MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              May 02 2019, 9:24 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James C. Spencer                                         Curtis T. Hill, Jr.
Dattilo Law Office                                       Attorney General of Indiana
Madison, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon McGaughey,                                       May 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1872
        v.                                               Appeal from the Jefferson Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J.
Appellee-Plaintiff                                       Hensley, Judge
                                                         Trial Court Cause No.
                                                         39D01-1802-F5-154



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019                     Page 1 of 11
[1]   Brandon McGaughey appeals his conviction for Level 5 Burglary,1 arguing that

      he was entitled to discharge, that the evidence was insufficient, and that the trial

      court erred by offering a certain jury instruction. Finding that he was not

      entitled to discharge, the evidence sufficient, and no error, we affirm.


                                                    Facts
[2]   In September 2017, McGaughey borrowed a truck from his friend Tyler

      Humbert. On Friday, November 24, 2017, Madison Police Officer Phillip

      Wimpee was driving to the scene of an incident on Hooten Boulevard when he

      saw a green Dodge truck pass him on the road. When he arrived, he spoke to

      the woman who had reported the incident; the woman said the truck had been

      involved in the incident. Officer Wimpee notified other officers, and they

      began searching for the truck.


[3]   Shortly thereafter, Officer Wimpee was dispatched regarding a suspicious

      vehicle in a driveway on Ross Street. When the officer arrived, he saw the

      green Dodge truck parked in the driveway. The officer saw three flat-screen

      televisions, a wooden jewelry box, and a youth compound archery bow in the

      truck’s bed. Justin Girdler, the property owner, told Officer Wimpee that the

      truck was blocking the driveway and that he did not want it there. Officer

      Wimpee decided to have the truck towed.




      1
          Ind. Code § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 2 of 11
[4]   Chandler Chevrolet, the tow company, sent Tim Caudle to tow the truck to its

      impound lot. The lot is secured by an eight-foot fence that has barbed wire and

      razor wire wrapped around it and an industrial lock and chain at the entrance.

      At 10:58 p.m., Caudle received a call from a person, later identified as

      McGaughey, asking about the truck. Caudle told McGaughey that he was not

      authorized to release the truck until Monday morning. McGaughey became

      upset and said he “wanted his ‘f**king’ truck.” Tr. Vol. II p. 127. Caudle told

      McGaughey that to retrieve the truck from the impound lot, McGaughey would

      need to show proof of ownership, a picture I.D., and valid insurance sometime

      between Monday and Friday.


[5]   The next day, Caudle went to the impound lot to see whether the items were

      still in the truck. Caudle saw that the truck was gone, driven through a section

      of the fence that had been removed with bolt cutters. Caudle also noticed that

      someone had tried to cut through the industrial chain at the entrance. Caudle

      reported the stolen truck to the police. The police found the truck at

      McGaughey’s residence. Caudle towed the truck back to the impound lot.


[6]   On February 8, 2018, the State charged McGaughey with Level 5 felony

      burglary and added an habitual offender enhancement. On March 1, 2018,

      McGaughey filed a motion for a speedy trial. The trial court granted his

      motion and set a jury trial for May 1, 2018. On April 19, 2018, the State filed a

      motion to continue because it had not yet received an analysis of McGaughey’s

      cell phone data and because it wanted more time to find and interview three



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 3 of 11
      possible witnesses who may have seen McGaughey in the truck on the night in

      question. The trial court granted the State’s motion.


[7]   On May 10, 2018, McGaughey filed a motion for discharge, which the trial

      court denied. A jury trial took place from June 5-8, 2018. When instructing the

      jury before deliberation, the trial court gave an instruction on accomplice

      liability that stated 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
              Burglary, has not been convicted of Burglary, or has been
              acquitted of the Burglary.


      Appellant’s App. Vol. V p. 9.


[8]   The jury found McGaughey guilty as charged. He admitted to being an

      habitual offender. On July 2, 2018, the trial court sentenced him to four years

      for his burglary conviction enhanced by four years for being an habitual

      offender, for an aggregate term of eight years. McGaughey now appeals.


                                   Discussion and Decision
                                   I. Motion for Discharge
[9]   McGaughey first argues that the trial court erred by denying his motion for

      discharge. Specifically, he argues that because the delay in bringing him to trial

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 4 of 11
       was attributed to the State, the trial court should have granted his motion for

       discharge because of the violation of his speedy trial request.


