MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              Jul 06 2015, 6:51 am
Memorandum Decision shall not be 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
Marielena Duerring                                        Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana

                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Elmer Bryant,                                             July 6, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A03-1411-CR-415
        v.                                                Appeal from the St. Joseph Superior
                                                          Court

State of Indiana,                                         The Honorable Elizabeth C. Hurley,
                                                          Judge
Appellee-Plaintiff.                                       Case No. 71D08-1401-FD-6




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015              Page 1 of 10
[1]   Elmer Bryant appeals his convictions for auto theft and theft as class D felonies.

      Bryant raises one issue, which we revise and restate as whether the evidence is

      sufficient to sustain his convictions. We affirm Bryant’s convictions but

      remand with instructions that the trial court attach his habitual offender

      enhancement to the sentence imposed on his conviction for auto theft as a class

      D felony.


                                         Facts and Procedural History

[2]   On December 9, 2013, Bryant went to a Goodwill Industries location in St.

      Joseph County, entered the store, wandered all over, asked an employee for

      money for diapers, and then exited the store. Bryant walked to the parking lot

      of the Goodwill, walked to the driver’s side of the vehicle of Terri Burks, an

      employee who worked in the administrative offices of Goodwill, and remained

      in the area around Burks’s vehicle for a period of time.1 Burks later exited the

      store, entered the driver’s side of her vehicle, and discovered that the interior of

      the vehicle was in disarray and that money was missing. Burks also noticed

      that the power locks of the vehicle were not functioning properly. Two Disney




      1
       A video recording of security camera footage admitted into evidence shows Bryant walked between two
      vehicles in the Goodwill parking lot, but due to Bryant’s location and the location of the camera, it is not
      possible to observe his actions while between the vehicles.
      The State argues that the time stamp on the Goodwill security video shows that Bryant was near the driver’s
      side of Burks’s vehicle for approximately three minutes, that a notation on the video shows the recording
      system only captures four frames per second, and thus that, while the time stamp for the exhibit DVD shows
      only a forty-second span between when Bryant approached Burks’s vehicle and when he returned to his
      vehicle, the time stamp appearing on the video itself demonstrates that Bryant was near the driver’s side of
      Burks’s vehicle for approximately three minutes. The time stamp on the video screen when Bryant walked
      between the two vehicles is approximately 14:26:21, the time stamp when he walked out from between the
      vehicles is about 14:27:06.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015                 Page 2 of 10
      World access cards, a postcard addressed to Burks’s mother, a coupon

      addressed to Burks, and a photograph of Burks’s son were missing from Burks’s

      vehicle. Burks went back inside the Goodwill store and had security videos

      pulled that covered the parking lot so that she could see who entered her car.

      The video recordings showed Bryant enter the Goodwill store and wander all

      over, exit the store and walk to the driver’s side of Burks’s vehicle, and then

      walk to another vehicle and drive away.


[3]   At around 7:00 a.m. on December 20, 2013, Aubrie Washington discovered

      that her Toyota Camry was not parked in her driveway. Washington had not

      lost her keys and had not given anyone permission to take her vehicle, and she

      called the police.


[4]   On January 2, 2014, South Bend Police Officer Theodore Robert received a

      report that there were possible stolen vehicles located at an address on South

      Bendix Drive, and he traveled to that location and observed vehicles, including

      Washington’s Toyota Camry, in the backyard of the residence. Officer Robert

      and other officers spoke with Bryant’s sister, who indicated that she and Bryant

      lived at the residence. She led the officers to the basement area where Bryant

      was sleeping, and the officers woke Bryant up and discovered a number of

      items in the basement, including numerous keys to vehicles, credit cards, and

      the Disney World access cards, photograph, and mail addressed to Burks which

      were missing from Burks’s vehicle. Bryant indicated to Officer Robert that the

      basement was his primary living area.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 3 of 10
[5]   Detective James Robert Cauffman interviewed Bryant at the police station, and

      Bryant stated that his address was the one on Bendix Drive where he was

      discovered sleeping; that his sister’s boyfriend Anthony moved in, started

      bringing stuff there, and was arrested; that he had told Anthony that he needed

      to move the cars and Anthony said he would; that he had driven the cars; and,

      when asked if Anthony had told him the cars were stolen, Bryant stated no but

      that he figured they were stolen. Bryant’s fingerprint was discovered on the

      inside glass of the driver’s side rear door of the Camry.


