MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Dec 03 2015, 5:38 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
Yvette M. LaPlante                                      Gregory F. Zoeller
Keating & LaPlante, LLP                                 Attorney General of Indiana
Evansville, Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Herbert F. Breneman,                                    December 3, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A04-1506-CR-550
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable David D. Kiely,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        82C01-1501-F6-469



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1506-CR-550 | December 3, 2015        Page 1 of 4
[1]   Herbert Breneman appeals his conviction for Theft,1 a Level 6 felony.

      Breneman argues that the evidence is insufficient to establish that he has a prior

      unrelated conviction warranting the elevation of the crime from a class A

      misdemeanor to a Level 6 felony. Finding the evidence sufficient, we affirm.


[2]   On January 20, 2015, Wal-Mart loss prevention officer David Shephard

      watched Breneman take a computer off of a shelf, remove the security alarm,

      and attempt to leave the store without paying for the computer. On January 22,

      2015, the State charged Breneman with class A misdemeanor theft and included

      an enhancement to a Level 6 felony based upon a prior theft conviction. On

      April 14, 2015, a jury found Breneman guilty of class A misdemeanor theft and

      also found that he had a prior theft conviction, enhancing the conviction to a

      Level 6 felony. The trial court sentenced Breneman to two and one-half years

      imprisonment.


[3]   Breneman’s sole argument on appeal is that the evidence does not support the

      jury’s finding that he has a prior theft conviction. When reviewing the

      sufficiency of the evidence supporting a conviction, we will neither reweigh the

      evidence nor assess witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005

      (Ind. 2009). We will consider only the evidence supporting the judgment and

      any reasonable inferences that may be drawn therefrom, and we will affirm if a




      1
          Ind. Code § 35-43-4-2(a).


      Court of Appeals of Indiana | Memorandum Decision 82A04-1506-CR-550 | December 3, 2015   Page 2 of 4
      reasonable trier of fact could have found the defendant guilty beyond a

      reasonable doubt. Id.


[4]   Our Supreme Court has discussed the use of documents to establish the

      existence of prior felony convictions:


               “Certified copies of judgments or commitments containing a
               defendant’s name or a similar name may be introduced to prove
               the commission of prior felonies. Schlomer v. State, 580 N.E.2d
               950, 958 (Ind. 1991) (citing Andrews v. State, 536 N.E.2d 507 (Ind.
               1989)). While there must be supporting evidence to identify the
               defendant as the person named in the documents, the evidence
               may be circumstantial. Id.; see also Coker v. State, 455 N.E.2d 319,
               322 (Ind. 1983). If the evidence yields logical and reasonable
               inferences from which the finder of fact may determine beyond a
               reasonable doubt that it was a defendant who was convicted of
               the prior felony, then a sufficient connection has been shown.
               Pointer v. State, 499 N.E.2d 1087, 1089 (Ind. 1986).”


      Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (quoting Hernandez v. State, 716

      N.E.2d 948, 953 (Ind. 1999)).


[5]   In this case, the State offered into evidence certified copies of the charging

      information, chronological case summary, and abstract of judgment for State of

      Indiana v. Herbert Frank Breneman, No. 82C01-1307-FD-760. These documents

      establish that Herbert F. Breneman was charged with class D felony theft on

      July 11, 2013, that he pleaded guilty to the charge on August 8, 2014, and that

      on the same date, he was sentenced to eighteen months imprisonment for the

      crime.



      Court of Appeals of Indiana | Memorandum Decision 82A04-1506-CR-550 | December 3, 2015   Page 3 of 4
[6]   Additionally, loss prevention officer Shephard, who observed Breneman

      commit the theft in the case before us, was the same individual who

      apprehended Breneman in his prior theft. Shephard testified that on June 12,

      2013,2 he apprehended Breneman. He positively identified Breneman as the

      same person who had committed theft in the past.


[7]   In sum, the evidence shows the following: Shephard identified Breneman as

      the individual who was charged with committing theft in the past. The

      documents establish that the case number for that arrest is the same as the case

      number showing that Breneman pleaded guilty to and was sentenced for that

      crime. The name, including the middle name, was identical to the defendant

      before the jury in this case. All of this circumstantial evidence leads to a logical

      and reasonable inference that the Herbert F. Breneman in this case was the

      same Herbert F. Breneman who was convicted of theft in 2014. We find this

      evidence sufficient to support the jury’s finding that Breneman has a prior theft

      conviction that enhances his current conviction to a Level 6 felony.


[8]   The judgment of the trial court is affirmed.


      Bradford, J., and Pyle, J., concur.




      2
       We infer that the prosecutor made an inadvertent error by referring to June 2014 rather than June 2013
      when asking Shephard about the prior incident.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1506-CR-550 | December 3, 2015           Page 4 of 4
