Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Dec 16 2014, 9:52 am
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:

LEANNA WEISSMANN                                   GREGORY F. ZOELLER
Lawrenceburg, Indiana                              Attorney General of Indiana

                                                   JODI KATHRYN STEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JEREMY DALLAS JENKINS,                             )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 15A01-1405-CR-225
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE DEARBORN SUPERIOR COURT
                          The Honorable Jonathan N. Cleary, Judge
                               Cause No. 15D01-1304-FB-14



                                       December 16, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Following a bench trial, Jeremy Dallas Jenkins appeals his conviction for Class B

felony burglary1 and raises the following two restated issues:

        I.      Whether the trial court erred when it admitted into evidence police
                testimony that the victim’s neighbor made a pointing gesture at the
                ceiling while talking to police; and

        II.     Whether Jenkins’s sixteen-year sentence is inappropriate.

        We affirm.

                           FACTS AND PROCEDURAL HISTORY

        On March 1, 2013, Candida Haney (“Haney”) and her two children, ages two and

four, moved into Apartment 211 of an apartment complex in Lawrenceburg, Indiana. On

the evening of March 26, 2013, Haney entered her apartment, after having been away a

couple of days, to find a number of things were out of place or missing. Her DVD player

had been moved from the television stand and was placed on the arm of her couch, and her

Gateway laptop computer, wireless mouse, and charger were missing. Other items she

later discovered missing were a Hello Kitty brand first aid kit, two sets of necklaces and

earrings purchased from Wal-Mart, a camera, several Victoria’s Secret body sprays, a pack

of Marlboro Lights 100s cigarettes taken from a now-empty carton in her closet, and a

Mickey Mouse watch. Haney also notice that the thermostat in her apartment was set at a

high temperature.

        Haney promptly contacted police, and she stayed in her living room until police

arrived at 8:25 p.m.          Lawrenceburg Police Department Officer Daniel Rosengarn


        1
         See Ind. Code § 35-43-2-1(1). We note that, effective July 1, 2014, a new version of this criminal
statue was enacted. Because Jenkins committed his crime in 2013, we will apply the statute in effect at that
time.

                                                     2
responded, gathered information from Haney, and told her to call him later if she found

that any more items were missing or out of place.

       Haney worked the third shift at her job, 10:00 p.m. to 6:00 a.m., and as she was

getting ready for work on March 26, she noticed in her closet that the shelving rack,

normally positioned above her hanging clothes, was broken and some articles of clothing

had fallen to the floor. She proceeded to go to work, but she called Officer Rosengarn at

approximately 11:30 p.m. and reported to him that she had found her closet in disarray.

Officer Rosengarn passed on the information to Detective Jeremy Shepherd.

       The next morning, after Haney returned home from work, she contacted the

apartment complex’s maintenance manager, Tom Allen, asking him to change the door

locks. Allen came to Haney’s apartment and inspected the door lock, which appeared in

normal working condition. Haney then asked Allen to view her closet. Allen noticed the

broken rack and “somebody’s footprint [] right on it,” and he saw that a small wooden

dresser placed under the rack also was broken. Tr. at 157. The access to the attic was

through the ceiling of Haney’s walk-in closet, and Allen saw insulation on the closet floor

under the access. Allen told her to call police.

       Haney made contact with Detective Shepherd, who arrived at Haney’s apartment

shortly thereafter. Detective Shepherd saw the broken shelf in the closet and drywall and

insulation on the floor under the access to the attic in Haney’s closet ceiling. Haney

discussed with him the various missing items and also noticed that a Febreze candle that

had been on top of the refrigerator was now on the closet floor. While police were on the

premises, Allen climbed on a ladder and looked through the attic access to see that the

                                              3
drywall between Haney’s apartment and Apartment 212, next door, had been broken

through, leaving a large hole. After speaking to Allen, Detective Shepherd looked in the

attic and could see that “there was a hole busted into to gain access into another apartment

through the attic.” Id. at 67. The attic space above the four upstairs apartments was divided

by fire walls, such that a person “[could not] get into another one unless you break through

the drywall.” Id. at 80.