[6]   The State, in an amended charging information, charged Bryant with auto theft

      as a class D felony and three counts of theft as class D felonies, and the State

      also alleged that he was an habitual offender. At Bryant’s trial, the State

      presented the testimony of, among others, Burks, Omeria Sibanda, a

      caseworker at Goodwill, Washington, Officer Robert, and Detective Cauffman,

      a video and audio recording of Detective Cauffman’s interview of Bryant, video

      recordings of security camera footage obtained from the Goodwill store, and a

      number of photographs of the residence and basement area where Bryant was

      found sleeping. Sibanda testified that she recognized Bryant both in the

      courtroom and as a client, that Burks had asked her to review the security video

      from December 9, 2013 and she did so, that she recognized Bryant in the video,

      and that Bryant had asked for money for diapers while in the store that day.

      Detective Cauffman testified that Anthony Henderson was arrested earlier on

      January 2, 2014 for driving a stolen vehicle and that he had provided the South

      Bendix Drive address. The jury found Bryant guilty of auto theft and one count


      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 4 of 10
      of theft and not guilty on two of the theft charges. Bryant stipulated to the

      habitual offender enhancement. The court sentenced him to two years for his

      auto theft conviction, two years for his theft conviction, and two and one-half

      years for being an habitual offender, and ordered that he serve the sentences

      consecutively.


                                                   Discussion

[7]   The issue is whether the evidence is sufficient to sustain Bryant’s convictions.

      When reviewing claims of insufficiency of the evidence, we do not reweigh the

      evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

      817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the

      reasonable inferences therefrom that support the verdict. Id. We will affirm the

      conviction if there exists evidence of probative value from which a reasonable

      trier of fact could find the defendant guilty beyond a reasonable doubt. Id.


[8]   At the time of the offenses, Ind. Code § 35-43-4-2 provided in part that “[a]

      person who knowingly or intentionally exerts unauthorized control over

      property of another person, with intent to deprive the other person of any part

      of its value or use, commits theft, a Class D felony,” and Ind. Code § 35-43-4-

      2.5 provided in part that “[a] person who knowingly or intentionally exerts

      unauthorized control over the motor vehicle of another person, with intent to

      deprive the owner of . . . the vehicle’s value or use . . . commits auto theft, a

      Class D felony.”




      Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 5 of 10
[9]    Bryant argues that the State failed to demonstrate anything other than his mere

       presence at the scene, that there were two other adults associated with the

       Bendix Street address, Bryant’s sister and Henderson, and that Henderson had

       been identified by Bryant as the individual responsible for the stolen vehicles

       and was also apprehended by police driving a stolen vehicle. Bryant also argues

       that, while the evidence placed him at the scene of Burks’s vehicle, it did not

       demonstrate that he actually entered her vehicle.


[10]   The State argues that the evidence exhibited more than Bryant’s mere

       possession of the stolen Camry, that the vehicle was parked in the backyard of a

       residence he claimed as his domicile, he admitted to driving the vehicles on the

       property and figured they were stolen, he had told Henderson to take the

       vehicles off the property, and his fingerprint was found on an interior window

       surface of the Camry. The State also argues that Burks’s Disney cards were

       found in the basement where Bryant slept, that a Goodwill employee identified

       him, that a video recording shows him near Burks’s vehicle, and that, while

       Bryant’s exact movements are unclear because the camera view is obstructed,

       after he was hovering around the vehicle, Burks was missing cash and other

       items from her vehicle and the locks to her vehicle were no longer functioning

       properly.


[11]   Elements of offenses and identity may be established entirely by circumstantial

       evidence and the logical inferences drawn therefrom. Bustamante v. State, 557

       N.E.2d 1313, 1317 (Ind. 1990). Identification testimony need not necessarily

       be unequivocal to sustain a conviction. Heeter v. State, 661 N.E.2d 612, 616

       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 6 of 10
       (Ind. Ct. App. 1996). As with other sufficiency matters, we will not weigh the

       evidence or resolve questions of credibility when determining whether the

       identification evidence is sufficient to sustain a conviction. Id. Rather, we

       examine the evidence and the reasonable inferences therefrom that support the

       verdict. Id.


[12]   “While the mere unexplained possession of recently stolen property standing

       alone does not automatically support a conviction for theft, such possession is

       to be considered along with the other evidence in a case, such as how recent or

       distant in time was the possession from the moment the item was stolen, and

       what are the circumstances of the possession (say, possessing right next door as

       opposed to many miles away).” Holloway v. State, 983 N.E.2d 1175, 1179 (Ind.

       Ct. App. 2013) (internal quotation marks omitted) (citing Donovan v. State, 937

       N.E.2d 1223, 1226 (Ind. Ct. App. 2010) (citing Fortson v. State, 919 N.E.2d

       1136, 1143 (Ind. 2010)), trans. denied). The fact of possession and all the

       surrounding evidence about the possession must be assessed to determine

       whether any rational trier of fact could find the defendant guilty beyond a

       reasonable doubt. Id.; see also Girdler v. State, 932 N.E.2d 769, 773 (Ind. Ct.

