 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
 establishing the defense of res judicata,                  Mar 13 2013, 9:09 am
 collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
JEFFREY S. JACOB                                   GREGORY F. ZOELLER
CHRISTOPHER B. SERAK                               Attorney General of Indiana
Jacob, Hammerle & Johnson
Zionsville, Indiana                                CYNTHIA L. PLOUGHE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

JOSHUA D. HUFF,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 06A01-1208-CR-396
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                      APPEAL FROM THE BOONE SUPERIOR COURT
                          The Honorable Rebecca McClure, Judge
                              Cause No. 06D02-1205-FB-335


                                         March 13, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Joshua Huff (“Huff”) was convicted in Boone Superior Court of Class B felony

burglary and Class D felony theft and ordered to serve an aggregate fifteen-year sentence

in the Department of Correction. Huff appeals his convictions and raises two issues,

which we restate as:

       I. Whether the evidence is sufficient to support Huff’s burglary conviction; and,

       II. Whether the trial court abused its discretion when it instructed the jury on

       accomplice liability.

       Concluding that the trial court abused its discretion when it tendered erroneous

accomplice liability instructions to the jury, but that the error was harmless and the

evidence is sufficient to support his burglary conviction, we affirm.

                               Facts and Procedural History

      Huff and his girlfriend, Cara Crane (“Crane”), are heroin addicts. On May 1, 2012,

Huff and Crane discussed stealing items and pawning them to obtain funds to purchase

heroin. Tr. p. 86. Crane told Huff that her aunt, Tammy Spidel (“Spidel”) always left the

door to her house unlocked. Crane then used Huff’s cellphone to text Spidel to ask when

Spidel would be home. Crane told her aunt that she wanted to use her hot tub. Spidel

responded that she would not be home that evening until after 5:30 p.m.

       Crane then called Dustin Pennington (“Pennington”) and asked Pennington to take

her to Spidel’s home. Crane told Pennington that she wanted to see if her aunt left the

door unlocked, and to steal items from the home. After Crane spoke to Pennington, she

relayed the conversation to Huff. Pennington, accompanied by his girlfriend, Tanya



                                             2
Ellsberry (“Ellsberry”), drove Ellsberry’s vehicle to Crane’s home and picked up Crane

and Huff.

      The foursome proceeded to Spidel’s house as planned. Crane and Pennington

walked around to the back of the residence while Huff and Ellsberry waited in the vehicle.

The door to Spidel’s home was locked, and Pennington broke the door down to gain

access to the home. Pennington and Crane returned to the vehicle with several items

stolen from Spidel’s home, including a jar of change, two rings, and several watches.

      Pennington then delivered Ellsberry to her place of employment.               Next,

Pennington, Crane, and Huff drove to a nearby Marsh grocery store.              All three

individuals entered the grocery store and used a Coinstar™ machine to obtain cash for

the jar of coins totaling $95.40. They then proceeded to a store specializing in buying

gold for cash. Pennington took the two rings into the store and sold them for $35.

Pennington and Huff went into two pawn shops together to attempt to sell watches they

stole from Spidel’s residence but were only able to sell one watch.

      Next, the threesome stopped at a pizza restaurant and purchased pizza.

Pennington asked more than one customer if the customer would be interested in

purchasing a watch. Huff also tried to sell one of the watches while there. Tr. p. 109.

After unsuccessfully attempting to sell the watches, they drove to a nearby neighborhood.

Pennington purchased several packages of heroin and divided the heroin between himself,

Huff and Crane. Tr. p. 112. They then returned to Zionsville and picked up Ellsberry

who had completed her shift at work. Thereafter, Pennington, Huff, Crane, and Ellsberry

drove to a motel on Post Road where Pennington traded an iPod for heroin. Pennington

                                            3
also divided that heroin between himself, Huff and Crane. Tr. p. 115. After Crane

returned home, her mother confronted her about the burglary that had occurred at

Spidel’s house, and Crane admitted her involvement in the burglary.

