                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                  Jun 12 2012, 9:14 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                              CLERK
                                                                        of the supreme court,
                                                                        court of appeals and
                                                                               tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                               GREGORY F. ZOELLER
Frischkorn Law LLC                               Attorney General of Indiana
Fortville, Indiana
                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JACK ARTHUR GRIFFIN,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 30A05-1112-CR-689
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HANCOCK SUPERIOR COURT
                           The Honorable Terry K. Snow, Judge
                             Cause No. 30D01-1102-FB-199



                                       June 12, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Jack Arthur Griffin appeals his conviction and sentence for

Burglary,1 a class B felony. Specifically, Griffin argues that the evidence was insufficient

to sustain his conviction and that his sentence is inappropriate in light of the nature of the

offenses and his character. Finding sufficient evidence and concluding that Griffin’s

sentence is not inappropriate, we affirm.

                                            FACTS

          In June 2010, Griffin began dating Amanda Hamilton after attending her high

school graduation party. Beginning in September 2010, Griffin would spend several

nights a week at the home of Amanda’s parents, Robert and Niki Hamilton, in

Greenfield. Griffin kept some of his belongings at the Hamiltons’ home but did not live

there. Robert and Niki did not allow Griffin in their home by himself.

          On January 20, 2011, Victoria Hamilton, Amanda’s sister, was scheduled for

surgery at 8:30 a.m. at Hancock Regional Hospital, which was visible from the

Hamiltons’ driveway.         Griffin, who had spent the night, went with Amanda to the

hospital around 9:00 a.m. and left sometime between 11:00 a.m. and noon.

          While the Hamiltons waited at the hospital, Griffin entered their home by

throwing a brick through the rear sliding glass door. Griffin stole several items, including

$1600 from a safe under Victoria’s bed, approximately $20 in change from Amanda’s

bedroom, approximately $200 in $2 bills from Robert and Niki’s bedroom, and




1
    Ind. Code § 35-43-2-1.
                                              2
approximately $30,000 in jewelry. Some of the items that were stolen were out of sight

and known only to a few people while other valuable items were left behind.

       Griffin returned to the hospital about thirty minutes later and remained there until

2:00 p.m. Griffin and Amanda returned to the Hamiltons’ home, and Amanda reported

the burglary.

       Detective Ronald Chittum of the Greenfield Police Department suspected that

because of the nature of what was stolen, the perpetrator was probably a friend or a

relative. Amanda suggested Brad and Josh Hamilton, her cousins, as possible suspects.

Griffin was at the house and observed Detective Chittum’s initial investigation. Griffin

appeared very nervous during the questioning process.

       After the burglary, Griffin bought car stereo equipment and asked Robert to help

him install it in his car. Griffin also got a tattoo, made a car payment, and had “money

left over.” Tr. p. 162.

       On January 26, 2011, Griffin asked Niki how someone could make an anonymous

tip to the police. That day, Griffin called Detective Chittum with what was at that time

an anonymous tip, implicating Brad Hamilton as the person who had stolen some

property that had been recovered at an apartment on Swope Street. Later that day, Griffin

arrived at the Greenfield Police Department and told Officer Anthony Neumeister a very

similar story. Officer Neumeister discovered that the tip was false and arrested Griffin.

       On January 27, 2011, Detective Chittum and Detective Jon Anderson interviewed

Griffin at the Hancock County Jail. Griffin admitted to making a false report, planting

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twenty-one $2 bills, and having knowledge of the actual burglary. Griffin then told the

officers that Amanda originated the plan for the burglary and that he recruited an old

friend, Jake, to perform the burglary. Using the social networking site, Facebook, Griffin

identified Timmy Wilson as “Jake.” Tr. p. 172-73.

      Griffin consented to a search of his vehicle. Police accounted for approximately

$1552 worth of stolen goods.        Additionally, the police investigated Wilson and

determined that he was not involved in the burglary. Likewise, the police identified

“Jake” as Jake Scroggins and concluded that he was not involved in the burglary. The

police determined that Griffin committed the burglary alone.

      On February 7, 2011, the State charged Griffin with Count I, burglary, a class B

felony; Count II, possession or receiving stolen property, a class D felony; Count III,

theft, a class D felony; and Count IV, false informing, a class B misdemeanor. Griffin’s

jury trial commenced on August 1, 2011, and Griffin was found guilty on all counts.

      The trial court held a sentencing hearing on August 31, 2011, during which it

vacated Count II. The trial court found three aggravating factors: 1) Griffin’s criminal

history; 2) Griffin committed the offenses while on probation; and 3) the fact that a

reduced sentence would depreciate the seriousness of the crime.

      Regarding Griffin’s criminal history, although he was only nineteen years old at

the time of sentencing, he had three previous felony convictions as an adult. These

included one class C felony burglary and two class D felony theft convictions. One of



                                            4
Griffin’s theft convictions involved his stealing jewelry from the mother of a girlfriend

with whom he had lived.

        The trial court found two mitigating factors, namely, Griffin’s reasonably young

age and his apparent mental health issues. The trial court determined that the aggravating

factors outweighed the mitigating factors. The trial court sentenced Griffin to concurrent

terms of ten years with three years suspended followed by three years on probation on

Count I, two years on Count II, and to 180 days on Count IV, for a total executed term of

seven years in the Department of Correction (DOC). Griffin now appeals his burglary

conviction2 and his sentence.

