Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

LILABERDIA BATTIES                               GREGORY F. ZOELLER
Batties & Associates                             Attorney General of Indiana
Indianapolis, Indiana
                                                 MONIKA PREKOPA TALBOT
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana

                                                                                  FILED
                              IN THE                                           Oct 30 2012, 9:11 am

                    COURT OF APPEALS OF INDIANA                                        CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




KEVIN REAVES,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 49A02-1202-CR-131
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Grant Hawkins, Judge
                           Cause No. 49G05-1109-FB-63316




                                      October 30, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issues

       Kevin Reaves was found guilty of burglary, a Class B felony, and theft, a Class D

felony, and he was also found to be an habitual offender. Reaves now appeals, raising

two issues for our review, which we restate as: whether the evidence is sufficient to

support his convictions, and whether his convictions for burglary and theft violate double

jeopardy. Concluding the evidence is sufficient to support both convictions and Reaves’s

convictions do not violate double jeopardy, we affirm.

                               Facts and Procedural History

       Steven Barker returned to his home one evening in May 2007 to find his front and

back doors broken into. Various pieces of furniture were missing, including a dining

room table and chairs, a couch, two chairs, an ottoman, lamps, end tables, a coffee table,

televisions, and vases. On the same day, Kimberlyn Outlaw agreed to buy some used

furniture from Tony Hatchett. A few hours after their conversation, Hatchett and some

other men arrived, including Reaves, and moved the furniture into Outlaw’s home.

Outlaw paid $100.00 to Hatchett for the furniture. Police later discovered the furniture

moved into Outlaw’s home was the same furniture stolen from Barker’s home, except

that the televisions were not sold to Outlaw.

       When police officers arrived at Barker’s home, they determined someone had

forced entry at the front and back doors. They took finger prints from the handle of a

knife found lying on the floor in Barker’s bedroom, and the prints were later determined

to belong to Reaves. Barker testified the knife was wedged in the ceiling in his bedroom

where the attic door is located, and that he wedged it there so that he could pry open the

attic door when necessary. Reaves testified, however, that he believed he was in the
                                                2
home to help move furniture for someone who was being evicted, and that he found the

knife in the kitchen and used it to make a sandwich.

       Reaves was charged with burglary as a Class B felony and theft as a Class D

felony, and, after waiving his right to a jury trial, the trial court convicted Reaves of both

counts. In addition, he was determined to be an habitual offender. The trial court

sentenced Reaves to ten years for burglary, which it enhanced by ten years due to Reaves

being an habitual offender, and to two years for theft, which it ordered to be served

concurrent to his sentence for burglary. In total, Reaves was sentenced to twenty years in

prison. Reaves now appeals.

                                  Discussion and Decision

                               I. Sufficiency of the Evidence

                                  A. Standard of Review

       When reviewing a claim of insufficient evidence, we neither reweigh the evidence

nor assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind.

2010). We look only to the evidence that supports the verdict and any reasonable

inferences that can be drawn therefrom. Id. We will affirm the convictions so long as

there is probative evidence from which a reasonable finder of fact could find the

defendant guilty beyond a reasonable doubt. Id.

                                 B. Reaves’s Convictions

                                        1. Burglary

       Class B burglary occurs when a person “breaks and enters the [dwelling] of

another person, with intent to commit a felony in it.” Ind. Code § 35-43-2-1. Reaves

admits he entered Barker’s residence, but he argues the evidence does not establish
                                              3
beyond a reasonable doubt that he broke into Barker’s residence with the intent to

commit a felony. We disagree.

       Reaves admits he was in Barker’s home when the items were stolen. Additionally,

his finger prints were found inside the home, he accompanied Hatchett and the other men

to Outlaw’s home where most of the stolen items were sold, and signs of forced entry

existed at Barker’s front and rear doors. The evidence most favorable to the judgment is

that Reaves and the other men stole items from Barker’s home, that to gain entry the men

busted open the front and back doors, and that the knife was removed from its position

wedging the attic door open in Barker’s bedroom, which would seem to indicate that

Reaves accessed the attic while inside the home. Viewing the evidence most favorable to

the trial court’s verdict, a reasonable finder of fact could conclude Reaves broke into

Barker’s home with the intent to commit a felony, namely theft, and that he is thus guilty

of burglary beyond a reasonable doubt. That Reaves has a different story of what

happened is immaterial for our review. We do not reweigh the evidence or assess the

credibility of witnesses.

                                         2. Theft

       “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, a Class D felony.” Ind. Code § 35-43-4-2. Assessing the evidence

most favorable to the trial court’s verdict, a reasonable finder of fact could conclude

beyond a reasonable doubt that Reaves committed theft.