          On May 16, 2012, Huff was charged with Class B felony burglary and Class D

felony theft. A two-day jury trial commenced on July 10, 2012. Before Huff’s trial

began, Crane and Ellsberry entered into plea agreements with the State, and they both

testified at Huff’s trial.

          During discussion of the tendered final jury instructions, the trial court agreed to

give Final Instructions 7, 8, and 9 over Huff’s objection. Instructions 7 and 8 informed

the jury of the definitions of “aiding, inducing, or causing” burglary and theft, and each

instruction listed specific facts the State was required to prove for the jury to find Huff

guilty of those offenses. See Appellant’s App. pp. 120-21. Final Instruction 9 is a

general accomplice liability instruction.

          The jury found Huff guilty as charged. The trial court ordered Huff to serve an

aggregate fifteen-year sentence in the Department of Correction. Huff now appeals.

Additional facts will be provided as necessary.

                                          I. Sufficient Evidence

          Huff argues that the evidence is insufficient to support his Class B felony burglary

conviction.1 Upon a challenge to the sufficiency of the evidence, we neither reweigh the

evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d 124, 129

(Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans.
1
    Huff does not challenge the sufficiency of the evidence supporting his theft conviction.

                                                       4
denied. Rather, we consider only the probative evidence supporting the conviction and

the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of

probative value from which a reasonable trier of fact could have drawn the conclusion

that the defendant was guilty of the crime charged beyond a reasonable doubt, then the

verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App.

2008).

         Indiana Code section 35-43-2-1 provides that “[a] person who breaks and enters

the building or structure of another person, with the intent to commit a felony in it,

commits burglary[.].” The offense is classified as a Class B felony if the building or

structure is a dwelling. I.C. § 35-43-2-1(1). In this case, the State proceeded to trial on

the theory of accomplice liability because it is undisputed that Huff did not break into and

enter Spidel’s home.

         The accomplice liability statute does not set forth a separate crime, but merely

provides a separate basis of liability for the crime that is charged. Norvell v. State, 960

N.E.2d 165, 168 (Ind. Ct. App. 2011), trans. denied. Thus, an individual who aids

another person in committing a crime is as guilty of the crime as the actual perpetrator.

Specht v. State, 838 N.E.2d 1081, 1093 (Ind. Ct. App. 2005), trans. denied. In other

words, “a defendant may be convicted as a principal upon evidence that he aided or

abetted in the perpetration of the charged crime.” Id.; see also Ind. Code § 35-41-2-4 (“A

person who knowingly or intentionally aids, induces, or causes another person to commit

an offense commits that offense.”). And an accomplice need not participate in each and

every element of the crime in order to be convicted of it. Specht, 838 N.E.2d at 1092.

                                             5
       In determining whether a person aided another in the commission of a crime, a

court should consider the following four factors: (1) the defendant’s presence at the scene

of the crime; (2) the defendant’s companionship with another engaged in criminal

activity; (3) the defendant’s failure to oppose the crime; and (4) the defendant’s conduct

before, during, and after the occurrence of the crime. Vandivier v. State, 822 N.E.2d

1047, 1054 (Ind. Ct. App. 2005) (citing Garland v. State, 788 N.E.2d 425, 431 (Ind.

2003)), trans. denied. Although the defendant’s mere presence during the commission of

the crime or his failure to oppose the crime are, by themselves, insufficient to establish

accomplice liability, the jury may consider them along with other facts and circumstances

tending to show participation. Id. “Mere tangential involvement in the crime can be

sufficient to convict a person as an accomplice.” Berry v. State, 819 N.E.2d 443, 450

(Ind. Ct. App. 2004), trans. denied.

       Huff argues that the State was required, but failed to prove, that he “undertook

some affirmative conduct intended to aid or facilitate the physical act of burglary.”

Appellant’s Br. at 6. In support of his argument, Huff cites to several cases affirming

burglary convictions on a theory of accomplice liability where the Appellant-Defendant

acted as a lookout, transported accomplices to and/or from the crime scene, carried stolen

items from the dwelling, or provided items used in the burglary. See id. at 6-7.

