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                         May 03 2013, 8:22 am

establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

KEVIN WILD                                        GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  JOSEPH Y. HO
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

KEVIN BRODLEY,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A02-1209-CR-725
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Grant Hawkins, Judge
                           Cause No. 49G05-1204-FC-23909



                                         May 3, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


SULLIVAN, Senior Judge
       Kevin Brodley appeals his convictions for Class C felony burglary, Class D felony

theft, and Class A misdemeanor criminal mischief as well as his adjudication as a

habitual offender. We affirm.

       Jeffrey Moe owned commercial property at 1642 East New York Street in

Indianapolis. Suites B and C shared an electric meter. Moe leased Suite C to Brodley’s

girlfriend Lisa Miller (“Lisa”) for Miss Bebb’s Pizza Parlor and Suite B to Rakeem

Satterfield for Rakeem’s Boutique. Arguments between Lisa and Satterfield about the

electricity bill were “very bitter.” Tr. p. 166.

       Sometime before April 2012, Satterfield left to serve overseas in Afghanistan. In

the meantime, his stepmother Toine Miller (“Toine”) looked after Rakeem’s Boutique.

Toine could not open the store every day because of her own job, but she stopped by to

check on it daily.

       On the morning of April 10, 2012, Marcos Santiago and Dustin Wells were doing

HVAC work on the building when they heard a loud thumping noise followed by a

shattering of glass. They went outside and saw a red Pontiac Grand Prix parked in front

of one of the suites. The glass of the suite’s door was shattered, and there was broken

glass on the sidewalk. After using their cell phones to take photos of the car, including

the license plate, they walked around the back of the building and called 911. Wells’s

photo of the car was taken at 9:06 a.m. The 911 call began at 9:07 a.m. As they circled

back to the front of the building, they saw the car pull away and head east on New York

Street. Santiago did not see how many people were in the car. Wells saw the driver, who

appeared to be male.

                                               2
        At 9:25 a.m., Officer Brian Mack of the Indianapolis Metropolitan Police

Department spotted a red Pontiac Grand Prix with the same plate number reported by

Santiago and Wells about a mile away at Michigan Street and Rural Street when it pulled

out in front of him from a parking lot. The car left the lot “very erratically” and “almost

got t-boned.” Id. at 102. Officer Mack followed the car while waiting for a backup unit

but pulled it over when it quickly turned onto East St. Clair Street.

        Terald Blakey was in the driver’s seat, and Brodley was in the front passenger

seat.     On the front passenger floorboard, police recovered a backpack containing

crowbars, channel locks, tin snips, a hammer, a screwdriver, a flashlight, three pairs of

gloves, and a knit cap with holes cut out for eyes. In the backseat, police recovered

clothing, towels, purses, luggage bags, watches, a cutlery set, Satterfield’s Army flag, and

a fur coat, all of which Toine identified as stolen from Rakeem’s Boutique. Chunks of

shattered glass and a tire iron were also found in the backseat.

        The Grand Prix was registered to Lisa. An identification card for Lisa was found

in the car, as well as a bank statement and an invoice belonging to Brodley. Brodley’s

wallet contained a membership card to “Reel One” for “Kevin and Lisa Brodley.” State’s

Ex. 56.

        The State charged Brodley with Class C felony burglary, Class D felony theft,

Class A misdemeanor criminal mischief, and being a habitual offender.1 A jury returned

guilty verdicts for burglary, theft, and criminal mischief as charged.


1
 Brodley was charged with other crimes, but they were ultimately dismissed. See Appellant’s App. pp.
15, 100.
                                                 3
       Brodley waived jury trial on the habitual offender allegation and was thus tried to

the bench. The State presented evidence that Brodley was convicted in 2003 of Class C

felony burglary and subsequently convicted in 2010 of Class C felony auto theft. The

auto theft had been elevated from a Class D felony due to his prior conviction for auto

theft in 1989. Brodley moved for judgment on the evidence, arguing that the crime for

which he received the 2010 conviction was not committed after the 2003 conviction since

the 2010 conviction relied on his 1989 conviction to elevate the offense from a Class D to

a Class C felony. The trial court denied the motion and adjudicated him a habitual

offender.

       The trial court imposed an aggregate nineteen-year sentence: seven years for

burglary enhanced by twelve years for the habitual offender finding, two years for theft,

and one year for criminal mischief, all to run concurrently.

       Brodley presents three issues in this appeal, which we consolidate and restate as:

       I.     Whether the evidence is sufficient to sustain his burglary, theft, and
              criminal mischief convictions.

       II.    Whether the habitual offender enhancement is proper.

        I. BURGLARY, THEFT, AND CRIMINAL MISCHIEF CONVICTIONS

       Brodley first contends that the evidence is insufficient to sustain his burglary,

theft, and criminal mischief convictions. In reviewing a sufficiency of the evidence

claim, we do not reweigh the evidence or assess the credibility of the witnesses.

Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). Rather, we look to the evidence and

reasonable inferences drawn therefrom that support the verdicts. Id. We affirm the


                                             4
convictions if there is probative evidence from which a reasonable jury could have found

the defendant guilty beyond a reasonable doubt. Id.