       App. 2010) (noting that possession of recently stolen property is to be

       considered along with the other evidence in a case and the circumstances of the

       possession). The trier of fact must assess all of the evidence instead of focusing

       upon one piece of evidence, such as possession of recently stolen property. Id.

       (citing Donovan, 937 N.E.2d at 1226).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 7 of 10
[13]   Further, it is well settled that a defendant may be charged with and convicted of

       auto theft, even if the person was not the original thief, so long as the elements

       of auto theft are met—the knowing or intentional exercise of control over

       another’s vehicle, with intent to deprive the owner of the vehicle’s value or use.

       Girdler, 932 N.E.2d at 771; see also Donovan, 937 N.E.2d at 1226 (concluding the

       State was not required to show that the defendant had exclusive possession of

       the vehicle from the time of the theft to the time of his arrest but rather the trier

       of fact should look at all of the evidence to determine if the defendant is guilty

       of the offense beyond a reasonable doubt).


[14]   The jury heard testimony from Burks, Washington, Officer Robert, and

       Detective Cauffman, and a video and audio recording of Detective Cauffman’s

       interview of Bryant and video recordings of security camera footage from the

       Goodwill store and parking lot were displayed to the jury. The jury was able to

       assess the testimony and evidence in light of the statements of Bryant during his

       interview with Detective Cauffman.


[15]   With respect to Bryant’s auto theft conviction, the evidence most favorable to

       the conviction reveals that Washington’s Toyota Camry was discovered in the

       backyard of the residence where Bryant lived. Bryant stated during his

       interview with Detective Cauffman that he figured the cars on the property

       were stolen and that he had told his sister’s boyfriend he needed to move the

       cars. Bryant also stated that he had driven the cars, and his fingerprint was

       found on the inside glass of the driver’s side rear door of the Camry. The jury

       as fact-finder reasonably could have concluded that Bryant exerted

       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 8 of 10
       unauthorized control over the Camry with intent to deprive its owner of the

       vehicle’s value or use.


[16]   As to his theft conviction, Bryant does not dispute that two Disney World

       access cards belonging to Burks were discovered in the basement where he was

       sleeping. He lived at the residence with his sister, and he indicated to Officer

       Robert that the basement was his primary living area. The State presented

       security video recordings of the Goodwill parking lot which showed Bryant

       walk between the driver’s side of Burks’s vehicle and another vehicle, remain

       there for a period of time, and then walk to another vehicle and drive away.

       Later in the day, when Burks exited the store and went to her vehicle, she

       discovered the power locks were not functioning properly and that the interior

       of the vehicle was in disarray. Burks testified that the two Disney World access

       cards found in the basement where Bryant was sleeping were taken from her

       vehicle. A rational factfinder could have found that Bryant knowingly exerted

       unauthorized control over the property of Burks, with intent to deprive her of its

       value or use.


[17]   Based upon the record, we conclude that the State presented evidence of a

       probative nature from which a jury could find beyond a reasonable doubt that

       Bryant committed the crimes of auto theft and theft as charged.


[18]   While we affirm Bryant’s convictions, we sua sponte observe that the trial court

       erroneously entered a separate two-year sentence for the habitual offender

       finding to be served consecutive to the sentences for auto theft and theft. An


       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 9 of 10
       habitual offender finding does not constitute a separate crime, nor does it result

       in a separate sentence. See Ind. Code § 35-50-2-8 (2009) (subsequently amended

       by Pub. L. No. 158-2013, § 661 (eff. July 1, 2014); Pub. L. No. 168-2014, § 118

       (eff. July 1, 2014)). Rather, an habitual offender finding results in a sentence

       enhancement imposed upon the conviction of a subsequent felony. Hendrix v.

       State, 759 N.E.2d 1045, 1048 (Ind. 2001). The court’s sentencing order stated

       that Bryant entered a guilty plea as to the habitual offender count, entered a

       sentence of two and one-half years on the habitual offender count, and ordered

       the sentence to be served consecutive to Bryant’s other sentences. The abstract

       of judgment lists a separate sentence for the habitual offender count and does

       not attach the habitual offender enhancement to Bryant’s sentence for either

       auto theft or theft. We remand with instructions that the trial court vacate the

       separate sentence on the habitual offender enhancement and attach the

       enhancement to Bryant’s sentence for auto theft as a class D felony.


                                                    Conclusion

[19]   For the foregoing reasons, we affirm Bryant’s convictions for theft and auto

       theft as class D felonies and remand for the trial court to attach the habitual

       offender enhancement to Bryant’s sentence for auto theft as a class D felony.


[20]   Affirmed and remanded.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1411-CR-415 | July 6, 2015   Page 10 of 10