       Huff’s insistence that he did not actively participate in the actual breaking and

entering of Spidel’s house is accurate. However, on the day of the burglary, Huff and

Crane discussed stealing items to pawn to obtain money to purchase heroin. Tr. p. 86.

Crane told Huff that Spidel would not be at home and that her door was always unlocked.

                                            6
Crane then used Huff’s cellphone to determine whether Spidel was at home and to call

Pennington to arrange transportation to Spidel’s house.

        Huff accompanied Crane and Pennington to Spidel’s house and remained in the

vehicle while Crane and Pennington broke and entered the house. After Crane and

Pennington returned the vehicle with items stolen from Spidel’s house, Huff and

Pennington had a discussion with Crane “about how they couldn’t get in any more

trouble and caught for this[.]” Tr. p. 98.

        When Huff saw the jar of change that Pennington stole from Spidel, he asked

Crane and Pennington how much money they thought was in the jar. The threesome then

went into a Marsh grocery store and cashed in the change using the store’s Coinstar™

machine. They then all returned to the vehicle and proceeded to a store that specializes in

buying gold for cash where Pennington sold the rings taken from Spidel’s house.

        Next, Pennington drove to a pawn shop. Huff and Pennington both went into the

pawn shop to attempt to pawn the stolen watches. They were unsuccessful at the first

pawn shop, but the second pawn shop purchased a watch. Both Huff and Pennington

went into second pawn shop.

        The threesome went to a Little Caesar’s pizza store where they purchased pizza

and attempted to sell the remaining watches to customers. Huff unsuccessfully attempted

to sell one of the watches. Tr. p. 109. Pennington then used the money obtained from the

sale of the stolen items to purchase heroin, which he divided between himself, Crane, and

Huff.



                                             7
       This evidence is sufficient to convict Huff of burglary under the theory of

accomplice liability.    Huff knew of Crane’s plan to burglarize her aunt’s home,

accompanied her to Spidel’s house, was present at the scene of the crime, and aided

Crane and Pennington in acquiring cash for the stolen items. Huff did so with the intent

of obtaining money to purchase heroin. Huff’s argument to the contrary is merely an

invitation to reweigh the evidence and the credibility of the witnesses, which our court

will not do.

                                   II. Jury Instructions

       Huff next argues that the trial court abused its discretion when it instructed the

jury on accomplice liability. In reviewing this claim, we are mindful that the manner of

instructing the jury is left to the sound discretion of the trial court. Rogers v. State, 897

N.E.2d 955, 962 (Ind. Ct. App. 2008), trans. denied. We will not reverse the trial court’s

ruling unless the instructional error is such that the charge to the jury misstates the law or

otherwise misleads the jury. Id. Jury instructions must be considered as a whole and in

reference to each other. Id. An erroneous instruction will not constitute reversible error

if the instructions, taken as a whole, do not misstate the law or otherwise mislead the jury.

Id.

       In reviewing a trial court’s decision to give or refuse a tendered instruction, we

consider: (1) whether the instruction correctly states the law; (2) whether there is

evidence in the record to support the giving of the instruction; and (3) whether the

substance of the tendered instruction is covered by other given instructions. Id. Finally,

“errors in the giving or refusing of instructions are harmless where a conviction is clearly

                                              8
sustained by the evidence and the jury could not properly have found otherwise.”

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008).

      The challenged instructions provide as follows:

                                  Final Instruction # 7

      Aiding, inducing, or causing Burglary is defined by statute as follows: A
      person who, knowingly, or intentionally, aids, induces, or causes another
      person to commit an offense commits that offense. A person may be
      convicted of aiding, inducing, or causing Burglary even if the other person
      has not been prosecuted for the burglary, has not been convicted of the
      burglary, or has been acquitted of the burglary.