       Reaves admitted to being inside Barker’s home while his furniture was stolen, the

front and rear doors were broken into while Barker was not home, several items of
                                             4
furniture were taken without Barker’s permission and sold for cash, Reaves was one of

the men who delivered such furniture, and Reaves’s fingerprints were found inside

Barker’s home on a knife that Barker stated was previously wedged between his ceiling

and attic door. We will not reweigh the evidence or reassess the credibility of the

witnesses.      A reasonable finder of fact could conclude Reaves knowingly exerted

unauthorized control over Barker’s belongings with the intent to deprive Barker of the

value of such belongings. Sufficient evidence supports Reaves’s conviction for theft.

                                            II. Double Jeopardy1

                                          A. Standard of Review

        Indiana’s double jeopardy clause provides, “No person shall be put in jeopardy

twice for the same offense.” Ind. Const. art 1, § 14.

        [T]wo or more offenses are the “same offense” in violation of Article I,
        Section 14 of the Indiana Constitution, if, with respect to either the
        statutory elements of the challenged crimes or the actual evidence used to
        convict, the essential elements of one challenged offense also establish the
        essential elements of another challenged offense.

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphases in original). A defendant

must establish “a reasonable possibility that the evidentiary facts used by the fact-finder

to establish the essential elements of one offense may also have been used to establish the

essential elements of a second challenged offense.” Id. at 53. “In determining the facts

used by the fact-finder to establish the elements of each offense, it is appropriate to

consider the charging information, jury instructions, and arguments of counsel.” Lee v.

State, 892 N.E.2d 1231, 1234 (Ind. 2008).

        1
            Reaves did not timely raise a double jeopardy objection at trial. However, our general rule that such
failure to object waives an issue for appeal is not applicable where the claim is fundamental. See Perkins v. State,
541 N.E.2d 927, 929 (Ind. 1989). A double jeopardy violation is a violation of one’s fundamental rights. Scott v.
State, 855 N.E.2d 1068, 1074 (Ind. Ct. App. 2006).
                                                         5
                                 B. Reaves’s Convictions

        Reaves argues Indiana’s Double Jeopardy Clause was violated because he was

“convicted of multiple charges based on the same set [of] facts.” Brief of Appellant at

13. The charging information for burglary states that Reaves “did break and enter the . . .

dwelling of Steven Barker . . . with intent to commit the felony of Theft therein; that is,

with intent to knowingly exert unauthorized control over the property of Steven Barker”

and deprive Barker of the value or use of such property. Appellant’s Appendix at 19.

For theft, the charging information states that Reaves “did knowingly exert unauthorized

control over the property, that is: furniture and/or television . . . with intent to deprive

Steven Barker of any part of the value or use of said property[.]” Id. at 20.

        In the State’s closing argument, it highlighted the facts that a knife with Reaves’s

fingerprints was found in Barker’s bedroom and had been removed from where it was

previously wedged into the attic door, that Barker did not authorize anyone to take his

belongings, that some of the items were taken to Outlaw’s home and others, including the

televisions, were never recovered, and that Reaves admitted to being inside Barker’s

home.

        The key distinction between burglary and theft is that burglary is completed once a

person breaks into a residence if the person has the intent to commit theft therein. See

Ind. Code § 35-43-2-1. Theft requires the actual taking of items with the intent to deprive

the owner of their use or value. See Ind. Code § 35-43-4-2. We conclude Reaves has

failed to meet his burden of establishing that the evidentiary facts used to establish his

conviction for burglary were likely also used to establish his conviction for theft. The

evidence presented to the jury demonstrating theft included the facts that Barker’s
                                             6
residence was broken into, several belongings were stolen without his permission, and

Reaves was one of the suspects responsible. In addition to the fact that Barker’s home

was broken into, a separate fact supports Reaves’s conviction for burglary. Namely, once

inside he removed a knife from the attic door in Barker’s bedroom.            A reasonable

factfinder could conclude Reaves was searching for items to steal. This demonstrates that

Reaves was not inside the home for a lawful purpose, but rather, entered the residence to

commit theft.

       Additionally, we point out that the State’s charging information for burglary

alleges that Reaves exerted unauthorized control over “the property” of Barker,

Appellant’s App. at 19, whereas the charging information for theft specified that Reaves

exerted unauthorized control over “furniture and/or television.”        Id. at 20.    Barker

testified that in addition to various pieces of furniture and televisions being stolen, lamps

and vases were also stolen. This demonstrates the jury could have concluded Reaves

broke into Barker’s home with intent to commit theft therein based upon the subsequent

theft of vases and lamps, and concluded Reaves committed theft based on the stealing of

Barker’s furniture and televisions.     For these reasons, we conclude Reaves has not

demonstrated a double jeopardy violation occurred.

                                        Conclusion

       Sufficient evidence was presented to convict Reaves of both burglary and theft,

and his convictions do not offend double jeopardy. We therefore affirm.

       Affirmed.

BAKER, J., and BRADFORD, J., concur.


                                             7