[10]   Indiana Criminal Rule 4(B)(1) provides:


               If any defendant held in jail on an indictment or an affidavit shall
               move for an early trial, he shall be discharged if not brought to
               trial within seventy (70) calendar days from the date of such
               motion, except where a continuance within said period is had on
               his motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar. . . .


       Criminal Rule 4(D) provides for a ninety-day extension under certain

       circumstances:


               If when application is made for discharge of a defendant under
               this rule, the court be satisfied that there is evidence for the state,
               which cannot then be had, that reasonable effort has been made
               to procure the same and there is just ground to believe that such
               evidence can be had within ninety (90) days, the cause may be
               continued, and the prisoner remanded or admitted to bail; and if
               he be not brought to trial by the state within such additional
               ninety (90) days, he shall then be discharged.


       “The determination of whether a particular delay in bringing a defendant to

       trial violates the speedy trial guarantee largely depends on the specific

       circumstances of the case.” Wheeler v. State, 662 N.E.2d 192, 193 (Ind. Ct. App.

       1996). We will reverse a trial court’s order concerning Indiana Criminal Rule

       4(B) and 4(D) if the trial court’s decision is clearly against the logic and effect of



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 5 of 11
       the facts and circumstances before the trial court. Small v. State, 112 N.E.3d

       738, 741 (Ind. Ct. App. 2018).


[11]   McGaughey requested a speedy trial on March 1, 2018; consequently, the

       seventy-day deadline expired on May 10, 2018. On April 19, 2018, the State

       moved for a continuance, which the trial court granted. McGaughey’s jury trial

       then took place on June 5, 2018, twenty-six days after the expiration of the

       seventy-day deadline.


[12]   McGaughey’s alibi was that he was visiting his parents at the time of the crime.

       In its motion to continue, the State identified two reasons for its request. First,

       it wanted an analysis of McGaughey’s cell phone records for the relevant time

       period, and second, it wanted to find and interview three potential witnesses

       who may have seen McGaughey in the truck on the night in question. Each of

       the State’s reasons for its request were relevant to disproving McGaughey’s alibi

       defense.


[13]   Further, the State’s motion fell squarely within the purview of Criminal Rule

       4(D). The State provided a timeline of its investigation of McGaughey’s cell

       phone. His cell phone was not discovered until February 2018. On February 5,

       2018, an officer applied for a search warrant for it. On April 4, 2018, the State

       received the cell phone records from the cell phone service provider. On April

       11, 2018, the State requested an in-depth analysis from the Indiana State Police.

       A detective received the service provider’s records that same day; in his

       affidavit, which was attached to the State’s motion, he testified that, in his


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 6 of 11
       experience, it would take approximately six to eight weeks to analyze the

       records. In short, the State showed that it had made a reasonable effort to

       procure the evidence and that it believed the evidence could be procured within

       ninety days. The State therefore showed that it met the requirements of

       Criminal Rule 4(D). Accordingly, the trial court did not err by denying

       McGaughey’s motion for discharge.


                              II. Sufficiency of the Evidence
[14]   McGaughey next argues that the evidence was insufficient to support his

       conviction for burglary. When reviewing the sufficiency of the evidence to

       support a conviction, we must consider only the probative evidence and

       reasonable inferences supporting the conviction and will neither assess witness

       credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). We will affirm unless no reasonable factfinder could find the elements of

       the crime proved beyond a reasonable doubt. Id.


[15]   To convict McGaughey of burglary, the State was required to prove beyond a

       reasonable doubt that McGaughey broke and entered the building or structure

       of another person with intent to commit a felony or theft in it. I.C. § 35-43-2-1.

       Theft occurs when a person “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[.]” Ind. Code § 35-43-4-2.


[16]   A burglar’s intent to commit a specific felony at the time of the breaking and

       entering may be inferred from the circumstances. Oster v. State, 992 N.E.2d 871,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 7 of 11
       875-76 (Ind. Ct. App. 2013). Circumstantial evidence alone is sufficient to

       sustain a burglary conviction. Id. at 876. Although evidence of intent does not

       need to be insurmountable, there must be a “specific fact that provides a solid

       basis to support a reasonable inference that the defendant had the specific intent

       to commit a felony[.]” Id. (quotation marks and citation omitted).