      Before you may convict the Defendant, the State must have prove each of
      the following elements beyond a reasonable doubt:

             1. The Defendant, Joshua D. Huff
             2. knowingly or intentionally
             3. aided, induced, or caused
             4. Dustin Pennington and/or Cara Crane to commit the offense of
             Burglary, defined as
                    a. Dustin Pennington and/or Cara Crane
                    b. Knowingly or intentionally
                    c. Breaking and entering
                    d. Into the dwelling of another person, Tammy Spidel
                    e. With the intent to commit a felony, Theft, in it, by exerting
                    unauthorized control over the property of another person,
                    with the intent to deprive said person of any part of the use or
                    value of the property.
             5. by allowing Cara Crane to use his cell phone; by going with
             Dustin and/or Cara to the residence of Tammy Spidel for the
             purposes of Cara and/or Dustin acquiring property without
             permission to sell or pawn; sitting in the vehicle while Dustin and or
             Cara entered into the residence of Tammy Spidel; discussing how
             much money could be received from items stolen; going with Dustin
             and/or Cara to various locations to get money for the items stolen;
             attempting to sell the items that were stolen; not reporting this
             incident to law enforcement; denying he was ever at the scene of the
             burglary; receiving heroin from the sale of the items stolen.



                                            9
If the State failed to prove each of the elements, beyond a reasonable doubt,
you must find the Defendant not guilty of aiding, inducing, or causing
Burglary, a Class B felony, charged in Count I.

                            Final Instruction # 8

Aiding, inducing, or causing Theft is defined by statute as follows: A
person who, knowingly, or intentionally, aids, induces, or causes another
person to commit an offense commits that offense. A person may be
convicted of aiding, inducing, or causing theft even if the other person has
not been prosecuted for the theft, has not been convicted of the theft, or has
been acquitted of the theft.

Before you may convict the Defendant, the State must have prove each of
the following elements beyond a reasonable doubt:

      1. The Defendant, Joshua D. Huff
      2. knowingly or intentionally
      3. aided, induced, or caused
      4. Dustin Pennington and/or Cara Crane to commit the offense of
      Theft, defined as
              a. Dustin Pennington and/or Cara Crane
              b. Knowingly or intentionally
              c. exerted unauthorized control over the property of another
              person, Tammy Spidel,
              d. with the intent to deprive the other person of any part of its
              value or use
      5. by allowing Cara Crane to use his cell phone; by going with Dustin
      and/or Cara to the residence of Tammy Spidel for the purposes of
      Cara and/or Dustin acquiring property without permission to sell or
      pawn; sitting in the vehicle while Dustin and or Cara entered into the
      residence of Tammy Spidel; discussing how much money could be
      received from items stolen; going with Dustin and/or Cara to various
      locations to get money for the items stolen; attempting to sell the
      items that were stolen; not reporting this incident to law enforcement;
      denying he was ever at the scene of the burglary; receiving heroin
      from the sale of the items stolen.

If the State failed to prove each of these elements, beyond a reasonable
doubt, you must find the Defendant not guilty of aiding, inducing, or
causing Theft, a Class D felony, charged in Count II.



                                      10
                                   Final Instruction # 9

       A person may be convicted upon evidence that he aided in the commission
       of a crime, it is not necessary that the evidence show that the defendant
       participated personally in the commission of each element of the crime.
       The trier of fact may infer an accomplice’s participation in a crime from
       several factors considered together, including presence, failure to oppose
       the crime, companionship with a principal, and conduct, before, during,
       and after the offense which tends to show complicity.

Appellant’s App. pp. 120-22.

       Huff argues that these instructions are improper because “they are [r]epetitive,

[a]rgumentative and [s]lanted in [f]avor of [p]roving the State’s [c]ase for [c]onviction.”

Appellant’s Br. at 9.     Although Huff concedes that tendering jury instructions on

accomplice liability was supported by the evidence and the instructions correctly state the

law, he contends that

       the instructions present a reversible error because they do not include
       potentially exculpatory elements governing case law and because they
       misrepresent facts in a manner that creates a misleading perception to a jury
       of how the law relates to the evidence presented.

Id. at 13.

       Huff correctly observes that mere presence at the crime scene or a defendant’s

failure to oppose the crime is insufficient proof to support a conviction. See Rohr v. State,

866 N.E.2d 242, 248-49 (Ind. 2007); Vandivier, 822 N.E.2d at 1054. The jury must be

instructed that accomplice liability requires proof that the defendant engaged in voluntary

conduct in concert with his accomplice. Boney v. State, 880 N.E.2d 279, 293 (Ind. Ct.

