ATTORNEYS FOR APPELLANT                            ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell                                 Gregory F. Zoeller
Joel M. Schumm                                     Attorney General of Indiana
Indianapolis, Indiana
                                                   Aaron J. Spolarich
                                                   Ellen H. Meilaender
                                                   Deputy Attorneys General
                                                   Indianapolis, Indiana




                                         In the
                       Indiana Supreme Court                                     Apr 29 2014, 12:18 pm



                                  No. 71S04-1308-CR-535

MARTIN MEEHAN,
                                                           Appellant (Defendant below),

                                              v.

STATE OF INDIANA,
                                                           Appellee (Plaintiff below).


             Appeal from the St. Joseph Superior Court, No. 71D02-1112-FC-286
                          The Honorable John M. Marnocha, Judge


     On Petition to Transfer from the Indiana Court of Appeals, No. 71A04-1209-CR-453



                                       April 29, 2014

David, Justice.


       At Martin Meehan’s trial for class C felony burglary, the State offered into evidence,
among other things, a glove containing Meehan’s DNA recovered at the scene of the burglary.
Meehan was subsequently convicted of class C felony burglary, found to be a habitual offender,
and sentenced to a total term of thirteen years in the Indiana Department of Correction. On
appeal, he challenges the sufficiency of the evidence underlying his conviction. Finding that
Meehan’s jury had before it substantial evidence of probative value from which it could have
reasonably inferred that Meehan was guilty of burglary beyond a reasonable doubt, we affirm his
conviction.


                                 Facts and Procedural History


       On the afternoon of May 2, 2011, employee Scott Floyd closed and locked an overhead
door that opened to a loading dock at the building housing O.J.S. Building Services, a
mechanical contracting business.     When he arrived at work early the next morning, Floyd
observed that a panel of the overhead door had been removed. Entering the building through a
locked access door, Floyd discovered two interior doors off their hinges, including the door
connecting the loading dock to the offices. Floyd exited the building and called police.


       South Bend Police Department Officer Kevin Gibbons was dispatched to the scene.
Upon arrival, Officer Gibbons walked through the building with Floyd. Immediately inside of
the overhead door, the men found a black glove. Floyd would later testify that the glove was not
present when he locked the building on May 2.          From the scene, police also collected a
screwdriver and a footwear print from one of the interior doors. Among other things, laptops and
approximately $1200 in cash were missing.


       Subsequently, the glove and the screwdriver were tested for the presence of DNA.
Although an insufficient amount of DNA for testing was found on the screwdriver, a stain on the
glove tested positive for the presence of saliva or mucus on both the inside and outside of the
glove. Entered into a database, the DNA from the glove matched Martin Meehan’s DNA. No
other person’s DNA was found on the glove.


       On December 7, 2011, South Bend Police Department Detective Chris Slager spotted
Meehan standing with a group of men on a street corner, recognized him from a crime
information bulletin, and took him into custody. At the time, Meehan possessed bolt cutters, a


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pocket knife, a screwdriver, a chisel, and two Allen key sets. During an interview with police,
Meehan denied any involvement with the O.J.S. burglary. Following the interview, he was
placed under arrest. Police collected a DNA swab from Meehan, and the DNA from that swab
matched the DNA from the glove found inside the O.J.S. building.


       The State charged Meehan with class C felony burglary1 and sought a habitual offender
enhancement.2 Following a jury trial, Meehan was found guilty of the burglary charge. After
Meehan waived his right to a jury trial for the habitual offender enhancement, the trial court
found him to be a habitual offender. At his sentencing hearing, the trial court sentenced Meehan
to five years in the Indiana Department of Correction for the burglary, enhanced by eight years
for the habitual offender finding.


