MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 24 2018, 7:27 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Livan A. Ruibal,                                         October 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-523
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         22D03-1610-F5-2103



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018                 Page 1 of 7
[1]   Following a jury trial, Livan A. Ruibal was convicted of burglary as a Level 5

      felony and theft as a Class A misdemeanor. On appeal, Ruibal argues that the

      State presented insufficient evidence to support his convictions.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Around 2:40 a.m. on October 4, 2016, a burglar alarm was tripped at a Verizon

      Wireless (Verizon) store located in a strip mall on Grant Line Road in New

      Albany. New Albany police officer Ronald Gaines was the first officer at the

      scene, arriving about two to three minutes after being dispatched. New Albany

      police officer Corey Schneider and others arrived on the scene seconds later.

      Officer Gaines drove past the store and parked near a wooded area. The other

      responding officers positioned themselves around the store to set up a

      perimeter.


[4]   Officer Gaines was positioned at the edge of the tree line and made eye contact

      with a male suspect, who then immediately fled, running towards the tree line.

      Officer Gaines exited his patrol car and ordered the suspect to stop, but the

      suspect kept running. Officer Gaines knew the area well and went around the

      wooded area in order to cut off a possible escape route to the east along some

      railroad tracks. While Officer Gaines was moving to his new position, another

      suspect ran behind him, approximately twenty yards away.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018   Page 2 of 7
[5]   In the meantime, as Officer Schneider walked along the back of the strip mall

      where the Verizon store was located, he observed a hole in the wall. Officer

      Schneider then saw a man, later identified as Ruibal, running out of the

      wooded area wearing black clothes, a black ski mask, and a black backpack.1

      Officer Schneider ordered Ruibal to the ground, but Ruibal turned around and

      started running back toward the wooded area. About halfway back, Ruibal

      gave up and stopped. He then followed Office Scnheider’s commands, first

      removing his backpack and setting it on the ground, and then lying on the

      ground himself. The ski mask and backpack were on the ground next to Ruibal

      when Officer Schneider took him into custody.


[6]   Ruibal was the first of four suspects discovered in the area 2 and taken into

      custody. Ruibal had a Florida identification on his person.3 In a nearby

      parking lot, Officer Gaines located a Ford Expedition with a Florida license

      plate. During a subsequent search of the vehicle, officers found receipts for

      tools, one being a receipt for a rotary hammer and a cut-off wheel and another

      for an angle grinder and some abrasive blades. Inside Ruibal’s backpack,

      officers discovered a sledgehammer, a reciprocating saw, and additional tools.




      1
       Ruibal was the individual who crossed behind Officer Gaines. Ruibal then encountered Officer Schneider.
      Officer Gaines could see what was transpiring between Officer Schneider and Ruibal. Officer Gaines waited
      until Ruibal was secured by Officer Schneider and then he continued to the railroad tracks to maintain the
      perimeter. He could hear other suspects moving through the wooded area.
      2
       A second suspect was found crawling on his stomach in a nearby ditch and two others hid in the wooded
      area until they were apprehended by a K9 officer.
      3
          The other three suspects were also from Florida.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018                 Page 3 of 7
      A second backpack identical to the one carried by Ruibal was located near the

      Verizon store and contained an angle grinder, hammer drill, a headlamp

      flashlight, gloves, and tape, among other things.


[7]   The hole in the back wall of the building was created by cutting and knocking

      out bricks and was large enough for a person to pass through.4 Looking

      through the hole, the officers could see that a safe inside the Verizon store had

      been cut and pried open. There were three electronic devices missing from the

      store that were later recovered from the backpack of one of the last suspects

      apprehended. The stolen property included two phones and a tablet, which

      collectively were valued at $1100-$1200. The store manager gave no one

      permission to enter the store that night or early morning and take property.