[17]   McGaughey first argues that because he had Humbert’s permission to possess

       and use the truck, he did not commit theft—because he did not exert

       unauthorized control over the truck—and if he did not commit theft, he could

       not have committed burglary. Whether Humbert allowed McGaughey to

       possess and use the truck is irrelevant. Once the truck was in the impound lot,

       no one could take the truck without following the tow company’s procedure,

       which meant that the property owner had to come to the tow company’s office

       between Monday and Friday with proof of ownership, a picture I.D., and valid

       insurance. Because Humbert was the truck’s owner, the tow company could

       release the vehicle only to him.


[18]   McGaughey also argues that the evidence established that he was with his

       parents at the time of the crime. The record shows that Caudle received a call

       from a person, later identified as McGaughey, asking about the truck at 10:58

       p.m. on the night it was towed. Caudle told McGaughey that he was not

       authorized to release the truck until Monday morning, and McGaughey

       became upset and said he “wanted his ‘f**king’ truck.” Tr. Vol. II p. 127.

       After Caudle reported the truck stolen from the impound lot, the police found it

       again at McGaughey’s residence. There was also evidence presented that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 8 of 11
       during the relevant time period, McGaughey’s cell phone did not connect with

       any cell towers that cover the area of his parents’ residence, which is where he

       said he was the night of the crime. His argument amounts to a request that we

       reweigh the evidence, which we decline.


[19]   McGaughey also alleges that because one witness testified that McGaughey

       would allow others to use the truck and his phone, it was possible that some

       unknown person was using the truck when it was impounded, became

       concerned about McGaughey’s possible reaction to the truck being impounded,

       and removed the truck from the impound lot. Again, this argument is simply

       an invitation to reweigh the evidence, which we may not do. The evidence was

       sufficient to support McGaughey’s conviction.


                                        III. Jury Instruction
[20]   Finally, McGaughey contends that the trial court erred by instructing the jury

       on accomplice liability because he had not been charged as an accomplice and

       there was no evidence presented as to what acts he had committed to make him

       an accomplice or with whom he had acted.


[21]   When evaluating jury instructions on appeal, we consider whether the tendered

       instruction correctly stated the law, whether there is evidence in the record to

       support giving the instruction, and whether the substance of the proffered

       instruction is covered by other instructions. Treadway v. State, 924 N.E.2d 621,

       636 (Ind. 2010). We will reverse a conviction only if the appellant

       demonstrates that the instruction error prejudices his substantial rights. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 9 of 11
[22]   “In Indiana, the responsibility of a principal and an accomplice is the same.”

       Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006). An instruction on accomplice

       liability is proper where there is some evidence that a second party was involved

       in the crime. Id. A person may be charged as a principal yet convicted on

       proof that he aided another in the commission of a crime. Id. Due process does

       not require the State to give a defendant some pretrial notice that it intended to

       try him as an accessory rather than as a principal. Id.


[23]   Although the State did not charge McGaughey as an accomplice, the State was

       not precluded from pursing an accomplice liability theory during trial because

       there was evidence against McGaughey as the principal actor and there was

       some evidence that a second party was involved in the crime. Regarding the

       evidence of McGaughey as the principal actor, after the truck was towed,

       McGaughey called Caudle and demanded “his ‘f**king’ truck.” Tr. Vol. II p.

       127. Caudle told McGaughey how the truck could be retrieved, yet the next

       morning, the truck was missing from the impound lot. It was then found at

       McGaughey’s residence. McGaughey’s alibi that he was at his parents’ house

       when the truck was taken was contradicted by his cell phone records.


[24]   Regarding evidence that there was a second party involved in the crime, Caudle

       testified that the fact that the top of the truck did not have scratches on it after it

       was found showed “that somebody had to help hold that razor wire and barb

       wire up while the truck drove through the cut chain link opening.” Tr. Vol. II

       p. 105. In other words, there was evidence that a second person was involved

       because the way in which the truck was removed required one person to hold

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 10 of 11
       up the razor wire while another person drove the truck through the opening.

       Because of this evidence, the trial court did not err in giving the instruction on

       accomplice liability.


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


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019   Page 11 of 11
