Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                            Feb 17 2014, 7:26 am
regarded as precedent or cited before 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:

JANE H. CONLEY                                      GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    CYNTHIA L. PLOUGHE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CHRISTOPHER SMITH,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A04-1306-CR-301
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Amy J. Barbar, Judge
                            Cause No. 49G02-1108-FB-60414



                                        February 17, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Christopher Smith (“Smith”) was convicted, after a bench trial, of burglary1 as a

Class B felony, criminal mischief2 as a Class B misdemeanor and was determined to be an

habitual offender.3 He appeals, raising the following restated issues for our review:

       I.        Whether sufficient evidence was presented to support his conviction
                 for burglary; and

       II.       Whether the trial court erred in conducting Smith’s trial in absentia.

       We affirm.

                               FACTS AND PROCEDURAL HISTORY

       On August 28, 2011, Travis Shoemake (“Shoemake”) was living with his mother in

her home and had fallen asleep on the sofa in the den at approximately 11:00 p.m. His

mother was not home at the time. About forty minutes after he had fallen asleep, Shoemake

woke up and heard something that sounded like breaking glass. He walked into different

rooms to try to determine where the sound “was coming from” and then “heard [a] light

switch go off.” Tr. at 14. Shoemake then went back to the sofa and retrieved his gun. He

saw that the light was on in his mother’s bedroom, and when he peeked into her room, he

observed a man, later identified as Smith, inside the room wearing a white t-shirt.

Shoemake went back to the den and called 911. Shoemake then heard doors being opened

and sensed that Smith was moving down the hallway. Shoemake moved to a spare

bedroom and got behind the door. The light turned on inside the spare bedroom, and when



       1
           See Ind. Code § 35-43-2-1.
       2
           See Ind. Code § 35-43-1-2.
       3
           See Ind. Code § 35-50-2-8.

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he looked around the door, he recognized Smith as someone he knew from the

neighborhood. Shoemake jumped out and pointed his gun at Smith. Smith, who was

surprised, started yelling apologies when he realized he knew Shoemake. Smith stated he

did not know that Shoemake “stayed there” and was “sorry [he was] doing bad.” Id. at 17.

Shoemake knew the police were on their way, so he moved Smith to the garage.

      Indianapolis Metropolitan Police Department Officer Jerry Torres (“Officer

Torres”) was dispatched to Shoemake’s residence on the report of a burglary in progress

with the suspect being a black male wearing a white t-shirt. He arrived and walked around

the house, eventually finding a broken window that appeared to lead to a bedroom. Officer

Torres went back to the front of the house and observed the garage door opening. He saw

Smith, who was wearing a white t-shirt, come out of the garage and ordered him to get

down on the ground. During a search of Smith, Officer Torres discovered jewelry and

change that belonged to Shoemake’s mother and had been located on the dresser in her

bedroom.

      The State charged Smith with Class B felony burglary, Class D felony theft, and

Class B misdemeanor criminal mischief and with being an habitual offender. The trial

court first scheduled a jury trial for October 17, 2011. The parties, including Smith, who

was incarcerated at the time, appeared in court on October 14, 2011 for a hearing at which

Smith waived his right to a jury trial. The trial court granted the State’s motion for a

continuance of the trial and scheduled a bench trial for November 4, 2011. On November

4, the parties, including the still-incarcerated Smith, appeared for the trial. The State

requested a body attachment order for Shoemake, who had been subpoenaed but had not

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appeared for the trial. The trial court granted the State’s motion and issued a body

attachment order for Shoemake. The trial court rescheduled the trial for December 9, 2011

and released Smith on his own recognizance.

       On December 9, 2011, the State and Smith’s defense counsel appeared for the trial.

Smith failed to appear. Defense counsel stated that she had not been able to contact Smith

since his release on his own recognizance. Id. at 11. She had attempted contact “a couple”

of times, but could not locate him. Id. She told the trial court that she had spoken to a

male at a telephone number given as belonging to a family member, and the male told her

he did not know where Smith was, but that “[Smith] knew he had court today.” Id.

       The trial court proceeded with the trial in absentia and found Smith guilty of Class

B felony burglary, Class D felony theft, and Class B misdemeanor criminal mischief; the

theft conviction was merged into the burglary conviction. The trial court issued a warrant

for Smith’s arrest, and he was re-arrested on January 4, 2012. He signed a plea agreement,

in which he admitted he was an habitual offender. On May 29, 2013, after several

continuances, sentencing was held, and the trial court ordered Smith to serve sixteen years

for his burglary conviction, enhanced by ten years due to his habitual offender

determination, and 365 days for his criminal mischief conviction to be served concurrently

with each other for a total of twenty-six years executed. Smith now appeals.

                               DISCUSSION AND DECISION

                                 I. Sufficient Evidence

       Our standard of reviewing claims of sufficiency of the evidence is well settled.

When reviewing the sufficiency of the evidence, we consider only the probative evidence

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and reasonable inferences supporting the verdict. Boggs v. State, 928 N.E.2d 855, 864

(Ind. Ct. App. 2010), trans. denied. We do not reweigh the evidence or assess witness

credibility. Id. We consider conflicting evidence most favorably to the trial court’s ruling.

Id. We will affirm the conviction unless no reasonable fact-finder could find the elements

of the crime proven beyond a reasonable doubt. Id. It is not necessary that the evidence

overcome every reasonable hypothesis of innocence. Id. The evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id. A conviction may

be based upon circumstantial evidence alone. Bockler v. State, 908 N.E.2d 342, 346 (Ind.