        Thereafter, Detective Shepherd and another officer made contact with the resident

in Apartment 212, Shawna Henry, who was Jenkins’s wife and the official occupant of the

apartment, although Jenkins stayed at the apartment sometimes to visit his children. Henry

stepped out of her apartment and spoke to Detective Shepherd in the hallway for a few

moments.       After that brief conversation, and with her permission, officers entered

Apartment 212. Detective Shepherd noticed on the kitchen counter a pack of Marlboro

Lights 100s cigarettes, the same type as those missing from the carton in Haney’s closet.

Henry accompanied Detective Shepherd to the police department for an interview. Based

upon Henry’s interview with police, combined with what police had seen at the apartment

and in the attic, they believed that Jenkins was in the attic, so officers set up “a perimeter,”

in order to “flush out” Jenkins.2 Id. at 77. Later that day, after other officers arrived at the

scene, including a K-9 officer, Jenkins was apprehended when he emerged from the attic

into Apartment 213, a vacant upstairs apartment.



        2
          The residents of the upstairs apartments were asked to exit and wait in the parking lot during this
time. When asked to leave, the male resident of Apartment 214 told police that he had been asleep in bed
earlier that day, when he was awakened to the sound of someone trying to gain access to his apartment
through the attic.

                                                     4
       Officers patted down Jenkins and found a pack of Marlboro Lights 100s cigarettes

believed to be that which Detective Shepherd had seen on the counter when he entered

Apartment 212, and which officers suspected came from the now-empty Marlboro Lights

100s carton in Haney’s closet.3 In the attic, police recovered, among other things, a

backpack, which contained a laptop computer, a black charging cord, and a red computer

mouse, all of which belonged to Haney. Next to the backpack was a black coat, which

belonged to Jenkins. Upon investigation of Henry’s apartment, police located in a laundry

hamper various items belonging to Haney, including the three bottles of Victoria’s Secret

body spray, the Walmart jewelry, and the Hello Kitty first aid kit. Jenkins identified shoes

in Henry’s apartment as being his, and he told police he was staying at Henry’s apartment

at that time, in order to see his children.

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

Class A misdemeanor criminal mischief. At the bench trial, Detective Shepherd testified,

over Jenkins’s hearsay objection, that, while he was speaking to Henry in the hallway

outside of her apartment’s front door, he asked her if she knew anything about the burglary

at the apartment next door, and in response, she made a hand gesture toward the ceiling or

attic area above where they were standing. Thereafter, with Henry’s permission, officers

entered her apartment.        With officers later positioned in each of the four upstairs

apartments, they could hear that there was someone going from apartment to apartment in

the attic space, although the only person who possessed permission to go into the attic


       3
          During the course of the investigation, police learned that neither Jenkins nor Henry smoked
Marlboro Lights 100s; Jenkins generally smoked menthols, and his wife, Henry, smoked Marlboro Reds.
Tr. at 178.

                                                  5
space was Allen.

       Allen testified that, at the request of police, he went to Apartment 212 to retrieve

the ladder, when he noticed that the ladder had been moved from where it had been and

that the shower curtain had been pulled shut. He pulled back the shower curtain and found

Jenkins standing there. Allen attempted to take Jenkins to police, but Jenkins retreated

back into the attic. The police K-9 officer was summoned to the scene, with the plan to

send the K-9 into the attic area, but once the K-9 and his partner arrived and were ready to

enter the attic through Apartment 212, Jenkins came out of the attic into Apartment 213.

Sometime after Jenkins was apprehended, Allen returned and inspected the attic space and

found the fire walls between four upstairs apartments – 211, 212, 213, and 214 – had been

damaged. Detective Shepherd found insulation below the ceiling attic access in each of

the four apartments. Tr. at 177.

       Detective Shepherd testified that, prior to trial, police actively attempted to locate

Henry to serve a summons to testify at trial, but were unable to locate her. During the

course of those attempts, Detective Shepherd became aware of some recorded jail

telephone calls between Jenkins and his mother, in which Jenkins stated to his mother that

he needed her to keep Henry “occupied” or “away from here” so that Henry would not

appear in court to testify. Id. at 95, State’s Ex. 15. Jenkins’s statements in those taped

those phone calls were admitted at trial. Tr. at 106.