       On appeal, Meehan argued that the State failed to produce sufficient evidence to establish
beyond a reasonable doubt that he committed the O.J.S. burglary. 3      4
                                                                              Specifically, Meehan
contended that it was unreasonable to infer that he committed the burglary “simply because a
glove containing his DNA was found at the scene of the crime.”              (Appellant’s Br. at 5.)
Concluding that “there was no evidence that would support an inference that Meehan’s DNA
was found on the glove because he handled it during the burglary, as opposed to some other


1
  Ind. Code § 35-43-2-1 (2008).
2
  Ind. Code § 35-50-2-8 (2008).
3
  Meehan also claimed that the trial court erred by ordering his burglary sentence, enhanced by
an eight-year habitual offender finding, to run consecutive to his burglary sentence in case
number 71D02-0702-FC-37, which was enhanced by a six-year habitual offender finding. The
State conceded that remand is appropriate to order the habitual offender enhancement in this case
and the remaining habitual offender enhancement in FC-37 to be served concurrently, as
“[u]nder Indiana law, a trial court cannot order consecutive habitual offender sentences.”
Breaston v. State, 907 N.E.2d 992, 994 (Ind. 2009).
4
  Third and finally, Meehan argued that the trial court erred by allowing the State to file a
habitual offender charge after the deadline then set forth in Ind. Code § 35-34-1-5(e) (2008)
(now Ind. Code § 35-34-1-5(e) (Supp. 2013)). However, we agree with the State that pursuant to
Ind. Appellate Rule 9(F)(5), by failing to present on appeal a “complete record of the issues for
which an appellant claims error,” specifically a transcript from the hearing on the State’s motion
to amend the charging information, Meehan waived the right to appellate review of this issue.
Miller v. State, 753 N.E.2d 1284, 1287 (Ind. 2001).

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time,” the Court of Appeals found that the burglary verdict was based on speculation and
reversed Meehan’s conviction. Meehan v. State, 986 N.E.2d 371, 372 (Ind. Ct. App. 2013). We
granted transfer, thereby vacating the opinion below. Ind. Appellate Rule 58(A).


                                      Standard of Review

       When reviewing a claim of insufficient evidence to sustain a conviction, we

               consider only the probative evidence and reasonable inferences
               supporting the verdict. It is the fact-finder’s role, not that of
               appellate courts, to assess witness credibility and weigh the
               evidence to determine whether it is sufficient to support a
               conviction. . . . Appellate courts affirm the conviction unless no
               reasonable fact-finder could find the elements of the crime proven
               beyond a reasonable doubt. It is therefore not necessary that the
               evidence overcome every reasonable hypothesis of innocence.
               [T]he evidence is sufficient if an inference may reasonably be
               drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (internal citations omitted). “A reasonable
inference of guilt must be more than a mere suspicion, conjecture, conclusion, guess,
opportunity, or scintilla.” Mediate v. State, 498 N.E.2d 391, 393 (Ind. 1986).


       This standard requires us to determine “whether the facts favorable to the verdict
represent substantial evidence probative of the elements” of burglary. Drane, 867 N.E.2d at 147.
To convict Meehan of class C felony burglary under Ind. Code § 35-43-2-1, the State must have
proven, beyond a reasonable doubt, that Meehan broke into and entered the O.J.S. building with
the intent to commit a felony within the building. Here, the State charged theft as the underlying
felony.5




5
  Ind. Code § 35-43-4-2(a) (2008) provides, in pertinent 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.”

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   Glove Found at Burglary Scene Sufficient Evidence to Support Meehan’s Conviction


        Arguing that a glove is “an item easily lost, found, borrowed or stolen,” Meehan claims
there was insufficient evidence for the jury to find beyond a reasonable doubt that he committed
the O.J.S. burglary. (Appellant’s Br. at 8–9.) Although the glove containing his DNA was the
only evidence recovered that directly tied Meehan to the burglary, the circumstances under
which the glove was discovered, the glove itself, and Meehan’s possession of tools potentially
used to commit burglary are probative evidence from which an inference reasonably tending to
support the guilty verdict could have been drawn.


        In Shuemak v. State, we held that a finger, palm, or bare footprint found in a place where
a crime was committed may be sufficient proof of the defendant’s identity. 254 Ind. 117, 119,
258 N.E.2d 158, 159 (1970).       We also consider the defendant’s legitimate access to the
fingerprinted object, the relocation of the object from its point of origin, and the defendant’s
authorization to enter the dwelling or structure. Mediate, 498 N.E.2d at 393. It follows that


               [t]he preclusion of legitimate access to the object supports the
               inference that the fingerprints were not made in a lawful manner.
               Whether the fingerprinted object was located in a public or private
               place is an important factor. When [the] defendant’s fingerprint is
               found on an object which was never accessible to the public a
               reasonable inference arises that the print was made during the
               crime.