Ct. App. 2009).

       Smith argues that State failed to present sufficient evidence to support his conviction

for burglary. He contends that there was not sufficient evidence to prove he had the intent

to commit a felony when he entered the dwelling of Shoemake and his mother.

Specifically, he asserts the evidence did not prove that he intended to deprive Shoemake

or his mother of any part of the value or use of their property.

       In order to convict Smith of burglary, the State was required to prove that Smith

broke into and entered the dwelling of Shoemake and his mother, with the intent to commit

the felony of theft therein. See Ind. Code § 35-43-2-1; Appellant’s App. at 31. Theft is the

knowing or intentional exertion of unauthorized control over property of another person

with intent to deprive that person of any part of its value or use. I.C. § 35-43-1-2(a). Intent

is a mental state and, absent an admission by the defendant, the trier of fact must resort to

the reasonable inferences from both the direct and circumstantial evidence to determine

whether the defendant has the requisite intent to commit the offense in question. Stokes v.

                                              5
State, 922 N.E.2d 758, 764 (Ind. Ct. App. 2010), trans. denied.

        Here, the evidence presented showed that, after Shoemake heard the sound of

breaking glass, he observed Smith inside his mother’s bedroom. Shoemake testified that

the bedroom was in disarray, but had not been before Smith had broken into the house. Tr.

at 21. This evidence supports the reasonable inference that it was Smith who rummaged

through the items in the bedroom looking for items to steal, which in turn, supports the

inference that he broke into the residence with the intent to commit theft. See May v. State,

810 N.E.2d 741, 745 (Ind. Ct. App. 2004) (finding inference of intent to commit theft where

house was in disarray, closets had been rummaged through, and clothes were lying on the

floor). Additionally, Smith was found to be in possession of jewelry belonging to

Shoemake’s mother when he was confronted by Shoemake and when the police took him

into custody. The jewelry was usually located on the dresser in the bedroom where Smith

had entered after breaking the window. Tr. at 19. This also supports a reasonable inference

that Smith broke into the house with the intent to commit theft. See Keller v. State, 987

N.E.2d 1099, 1118 (Ind. Ct. App. 2013) (finding inference of intent to commit theft where

items identified as victim’s were recovered from defendant’s garage and home), trans.

denied. We, therefore, conclude that sufficient evidence was presented to support the

reasonable inference that Smith entered Shoemake’s residence with the intent to commit

theft and to support his conviction for burglary.4


        4
           Smith also argues that his conviction for criminal mischief was not supported by sufficient
evidence because the State did not prove that he was the one who broke the window in the bedroom. Smith
fails to make a cogent argument in support of this assertion. Failure to put forth a cogent argument acts as
a waiver of the issue on appeal. Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006), trans. denied.
Thus, Smith has waived the issue on appeal.

                                                     6
                                    II. Trial In Absentia

       Smith argues that the trial court erred in conducting his trial in absentia because he

did not knowingly and voluntarily waive his right to be present at the trial. Both the Federal

and Indiana Constitutions afford defendants in a criminal proceeding the right to be present

at all stages of their trial. U.S. Const. amend. VI; Ind. Const. art. I, § 13. However, a

defendant may be tried in absentia if the trial court determines that the defendant

knowingly and voluntarily waived that right. Jackson v. State, 868 N.E.2d 494, 498 (Ind.

2007). When a defendant fails to appear for trial and fails to notify the trial court or provide

it with an explanation of his absence, the trial court may conclude the defendant’s absence

is knowing and voluntary and proceed with trial when there is evidence that the defendant

knew of his scheduled trial date. Id.; see also Soliz v. State, 832 N.E.2d 1022, 1029 (Ind.

Ct. App. 2005) (stating that best evidence that defendant knew trial date is defendant’s

presence in court on date matter is set for trial), trans. denied. On appeal, we consider the

entire record to determine whether the defendant voluntarily, knowingly, and intelligently

waived his right to be present at trial. Brown v. State, 839 N.E.2d 225, 228 (Ind. Ct. App.

2005), trans. denied. A defendant’s explanation of his absence is a part of the evidence

available to a reviewing court in determining whether it was error to try him in absentia.

Id.

       Here, the record shows that Smith was informed at the hearing held on November

4, 2011 that his trial was scheduled for December 9, 2011. He was present in person and

with counsel at that hearing. “The ‘best evidence’ of a defendant’s knowledge of the trial

date is the defendant’s presence in court on the day the matter is set for trial.” Id. at 227

                                               7
(citing Fennell v. State, 492 N.E.2d 297, 299 (Ind.1986)). Additionally, on the date of the

trial, Smith’s counsel told the trial court that she had not had any contact with Smith since

he was released on his own recognizance several weeks prior. Tr. at 11. She stated she

had tried to contact him a few times, but was not able to locate him. Id. She told the trial

court she had spoken to a man at a telephone number she believed belonged to a family

member, and the male told her he did not know where Smith was, but that “[Smith] knew

he had court today.” Id. Accordingly, when Smith failed to show up for his scheduled

trial, the court was permitted to presume that Smith voluntarily waived his right to be

present and could therefore try him in absentia. Brown, 839 N.E.2d at 228. While the trial

court was not required to make further inquiry sua sponte as to the presumption, Smith

could not be prevented from offering an explanation in an attempt to rebut the presumption

of voluntary waiver. Id. However, when Smith did later appear after being re-arrested, he

did not offer any reason why he had failed to appear for his trial date. We cannot say the

trial court erred in determining that Smith voluntarily waived his right to be present at trial

and in conducting his trial in absentia.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




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