       The trial court found Jenkins guilty as charged, but the trial court vacated the theft

and criminal mischief convictions on double jeopardy grounds.            At the subsequent

sentencing hearing, the trial court found in aggravation that (1) Jenkins used the attic area

                                             6
to gain access to residents’ homes by “cutting holes” and “moving about” in the attic space

“and then drop into the apartments”; (2) Jenkins called his mother from jail and attempted

to obtain her help in keeping witnesses from testifying at his trial; (3) Jenkins has an

extensive criminal history, including four felonies and six misdemeanors; (4) Haney and

her two young children no longer feel safe in their home. Id. at 235, 238. In mitigation, it

found that (1) Jenkins has two young children; (2) he suffers from seizures; and (3) he

waived a jury trial and saved resources and expense. Thereafter, the trial court sentenced

Jenkins to sixteen years of incarceration for the Class B burglary conviction. Jenkins now

appeals.

                                 DISCUSSION AND DECISION

                                            I.      Hearsay

        Jenkins argues that the trial court erred when it permitted into evidence, over his

objection, Detective Shepherd’s testimony that Henry pointed to the attic when he was

speaking with her in the hallway outside her apartment. Jenkins claims that this gesture

constituted hearsay and was inadmissible. The trial court’s discretion to admit or exclude

evidence is broad, and it will not be reversed absent an abuse of that discretion. Sandefur

v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011). The trial court abuses its discretion if

its evidentiary ruling is clearly against the logic, facts, and circumstances before it. Id.

        As a general rule, hearsay evidence is inadmissible. Ind. Evidence Rule 802.4

Hearsay is defined as an out-of-court statement offered in court to prove the truth of the



        4
          Indiana’s evidence rule were slightly re-worded effective January 1, 2014, but the changes affect
only style and not substance.

                                                    7
matter asserted. Ind. Evid. R. 801(c). A “statement” is defined as (1) an oral or written

assertion, or (2) nonverbal conduct of a person, if it is intended by the person as an

assertion. Evid. R. 801(a); Pritchard v. State, 810 N.E.2d 758, 760 (Ind. Ct. App. 2004).

To be an assertion, a statement must allege a fact susceptible of being true or false.

Pritchard, 810 N.E.2d at 760.

       The statement that Jenkins challenges is the police officer’s testimony that described

Henry’s nonverbal gesture of pointing to the ceiling or attic area after he asked her if she

knew anything about the burglary that had occurred in her next-door neighbor’s apartment.

The State maintains that the gesture was not hearsay and was an observation that the officer

made, admitted to describe the course of the police investigation. When the admissibility

of an out-of-court statement received by a police officer during the course of an

investigation is challenged as hearsay, we first determine whether the testimony describes

an out-of-court statement that asserts a fact susceptible of being true or false. Corbally v.

State, 5 N.E.3d 463, 469-70 (Ind. Ct. App. 2014); Vertner v. State, 793 N.E.2d 1148, 1151

(Ind. Ct. App. 2003). If the statement contains no such assertion, it cannot be hearsay and

the objection should be overruled. Stewart v. State, 945 N.E.2d 1277, 1287 (Ind. Ct. App.

2011). If the statement does contain an assertion of fact, we consider the evidentiary

purpose of the proffered statement. Id. If it is to prove the truth of the matter asserted,

then it is inadmissible as hearsay unless there is an applicable exception. Id. On the other

hand, if the statement is offered for a purpose other than to prove the truth of the matter

asserted, “courts must consider whether the fact to be proved is relevant to some issue in

the case and whether the danger of unfair prejudice that may result from its admission

                                             8
outweighs its probative value.” Corbally, 5 N.E.3d at 470. We are cognizant of the fact

that, sometimes, Indiana courts have viewed the State’s efforts to introduce police officer

testimony relating to out-of-court statements “under the guise of ‘course-of-investigation’

evidence” with skepticism due to the possibility of its misuse, but we find no misuse or

error in the present case. Id.