Id. at 394.


        Like a fingerprint, DNA is a marker of identity. Therefore, Meehan’s jury could have
found the glove containing Meehan’s DNA, together with other evidence offered by the State, to
be sufficient proof of Meehan’s identity as the burglar. Discovered near the damaged overhead
door, the glove was located mere steps from the burglar’s point of entry. “A fingerprint found at
the point of entry is accorded substantial weight because of its direct relationship to the element
of illegal entry.” Id. Thus, the jury could reasonably have inferred that the glove was dropped


                                                5
by Meehan upon entering or exiting the O.J.S. building through the panel of the overhead door
he had removed.


       Moreover, there was no more obvious explanation for the glove’s presence at the scene.
The glove had not been there when Floyd locked the building the previous night, O.J.S. had no
customer retail component, and Meehan had neither an employment nor business relationship
with O.J.S. Given Meehan’s lack of legitimate access or authorization to enter the O.J.S.
building, the jury could have reasonably inferred that Meehan left the glove in the course of
committing the burglary.


       Yet Meehan contends that “while one may reasonably infer that a fingerprint left at the
scene of a burglary establishes the identity of the burglar, the same cannot be said of DNA found
in or on a glove located at the scene.” (Appellant’s Br. at 9.) According to Meehan, this is
because “DNA can be transferred to an item very easily,” thus making it possible that “the glove
found at the scene could have been left by any person who found, borrowed or stole it from
[him].” (Appellant’s Br. at 9.) To this point, we agree. Or, as he also argues, Meehan “could
have very easily transferred his DNA to another person’s glove at some point prior to the
burglary by a casual touching.” (Appellant’s Br. at 9.) Again, we agree.


       But the Court of Appeals reasoned that “[w]ere we to affirm [Meehan’s conviction], we
would be creating a precedent that would make it relatively easy for criminals to frame other
individuals; all they would need to do is obtain an object with someone else’s DNA and leave it
at the crime scene.” Meehan, 986 N.E.2d at 376. Here is where we disagree. The existence of
the possibility of being “framed” does not amount to a lack of substantial evidence of probative
value from which the jury could reasonably infer that Meehan committed the burglary. In
reviewing sufficiency claims, we look at what evidence was presented to the jury, not at what
evidence was not presented.


       Our precedent requires us to look at all the evidence presented in a light most favorable to
the verdict.   Given the presence of Meehan’s DNA on the glove, Officer Gibbons’s


                                                6
uncontroverted testimony that the glove was discovered only steps from the point of entry of a
secured building, Meehan’s lack of authorization to enter to the O.J.S. building, and Meehan’s
possession of potential burglary tools, we conclude that it was reasonable for the jury to infer
that Meehan’s DNA was on the glove because he was wearing it at the time of the burglary. In
the process, the jury necessarily rejected alternative explanations for the presence of both
Meehan’s DNA and the glove.


       Meehan also argues that “[t]he [S]tate’s lack of evidence is especially disturbing where
police recovered a viable footwear print from a broken door inside the premises and failed to
make any comparisons” to his footwear. (Appellant’s Br. at 9.) Whether such a comparison
may have helped either side, we will never know. Under Drane, what is required to sustain the
verdict is a reasonable inference of guilt drawn from probative evidence. A glove containing
Meehan’s DNA discovered at the scene of a burglary just steps from the point of entry and in an
area Meehan had no right to be, together with his possession of potential burglary tools, is
sufficient evidence to support his conviction for burglary.


                                           Conclusion


       Because there was substantial evidence of probative value from which the jury could
reasonably infer that Meehan was guilty of burglary beyond a reasonable doubt, we will not
disturb the jury’s verdict. Additionally, because consecutive habitual offender enhancements are
prohibited, we remand to the trial court with instructions to order the habitual offender
enhancement in this case be served concurrent to the remaining habitual offender enhancement
in FC-37.


Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.




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