[8]   On October 6, 2016, the State charged Ruibal with Count I, burglary as a Level

      5 felony; Count II, criminal mischief as a Class A misdemeanor; Count III,

      resisting law enforcement as a Class A misdemeanor; and Count IV, theft as a

      Class A misdemeanor. A jury trial was held on January 2 and 3, 2018. At the

      start of the trial, the court granted the State’s motion to dismiss Count III. At

      the conclusion of the evidence, the jury found Ruibal guilty of the remaining

      counts. The trial court held a sentencing hearing on January 31, 2018. At that

      hearing, the trial court granted the State’s motion to dismiss Count II. The trial

      court then sentenced Ruibal to five years on Count I and assessed fines and




      4
       A second, smaller hole in the building was also discovered. It was believed that this hole was created in
      order to access an electrical outlet for operating the tools.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018                    Page 4 of 7
      costs on Count IV. Ruibal now appeals. Additional facts will be provided as

      necessary.


                                          Discussion & Decision


[9]   Ruibal argues that the State presented insufficient evidence to support his

      convictions. In reviewing a challenge to the sufficiency of the evidence, we

      neither reweigh the evidence nor judge the credibility of witnesses. McHenry v.

      State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only the evidence and the

      reasonable inferences supporting the verdict, our task is to determine whether

      there is substantial evidence of probative value from which a reasonable jury

      could find the defendant guilty beyond a reasonable doubt. Moore v. State, 652

      N.E.2d 53, 55 (Ind. 1995). Moreover, a conviction may be based purely on

      circumstantial evidence. Id.


              We will not disturb a verdict if the jury could reasonably infer
              that the defendant is guilty beyond a reasonable doubt from the
              circumstantial evidence presented. On appeal, the circumstantial
              evidence need not overcome every reasonable hypothesis of
              innocence. It is enough if an inference reasonably tending to
              support the verdict can be drawn from the circumstantial
              evidence.


      Id. (citations omitted). Although presence at a crime scene alone is insufficient

      to sustain a conviction, presence combined with other facts and circumstances,

      including the defendant’s course of conduct before, during, and after the

      offense, may raise a reasonable inference of guilt. Maul v. State, 731 N.E.2d

      438, 439 (Ind. 2000).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018   Page 5 of 7
[10]   To support Ruibal’s conviction for burglary as a Level 5 felony, the State was

       required to prove that Ruibal “broke and entered the building or structure of

       another person [Verizon], with intent to commit a felony or theft in it.” Ind.

       Code § 35-43-2-1. To support his conviction for theft as a Class A

       misdemeanor, the State was required to prove that Ruibal knowingly or

       intentionally exerted unauthorized control over the property of Verizon with

       intent to deprive Verizon of any part of the use or value of the property. See

       I.C. § 35-43-4-2(a)


[11]   Ruibal argues that the evidence is insufficient to sustain his convictions because

       the State’s evidence is entirely circumstantial and only tends to establish a

       suspicion of guilt. As set forth above, police were dispatched in response to a

       burglar alarm at a Verizon store in the middle of the night. Within minutes of

       the alarm being triggered, Ruibal, who was wearing black clothing and a black

       ski mask, was seen running in the area near the Verizon store. Upon

       encountering a police officer and being ordered to stop, Ruibal reversed

       directions and ran a short distance before surrendering.


[12]   Ruibal carried a black backpack that contained a reciprocating saw, a hammer,

       and other tools. A backpack identical to the one carried by Ruibal was

       discovered near the Verizon store and it too contained various tools. Electronic

       items taken from the Verizon store were found in a backpack carried by one of

       three other suspects who were found hiding or attempting to flee from the area.

       A hole in the back wall of the Verizon store, large enough for a person to pass

       through, had been created by cutting through brick. The safe inside the store

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018   Page 6 of 7
       had been cut and pried open. In addition, Ruibal carried a Florida

       identification card and a vehicle with Florida plates was located in a parking lot

       near the Verizon store. Receipts for several of the tools found in the backpacks

       were located in this truck.


[13]   Although the evidence proving that Ruibal committed burglary and theft was

       circumstantial, it was nevertheless substantial. Indeed, a reasonable inference

       can be drawn from the foregoing facts that Ruibal was one of four men who

       burglarized the Verizon store that morning. The State’s evidence was more

       than sufficient to support Ruibal’s convictions for Level 5 felony burglary and

       Class A misdemeanor theft.


[14]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-523 | October 24, 2018   Page 7 of 7