       Over Jenkins’s hearsay objection, the trial court admitted the evidence that, while

speaking to officers in the hallway outside of her apartment, Henry “pointed to the upstairs,

the attic area[.]” Tr. at 73. The Detective’s statement was not offered to prove the truth of

the matter asserted, nor was it a statement that alleged a fact susceptible of being true or

false. Henry’s gesture did not identify Jenkins as the perpetrator. Rather, the Detective’s

testimony concerning Henry’s pointing gesture explained the subsequent conduct of the

police officers, i.e., their investigation of the attic of the apartment building to ascertain or

apprehend a suspect. We find that the trial court properly concluded the gesture was not

hearsay and was admissible. Compare Sandefur, 945 N.E.2d at 788 (officer’s testimony

that victim had mouthed words “he hit me” to officer was offered to prove truth of matter

asserted, namely that Sandefur had hit victim, and constituted hearsay, although ultimately

admissible under excited utterance exception).

       Even if Detective Shepherd’s testimony may be characterized as hearsay, its

admission was harmless error. When reviewing whether the erroneous introduction of

evidence was harmless, we must consider whether the evidence was likely to have

substantially swayed the jury’s verdict.       Corbally, 5 N.E.3d at 470.        The improper

admission of evidence is harmless error if we are satisfied that the conviction is supported

                                               9
by such substantial independent evidence of guilt that there is little likelihood the

challenged evidence contributed to the conviction. Id. In this case, before Detective

Shepherd went to speak to the occupant of Apartment 212, Haney, Allen, and Detective

Shepherd each observed insulation scattered on floor of Haney’s closet, directly under the

ceiling access to the attic. There was a footprint on Haney’s closet rack, now broken,

indicating someone had climbed in and out of her attic using it as a step. When Allen, and

later Detective Shepherd, looked into the attic from Haney’s closet access, each of them

observed that a hole had been punched through the drywall that divided the attic space

above Haney’s Apartment 211 and the apartment next door, Apartment 212. Thus, the

genesis of the investigation of the attic was not based solely on any pointing gesture made

by Henry to Detective Shepherd. Indeed, plenty of other evidence indicated that whoever

had entered Haney’s apartment did so via her attic access in her closet and that someone

had broken through the firewall dividing the apartments in the attic space. It was after

making the discovery of the hole in the attic drywall leading to Apartment 212 that

Detective Shepherd knocked on the door of Apartment 212 and spoke to Henry. More

police officers were called to the scene, and they heard someone running back and forth in

the attic area. At one point, Allen discovered Jenkins hiding in the shower behind a closed

curtain in Apartment 212. Although Allen tried to persuade Jenkins to speak with police,

Jenkins climbed into the attic, and he re-appeared when a K-9 officer arrived on the scene

and prepared to enter the attic. Once officers entered the attic, they found Jenkins’s coat

and a backpack containing items belongings to Haney, and they found in Henry’s

apartment, where Jenkins was staying, more items belonging to Haney. We are satisfied

                                            10
that Jenkins’s burglary conviction is supported by such substantial independent evidence

of guilt that there is little likelihood the challenged evidence contributed to the conviction.

The trial court did not err in admitting Detective Shepherd’s testimony.

                                     II.     Sentencing

       Jenkins claims that his sixteen-year sentence is inappropriate. Under Indiana

Appellate Rule 7(B), this “Court may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the Court finds that the sentence is inappropriate

in light of the nature of the offense and the character of the offender.” The question under

Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the

question is whether the sentence imposed in inappropriate. King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008) (emphasis in original). In performing our review, we assess “the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). We understand and recognize the unique perspective a trial court

brings to its sentencing decisions. Corbally, 5 N.E.3d at 471. It is the defendant’s burden

on appeal to persuade the reviewing court that the sentence imposed by the trial court is

inappropriate. Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.

       For his Class B felony burglary conviction, Jenkins faced a sentencing range of six

years to twenty years, with the advisory sentence being ten years. See Ind. Code § 35-50-

2-5.; Hall v. State, 944 N.E.2d 538, 541 (Ind. Ct. App. 2011), trans. denied. Here, the trial

court sentenced Jenkins to sixteen years. Jenkins asks us to revise his sentence to the ten-

year advisory term, suggesting that would fit the circumstances of his offense where he

                                              11
“snuck into an unoccupied apartment and took a laptop and items of small pecuniary value”

and “[n]o one was injured and the items were all returned, undamaged.” Appellant’s Br.

at 14.