                                  DISCUSSION AND DECISION

                                    I. Sufficiency of the Evidence

        Griffin argues that the evidence was insufficient to sustain his conviction for class

B felony burglary. More particularly, Griffin maintains that he had consent to be in the

Hamiltons’ residence.

        In reviewing a challenge to the sufficiency of the evidence, this Court neither

reweighs the evidence nor assesses the credibility of witnesses. McHenry v. State, 820

N.E.2d 124, 126 (Ind. 2005). Instead, we consider only the evidence favorable to the

verdict and all reasonable inferences drawn therefrom. Id. This Court will affirm the

conviction unless “no rational factfinder” could have found the defendant guilty beyond a

reasonable doubt. Clark v. State, 728 N.E.2d 880, 887 (Ind. Ct. App. 2000).
2
  Griffin specifically points out in his Reply Brief that he “does not challenge the convictions for Class D
felony theft and Class B misdemeanor false informing.” Reply Brief p. 1 n.1.
                                                     5
       Indiana Code section 35-43-2-1 provides, in relevant part, “A person who breaks

and enters the building or structure of another person, with intent to commit a felony in it,

commits burglary. . . . [T]he offense is . . . a Class B felony if . . . the building or structure

is a . . . dwelling.” In addition, as recognized in Smith v. State, 477 N.E.2d 857, 862

(Ind. 1985), consent to enter is a defense to a burglary charge, and the jury in the instant

case was instructed that when the defense of consent is raised, “the State has the burden

of disproving the defense beyond a reasonable doubt. However, a Defendant’s belief that

he has permission to enter must be reasonable. . . .” Tr. p. 280.

       In this case, Niki testified that Griffin was not authorized to be in the house alone.

Tr. p. 40. Robert testified that Griffin was not given a key to the residence and that he

specifically told Amanda that Griffin was not to be in the house by himself. Id. at 61.

Indeed, Robert testified that he would be shocked if he would have found Griffin in the

house alone. Id. at 78-79. Robert further explained on cross-examination that although

Victoria’s boyfriend, Logan, was permitted to be at the residence by himself, Griffin was

not because Robert “didn’t trust him.” Id. at 80-81.

       Like her parents, Amanda testified that Griffin was not permitted to stay at her

house by himself. Tr. p. 104. Amanda explained that in the past, she had allowed Griffin

to use her key to go into the house to get something while she waited outside but that she

had not given Griffin her key to the house the day the home was burglarized. Id. It is

also noteworthy that Griffin entered the home by throwing a brick through the rear

sliding glass door. Under these facts and circumstances, a rational factfinder could

                                                6
conclude that Griffin did not have the Hamiltons’ consent to be in their home and that he

committed class B felony burglary. Accordingly, this argument fails.

                             II. Appropriateness of Sentence

       Griffin argues that his sentence is inappropriate in light of the nature of the

offenses and his character pursuant to Indiana Appellate Rule 7(B). It is well established

that sentencing is within the trial court’s sound discretion and should receive considerable

deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Nevertheless, the

Indiana Constitution authorizes independent appellate review and revision of sentences,

which is implemented through Rule 7(B). Carroll v. State, 922 N.E.2d 755, 757 (Ind. Ct.

App. 2010), trans. denied. In reviewing a sentence under Rule 7(B), “[u]ltimately the

length of the aggregate sentence and how it is to be served are the issues that matter.”

Sanchez v. State, 938 N.E.2d 720, 722 (Ind. 2010).

       Griffin was convicted of class B felony burglary, class D felony theft, and class B

misdemeanor false informing. Ten years is the advisory sentence for a class B felony;

one and one-half years is the advisory sentence for a class D felony. Ind. Code §§ 35-50-

2-5, -7. Here, on the burglary conviction, Griffin was sentenced to “10 years to the

[DOC] with 3 years suspended followed by 3 years probation . . . and a concurrent

sentence of 2 years to the [DOC] on Theft and 180 days on False Informing.”

Appellant’s App. p. 55-56.

       As for the nature of the offenses, Griffin broke into and entered the home of his

girlfriend’s parents and stole over $30,000 worth of jewelry and money as the family

                                             7
waited at the hospital during his girlfriend’s sister’s surgery. Tr. p. 68-79. Griffin, who

had spent time at the Hamiltons’ residence but did not live there, had intimate knowledge

of the family’s most prized possessions and used this knowledge to take advantage of

them during a vulnerable time. Id. at 43-48; 101-04; 197-99.

       Then, to deceive the investigating officers, Griffin called in a false tip and

attempted to frame one of Amanda’s cousins and Griffin’s friends for the burglary. Tr. p.

48-50; 155-60. When the officers discovered that Griffin’s tip was false, he admitted to

lying and planting evidence but then made up a story involving Amanda and randomly

implicated someone on Facebook. Id. at 158-74. After changing his story several times,

Griffin finally admitted his involvement.

       Regarding Griffin’s character, although Griffin was only nineteen years old at the

time of sentencing, he had accumulated three unrelated felonies, namely, burglary and

two thefts. PSI p. 9. Even more telling of Griffin’s poor character, one of the theft

convictions involved his stealing jewelry from the mother of a girlfriend with whom he

had lived. Id. at 6. Moreover, Griffin steals to support his substance abuse problem and

committed the instant offenses while on probation. Id. at 6-13. In light of the nature of

the offenses and Griffin’s character, we cannot say that his sentence is inappropriate and

we decline his request to revise it.

       The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.



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