       Brodley points to Hampton v. State, 961 N.E.2d 480 (Ind. 2012), and argues that

we may sustain his convictions only if the evidence of his guilt is so conclusive as to

exclude every reasonable theory of innocence. See Appellant’s Br. p. 10. Hampton

involved an entirely different claim in an entirely different posture. There, a post-

conviction petitioner challenged his appellate counsel’s effectiveness for failing to argue

that the trial court erred by rejecting an instruction informing the jury that evidence of

guilt must be so conclusive as to exclude every reasonable theory of innocence where the

evidence of guilt is only circumstantial. In addressing the petitioner’s claim, the Supreme

Court held that when a trial court determines that the actus reus is established exclusively

by circumstantial evidence, the jury should be instructed that the proof must be so

conclusive as to exclude every reasonable theory of innocence. Id. at 491.

       How a jury should be instructed when evidence is only circumstantial, though, is

quite different from our standard when reviewing a jury’s verdict based solely on

circumstantial evidence. See Craig v. State, 730 N.E.2d 1262, 1266 (Ind. 2000). Where

there is only circumstantial evidence, that evidence need not overcome every reasonable

hypothesis of innocence; instead, it is sufficient if a reasonable inference supporting the

verdicts may be drawn from the evidence. Id.

       Brodley’s challenge is one of identification; he claims there is insufficient

evidence that he was the person who committed the crimes. However, the record shows

ample circumstantial evidence of his guilt. The State, while not required to show motive,

                                             5
presented evidence that Brodley’s girlfriend Lisa and Satterfield had “very bitter”

arguments about their businesses’ shared electricity bill. On April 10, 2012, Santiago and

Wells heard a loud thumping noise followed by a shattering of glass. When they went

outside to investigate, they saw Lisa’s red Pontiac Grand Prix parked in front of

Rakeem’s Boutique, the glass in the store’s door smashed, and broken glass scattered on

the sidewalk. As Santiago and Wells called 911, they saw the car driving off. Officer

Mack identified a red Pontiac Grand Prix with the same plate number reported by

Santiago and Wells driving “very erratically” some fifteen minutes later when it pulled

out in front of him. Upon stopping the car, Officer Mack found Brodley in the front

passenger seat with a complete burglar kit at his feet. The backseat was piled high with

items stolen from Rakeem’s Boutique along with chunks of broken glass and a tire iron.

This evidence is sufficient to sustain Brodley’s convictions.

       As to his criminal mischief conviction, Brodley also claims the evidence is

insufficient because the smashed glass was owned by Moe and thus not property of Toine

and/or Satterfield, as required by the charging information. The provision of the criminal

mischief statute at issue here requires the State to prove beyond a reasonable doubt that

Brodley recklessly, knowingly, or intentionally damaged or defaced “property of another

person” without that person’s consent. See Ind. Code § 35-43-1-2(a)(1) (2007). Contrary

to Brodley’s assertion, the language “property of another person” does not require the

State to prove ownership but only a possessory interest. See Wallace v. State, 896

N.E.2d 1249, 1252 (Ind. Ct. App. 2008) (noting that burglary statute language “building

or structure of another person” requires proof of rightful possession and not necessarily

                                             6
ownership), trans. denied. The evidence shows that Satterfield leased Suite B from Moe,

and that Toine looked after the property while Satterfield was away. This is sufficient to

show that the property damaged was property of Toine and/or Satterfield. See id. at

1252-53 (evidence sufficient to show house was property of another as required by

criminal mischief statute where person had rightful possession of house when defendant

damaged it by ripping furnace and water heater from basement).

       We therefore conclude the evidence is sufficient to sustain Brodley’s burglary,

theft, and criminal mischief convictions.

                    II. HABITUAL OFFENDER ENHANCEMENT

       Brodley next contends that the habitual offender enhancement is improper.

Generally, the State may seek to have a defendant sentenced as a habitual offender for

any felony by alleging that the defendant has accumulated two prior unrelated felony

convictions. See Ind. Code § 35-50-2-8(a) (2005). To prove the allegation, the State

must show that: “(1) the second prior unrelated felony conviction was committed after

sentencing for the first prior unrelated felony conviction; and (2) the offense for which

the state seeks to have the person sentenced as a habitual offender was committed after

sentencing for the second prior unrelated felony conviction.” Ind. Code § 35-50-2-8(c).

       For the first prior unrelated felony conviction, the State presented evidence that

Brodley committed Class C felony burglary in August 2002, was convicted of that

offense, and was sentenced in June 2003.        For the second prior unrelated felony

conviction, the State presented evidence that Brodley committed Class C felony auto

theft in July 2010, was convicted of that offense, and was sentenced in October 2010.

                                            7
       Brodley nonetheless argues that he did not commit the Class C felony auto theft

after the June 2003 sentencing for Class C felony burglary since the auto theft’s elevation

from a Class D to a Class C felony relied on his earlier conviction for auto theft in 1989.

We disagree. Merely because Brodley’s 2010 Class C felony auto theft conviction relied

on his 1989 auto theft conviction does not mean that the 2010 Class C felony auto theft

offense did not occur after his June 2003 sentencing for Class C felony burglary. See

Olatunji v. State, 788 N.E.2d 1268, 1273 (Ind. Ct. App. 2003) (1986 Class C felony

conviction and 1987 Class D felony conviction, elevated from a Class A misdemeanor

because of the 1986 conviction, properly used as predicate felonies supporting habitual

offender enhancement of 1988 felony conviction), trans. denied.

       Although Brodley’s 2010 auto theft conviction relied on his 1989 auto theft

conviction to elevate the 2010 offense from a Class D to a Class C felony, the 2010 auto

theft offense was still committed in 2010. Brodley has failed to show that the habitual

offender enhancement is improper.

       We therefore affirm the trial court’s judgment.

MAY, J., and MATHIAS, J., concur.




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