         With regard to the nature of the offense, we disagree with Jenkins’s characterization

of the apartment as being “unoccupied.” Haney and her two small children resided there,

having just moved in weeks prior, and to that extent, the apartment was indeed occupied,

with the occupants simply being not at home when Jenkins snuck into Haney’s apartment

and took a number of her possessions. As the trial court found in aggravation, Jenkins’s

conduct effectively robbed Haney and her children of a feeling of safety and security in

their home. The trial court also recognized the covert manner of entry into Haney’s

apartment, through the attic access in her bedroom closet, and that the evidence further

showed that Jenkins had been “moving about” in the attic and “dropping into” other

apartments in this same fashion, all of which added to the culpability and severity of the

nature of the offense. Tr. at 235, 238. Jenkins has failed to persuade us that the nature of

the offense warrants revision of his sentence.

         Moving next to the question of character, evidence at trial established that on at least

several occasions Jenkins, in recorded telephone calls from jail, tried to prevent witnesses

from testifying at his trial. This obviously reflects poorly on his character. His criminal

history, which the trial court considered “significant,” likewise does not reflect positively

on his character. Id. at 238. By age thirty-four, Jenkins had amassed four felony

convictions, six misdemeanor convictions, and four probation violations. Jenkins suggests

that we should reduce his sentence because he is “a drug addict capable of redemption.”

                                                12
Appellant’s Br. at 13. As the State observed, Jenkins never fully acknowledged having a

substance abuse problem. The probation officer’s report in the presentence investigation

report indicated that Jenkins denied any addiction; at sentencing, Jenkins conceded that he

“had involvement” with marijuana and continued, “I’ve dabbled in other things, but prefer

not to go into it.” Tr. at 212. There is no indication in the record that Jenkins ever sought

treatment.     His character does not demonstrate that his sixteen-year sentence was

inappropriate.      Jenkins has failed to persuade us that the sixteen-year sentence is

inappropriate in light of the nature of the offense and the character of the offender.

        Affirmed.5

BAKER, J., and ROBB, J., concur.




        5
           Although aggravating or mitigating circumstances generally are not independently addressed in
an inappropriate sentence analysis, we nevertheless wish to note that, here, the trial court identified as a
mitigator that Jenkins waived his right to a jury trial. While Indiana courts have recognized that defendants
who plead guilty deserve “some” mitigating weight be given to the plea, our colleague Judge Bradford
determined, and we agree, that waiver of right to a jury trial is not analogous to a guilty plea. McSchooler
v. State, 15 N.E.3d 678, 685 (Ind. Ct. App. 2014) (citing Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007),
modified on other grounds on reh’g, 875 N.E.2d 218, 220 (Ind. 2007)). “Although the State is saved some
expense in both circumstances, a guilty plea often demonstrates a defendant’s acceptance of responsibility,
whereas waiver of jury trial does not.” Id.; see also Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005) (guilty
plea is not considered significant mitigating factor solely because it saves time and expense, as it must also
demonstrate defendant’s acceptance of responsibility for the crime). Judge Bradford concluded that “in
some cases” it may be appropriate to accord waiver of jury trial mitigating weight, but McSchooler had
failed to establish it in his case. McSchooler, 15 N.E.3d at 685. While we agree with Judge Bradford’s
conclusion that a guilty plea and waiver of jury trial are not analogous, we are troubled by the proposition
that waiver of one’s right to trial by jury ever might be considered a valid mitigating factor. We find that
doing so could amount to an inducement to waive a fundamental constitutional right, as well as bring into
question whether the waiver was voluntarily made. See e.g., People v. Dixon, 63 Cal. Rptr. 637, 644 (Cal.
Ct. App. 2007) (recognizing trial court’s pre-trial statement to defendant that waiver of jury trial would be
considered a mitigating factor at sentencing was “an improper promise of a benefit for waiving a
fundamental constitutional right”), review denied. Accordingly, we caution trial courts about considering
waiver of right to trial by jury as a mitigator.

                                                     13
