. But Bates gives us no reason to believe that the owner could

       have offered evidence that was favorable to him, either because it was

       exculpatory or impeaching. This is especially so given that the evidence before

       the court was that the owner had lost the wallet two years earlier. Moreover, to

       the extent Bates argues that the State’s late disclosure prevented him from

       making such a showing, Bates did not ask the trial court for a continuance to

       pursue the matter. We therefore find no Brady violation.


                                II. Sufficiency of the Evidence
[15]   Bates next contends that the evidence is insufficient to support his conviction

       for Class B felony burglary. When reviewing the sufficiency of the evidence to

       support a conviction, appellate courts must consider only the probative

       evidence and reasonable inferences supporting the verdict. Sallee v. State, 51


       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017     Page 6 of 8
       N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of appellate

       courts, to assess witness credibility and weigh the evidence to determine

       whether it is sufficient to support a conviction. Id. It is not necessary that the

       evidence “overcome every reasonable hypothesis of innocence.” Id. (quotation

       omitted). “[T]he evidence is sufficient if an inference may reasonably be drawn

       from it to support the verdict.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)

       (quotation omitted).


[16]   In order to convict Bates of Class B felony burglary as charged here, the State

       had to prove that he broke into and entered Nancy’s dwelling with intent to

       commit a felony, to wit: theft, in it. Appellant’s App. Vol. II p. 40; Ind. Code

       Ann. § 35-43-2-1 (West 2012). Bates’s sole argument on appeal is that “there

       was no direct evidence that [he] formed the requisite intent to commit felony

       Theft at the time entry into the home was made.” Appellant’s Br. p. 13.


[17]   “Burglars rarely announce their intentions at the moment of entry.” Baker v.

       State, 968 N.E.2d 227, 229 (Ind. 2012). Accordingly, a burglar’s intent to

       commit a specific felony at the time of the breaking and entering may be

       inferred from the circumstances. Id. Here, when Nancy walked into the house,

       she saw Bates standing in the kitchen. She did not see anything in his hands at

       the time. But when Nancy saw Bates running away from the house moments

       later, she saw that he was carrying her brother’s diaper bag that had been sitting

       on the kitchen table. Bates does not dispute Nancy’s testimony that she saw

       him carrying her brother’s diaper bag. Possession of stolen property supports

       an inference of intent to commit theft at the time of the breaking and entering.

       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017     Page 7 of 8
       Patterson v. State, 729 N.E.2d 1035, 1042 (Ind. Ct. App. 2000); McBride v. State,

       597 N.E.2d 992, 994 (Ind. Ct. App. 1992). Accordingly, we find that the

       evidence is sufficient to support his conviction for Class B felony burglary.

[18]   Affirmed.

       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017   Page 8 of 8
