                                                                          FILED
                                                                  May 25 2017, 10:30 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana                                         Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Caleb Sullivan,                                           May 25, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          52A02-1610-CR-2499
        v.                                                Appeal from the Miami Circuit
                                                          Court
State of Indiana,                                         The Honorable Timothy P. Spahr,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          52C01-1509-F2-35



Baker, Judge.




Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017                    Page 1 of 11
[1]   Caleb Sullivan appeals his convictions for Level 4 Felony Burglary,1 Level 6

      Felony Conspiracy to Commit Dealing in a Controlled Substance, 2 and Level 6

      Felony Theft.3 Sullivan raises two arguments: (1) there is insufficient evidence

      supporting his convictions for burglary and theft; and (2) his convictions for

      conspiracy to commit dealing in a controlled substance and theft are barred by

      the prohibition against double jeopardy. Finding sufficient evidence and no

      double jeopardy violation, we affirm.


                                                       Facts
[2]   On the night of September 23, 2015, Sullivan was staying in Peru with his

      friend, Wally Taylor, and Taylor’s girlfriend, Jennifer Rairigh. Sullivan and

      Taylor were regular drug users and wanted to get high. Sullivan brought up the

      idea of robbing a nursing home where he used to work. Sullivan knew how to

      gain access to the nursing home and knew that there were narcotics inside.

      Sullivan and Taylor agreed to steal narcotics from the nursing facility and then

      sell those drugs for money to buy heroin.


[3]   Around 1:00 a.m. on September 24, 2015, Taylor and Sullivan took Rairigh’s

      minivan and drove to the Aperion Health Care nursing home facility. Sullivan




      1
          Ind. Code § 35-43-2-1.
      2
       I.C. 35-43-4-2(a)(1). This statute was amended in the most recent legislative session. The amendments are
      not relevant to this case, but we cite to the version of the statute that was in effect at the time Sullivan
      committed the offense.
      3
          Ind. Code § 35-41-5-2.


      Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017                          Page 2 of 11
      exited the van to see who was working that night; when he returned, he told

      Taylor that his old boss, Doreen Brunner, was on duty. Sullivan donned a

      mask and blue surgical gloves, took a black BB-gun from the minivan, and

      entered the Aperion facility from the side entrance. Taylor waited in the

      minivan in the parking lot.


[4]   Inside, Brunner looked up and saw a masked man approach the nurse’s station

      in the common dining room area. Sullivan appeared to be holding a gun at his

      waist and ordered Brunner to “open the box.” Tr. Vol. II p. 150-51. He flipped

      open a drawer on the cart where the narcotics were stored and told Brunner,

      “Hurry up. I’m not playing.” Id. at 151. Brunner noticed that Sullivan was

      trying to disguise his voice. She unlocked the box and placed blister packs of

      narcotics into a bag that Sullivan handed her. Sullivan then asked for the code

      he could use to exit the facility, which she provided. 4 Sullivan ran to the door,

      punched in the code, and exited the building.


[5]   Brunner immediately called 911. Although Sullivan had been wearing a mask,

      Brunner recognized him from his gait and general body build. She also

      believed it was him because he knew the security code to enter the facility,

      knew that he needed a different code to exit the facility, and knew where the

      narcotics box was located.




      4
       The code to exit the facility is changed frequently to ensure that residents are not able to make unauthorized
      exits from the building.

      Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017                           Page 3 of 11
[6]   Following the burglary, Sullivan returned to the minivan, which Taylor drove

      back to Rairigh’s home. Rairigh was angry because she had been trying to

      contact Taylor and he had not responded, so she refused to let the men inside

      the house. Sullivan and Taylor walked to an abandoned house a couple of

      blocks away, where they removed the medication from the blister packs. In

      total, Sullivan had taken 642 pills of controlled substances, including Vicodin,

      Xanax, Percocet, Ultram, and Ambien. Sullivan and Taylor each took half of

      the pills. After they parted ways, Taylor sold sixty to seventy of the pills for a

      total of $400, or about $5 apiece.


[7]   Police eventually found and arrested Sullivan. On September 30, 2015, the

      State charged Sullivan with multiple offenses. After a later amendment,

      Sullivan was ultimately charged with the following crimes: Level 4 felony

      burglary, Level 5 felony robbery, Level 6 felony residential entry, Level 6 felony

      conspiracy to commit dealing in a controlled substance, Level 6 felony theft,

      and Class A misdemeanor possession of a controlled substance.


[8]   On August 31, 2016, following a trial, a jury found Sullivan guilty as charged.