App. 2008), trans. denied. “[B]ut presence at the scene coupled with other circumstances




                                            11
tending to show participation in the crime may be sufficient to sustain a guilty verdict.”

Rohr, 866 N.E.2d at 249.

       In this case, the trial court’s instructions, when considered as a whole and in

reference to each other, do not mislead the jury to believe that the State could meet its

burden of proof simply by presenting evidence of Huff’s presence during commission of

the offense and his failure to oppose the crime. Moreover, it was certainly not error for

the trial court to instruct the jury that it could consider Huff’s presence and failure to

oppose the crime together with the other factors listed in Instruction No. 9. See e.g.

Townsend v. State, 934 N.E.2d 118, 129-30 (Ind. Ct. App. 2010), trans. denied.

       However, we also observe that our courts “have ‘long disapproved’ instructions

that unduly ‘emphasize one particular evidentiary fact, witness, or phase of the case.’”

Fowler v. State, 900 N.E.2d 770, 773 (Ind. Ct. App. 2009) (quoting Ham v. State, 826

N.E.2d 640, 641-42 (Ind. 2005)). “‘An instruction as to what evidence warrants an

inference of guilty clearly invades the jury’s province.’” Id. (quoting Crawford v. State,

550 N.E.2d 759, 761 (Ind. 1990)).

       In Marks v. State, 864 N.E.2d 408 (Ind. Ct. App. 2007), our court concluded that

the quoted instruction below unnecessarily emphasized certain evidence and invited the

jury “‘to violate its obligation to consider all the evidence.’” Id. at 411-12 (quoting Ludy

v. State, 784 N.E.2d 459, 462 (Ind. 2003)).

       Evidence of the following can establish impairment:
       (1) the consumption of significant amounts of alcohol;
       (2) impaired attention and reflexes;
       (3) watery or bloodshot eyes;
       (4) the odor of alcoholic beverage on the breath;

                                              12
       (5) unsteady balance;
       (6) failure of field sobriety tests;
       (7) slurred speech

Id. at 410 (record citation omitted). See also Ham, 826 N.E.2d at 641 (holding that the

trial court erred when it instructed the jury that a defendant’s “refusal to submit to a

chemical test may be considered as evidence of intoxication”); Dill v. State, 741 N.E.2d

1230, 1232 (Ind. 2001) (holding that the trial court erred when it instructed the jury that

the defendant’s flight after the commission of a crime, although not proof of guilt, may

be considered as evidence of consciousness of guilt); Cox v. State, 512 N.E.2d 1099,

1101 (stating that “no instruction should single out certain portions of evidence”).

       In this case, Instructions Nos. 7 and 8 certainly emphasize certain evidence and

focus the jury’s attention on that evidence, which violates the jury’s obligation to

consider all the evidence. See Marks, 864 N.E.2d at 412. However, we will “disregard

any error that does not effect the substantial rights of a party.” Id. (citations omitted).

“Errors in the giving or refusing of instructions are harmless where a conviction is clearly

sustained by the evidence and the instruction would not likely have impacted the jury’s

verdict.” Id.

       As we discussed above, the evidence is more than sufficient to sustain Huff’s

conviction for burglary under a theory of accomplice liability. For this reason, we

conclude that the instructions would not likely have impacted the jury’s verdict, and that

tendering the erroneous instructions to the jury was harmless error.




                                              13
                                       Conclusion

      The trial court abused its discretion when it tendered Jury Instructions Nos. 7 and

8 to the jury. However, the evidence is more than sufficient to sustain Huff’s Class B

felony burglary conviction and the error in the instructions would not likely have

impacted the jury’s verdict. For these reasons, tendering the erroneous instructions to the

jury was harmless error. We therefore affirm Huff’s Class B felony burglary conviction.

      Affirmed.

CRONE, J., and BRADFORD, J., concur.




                                            14