      The trial court vacated the residential entry conviction to avoid double jeopardy

      concerns. On September 30, 2016, following a sentencing hearing, the trial

      court sentenced Sullivan to the following concurrent terms: eight years, with

      two years suspended to probation, for Level 4 felony burglary; eight years, with

      two years suspended to probation, for Level 5 felony robbery; one year and 182

      days for Level 6 felony conspiracy; one year and 182 days for Level 6 felony



      Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017    Page 4 of 11
       theft; and one year for Class A misdemeanor possession of a controlled

       substance. Sullivan now appeals.


                                     Discussion and Decision
                                               I. Sufficiency
[9]    Sullivan argues that the evidence is insufficient to support his convictions for

       burglary and theft. When reviewing a claim of insufficient evidence, we will

       consider only the evidence and reasonable inferences that support the

       conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm

       if, based on the evidence and inferences, a reasonable jury could have found

       the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009).


                                                A. Burglary
[10]   To convict Sullivan of Level 4 felony burglary, the State was required to prove

       beyond a reasonable doubt that he broke and entered a building or structure

       that is a dwelling of another person with the intent to commit a felony or theft

       in it. I.C. § 35-43-2-1(1). Sullivan argues that there is insufficient evidence

       establishing that the common dining room area of the nursing home is a

       dwelling. “Dwelling” is defined as “a building, structure, or other enclosed

       space, permanent or temporary, movable or fixed, that is a person’s home or

       place of lodging.” Ind. Code § 35-31-5.2-107.




       Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017    Page 5 of 11
[11]   The legislature has imposed an increased penalty for burglarizing a dwelling

       “because of the potential danger to the probable occupants” of the dwelling.

       Howell v. State, 53 N.E.3d 546, 549 (Ind. Ct. App. 2016), trans. denied. Here,

       there were at least twenty-two residents present in their rooms near the

       common dining area where the burglary occurred. In fact, the residents’ rooms

       were so close to the area that Brunner worried that one of them might awaken

       during the burglary and be in danger, which is the very harm the legislature

       sought to prevent.


[12]   Sullivan directs our attention to Robertson v. State, 765 N.E.2d 138 (Ind. 2002),

       in support of his argument. In Robertson, our Supreme Court interpreted the

       statute prohibiting the unlicensed possession of a handgun outside of one’s

       dwelling. In that case, the defendant had been convicted of that crime when he

       walked into the common hallway area of his apartment building while carrying

       an unlicensed handgun. Our Supreme Court ultimately concluded “that

       ‘dwelling’ does not include the common areas serving a person’s apartment”

       because “the legislature cannot have intended to permit the carrying of

       unlicensed handguns in all apartment common areas that a person may claim

       as part of their place of lodging.” Id. at 139-40.


[13]   Sullivan argues that the common dining area in the nursing home facility is

       analogous to the common hallway area in the apartment building in Robertson.

       We disagree. While the nursing home facility contains private rooms that

       house one or two residents, those rooms do not constitute the entirety of the

       residents’ living area. The residents eat all their meals and do all their activities

       Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017     Page 6 of 11
       in the dining room area; Brunner testified that “[e]verything they do is out

       there” and agreed that the area is “part of their living quarters[.]” Tr. p. 160.


[14]   We question the applicability of the Robertson holding to the definition of

       “dwelling” in the context of the burglary statute, but we leave that question for

       another day, as we find this nursing home easily distinguishable from an

       apartment building. Here, it is apparent that the common dining area is a part

       of the residents’ daily lives. They “dwell” in that area as much as they “dwell”

       in their private rooms. Consequently, we find sufficient evidence supporting

       the jury’s conclusion that the nursing home constitutes a dwelling and

       Sullivan’s conviction for Level 4 burglary.


                                                   B. Theft
[15]   To convict Sullivan of Level 6 felony theft, the State was required to prove

       beyond a reasonable doubt that he knowingly or intentionally exerted

       unauthorized control over the nursing home’s medication, which had a fair

       market value of at least $750, with the intent to deprive the nursing home of any

       part of the medication’s value or use. I.C.§ 35-43-4-2. Sullivan argues that

       there is insufficient evidence establishing the value of the medication.


[16]   At trial, Taylor testified that the two men divided up the 642 stolen pills.

       Taylor sold sixty to seventy pills out of his share for a total of approximately

       $400. He testified that the pills were worth about $5 each. Consequently, the

       total value of all the stolen pills would exceed $3,000.



       Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017    Page 7 of 11
[17]   Sullivan argues that evidence of the black market value of the pills is improper.

       Instead, Sullivan contends that the State should have introduced evidence of the

       value of the pills in the commercial market—i.e., pharmacy value. Sullivan

       notes that “[t]he issue of whether the black market value of controlled

       substances can be used for purposes of proving felony theft has not been

       addressed in Indiana.” Appellant’s Br. p. 11.


[18]   In support of his argument, Sullivan directs our attention to Ridenour v. Furness,

       546 N.E.2d 322 (Ind. Ct. App. 1989), in which this Court reviewed the

       computation of damages for the illegal trapping of protected sport fish by

       commercial fishermen in Lake Michigan. Damages were to be calculated by

       measuring the “fair market value of the property at the time of loss.” Id. at 325.

       In that case, however, there was no fair market value “because it is illegal in

       Indiana to sell the various species of sport fish destroyed here.” Id. at 325 n.1.

       According to Sullivan, this aside in Ridenour establishes that the black market

       value of property cannot be used to establish the property’s fair market value.


[19]   The Ridenour Court observed that although there was no commercial market for

       the fish, the value of the fish could be calculated by looking at a number of

       other factors. Id. at 326-27 (examining, among other things, actual hatchery

       production costs, mortality rate of the fish, size of the fish, cost of feeding the

       fish, etc.). We see nothing in Ridenour—or any other relevant caselaw—that

       would require a factfinder to value an item based only on the commercial

       market value, even where that value is readily ascertainable.



       Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017     Page 8 of 11
[20]   This Court has explained that “[t]he fair market value is ‘the price at which

       property would change hands between a willing buyer and seller, neither being

       under any compulsion to consummate the sale.’” Pitcavage v. Pitcavage, 11

       N.E.3d 547, 564 (Ind. Ct. App. 2014) (quoting City of Carmel v. Leeper Elec.

       Servs., Inc., 805 N.E.2d 389, 395 (Ind. Ct. App. 2004)). In this case, the State

       presented evidence that willing buyers paid $5 per pill. We see no reason to

       question this evidence simply because it is evidence of the black market value.

       Therefore, we find the evidence sufficient to support Sullivan’s theft conviction.


                                        II. Double Jeopardy
[21]   Finally, Sullivan argues that his convictions for conspiracy to commit dealing in

       a controlled substance and theft violate the prohibition against double jeopardy.

       The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” Ind. Constitution, Art. I, § 14. Two or more

       offenses are the “same offense” if the essential elements of one offense establish

       the essential elements of another offense with respect to either the statutory

       elements or the actual evidence used to convict. Richardson v. State, 717 N.E.2d

       32, 49 (Ind. 1999). We apply a de novo standard of review to double jeopardy

       claims. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012).


[22]   Sullivan argues that these two convictions violate the actual evidence test of our

       prohibition against double jeopardy. As long as each conviction requires proof

       of at least one unique evidentiary fact, the convictions are not barred by double

       jeopardy. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).


       Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017   Page 9 of 11
[23]   To convict Sullivan of conspiracy, the State was required to prove that he and

       Taylor agreed to commit the crime of dealing in a controlled substance and that

       Sullivan and/or Taylor committed an overt act in furtherance of the agreement.

       I.C. § 35-41-5-2. The crime of conspiracy is complete upon the agreement and

       the performance of the overt act. E.g., M.T.V. v. State, 66 N.E.3d 960, 965 (Ind.

       Ct. App. 2016), trans. denied. Initially, we note that Sullivan and Taylor agreed

       to go to the nursing home facility to steal the narcotics pills and then to sell

       those pills. They completed any number of actions that could be considered

       overt acts in furtherance of that agreement: they borrowed the minivan, they

       drove to the nursing home facility, Sullivan left the vehicle to see which

       employee was on duty and then returned, Sullivan put on a mask and gloves,

       Sullivan retrieved a BB-gun, and Sullivan entered the entry code into the

       keypad and entered the building. The conspiracy was complete as soon as any

       one of these overt acts was performed.


[24]   We must look, however, at how the jury was instructed to consider the

       evidence. In this case, the final jury instruction informed the jury that to

       convict Sullivan of conspiracy, it must find that either Sullivan or Taylor

       “commit[ed] the act of theft” at the nursing home facility. Appellant’s Supp.

       App. Vol. II p. 11.


[25]   At first glance, it seems as though the way in which the State tried this case has

       led to a double jeopardy violation, because the State needed to prove that

       Sullivan committed the theft to prove that he performed the overt act. In this

       case, however, the State charged the theft offense as a Level 6 felony, meaning

       Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017    Page 10 of 11
       that, to prove that this offense occurred, it needed to take the additional step of

       proving that the stolen property valued at least $750—evidence that is not

       needed to establish the overt act element of the conspiracy charge. Because this

       constitutes a distinct piece of evidence that was wholly separate from the

       conspiracy charge, and the conspiracy charge required proof of the agreement

       between Taylor and Sullivan, the actual evidence used to support these two

       convictions was not the same. Consequently, there is no double jeopardy

       violation.


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


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 52A02-1610-CR-2499 | May 25, 2017   Page 11 of 11
