MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Aug 16 2016, 9:09 am
this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General
Indianapolis, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Allen,                                           August 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1511-CR-1853
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa Borges, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G04-1407-F5-37207



Bradford, Judge.



                                    Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016     Page 1 of 12
[1]   On July 24, 2014, an eyewitness called 911 to report what appeared to be a

      burglary in progress at MacAllister Machinery (“MacAllister’s”), a Beech

      Grove business which sells lawn care equipment. Shortly thereafter, Beech

      Grove police arrested two men who had fled police in a truck carrying lawn

      care equipment stolen from MacAllister’s. The police utilized K-9 partners to

      track and apprehend the suspects. Appellant-Defendant Anthony Allen was

      found choking one of the police dogs before being arrested. Allen was

      convicted of Level 5 felony burglary, Class A misdemeanor striking a law

      enforcement animal, and Class A misdemeanor resisting law enforcement. The

      jury instructions and verdict form each had a single scrivener’s error which

      incorrectly listed Count II as “striking a law enforcement officer” instead of

      “striking a law enforcement animal.” On appeal, Allen argues (1) that there

      was insufficient evidence to sustain his burglary conviction, and (2) that his due

      process rights were violated based on the defective verdict form. We affirm the

      trial court’s judgment.



                            Facts and Procedural History
[2]   On the night of July 24, 2014, Nikita Barbee was parked at a storage facility in

      Beech Grove. The storage facility is located adjacent to an abandoned house

      which in turn is located next to MacAllister’s, a business which sells lawn care

      equipment. Barbee witnessed a two-door white pickup truck park in the field

      near the abandoned house from which two people exited and ran around the

      opposite side of the house. Barbee then heard loud noises and saw people


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 2 of 12
      loading objects into the truck. Barbee called the police to report the suspicious

      activity and the truck left shortly thereafter.


[3]   Beech Grove Police Officer Lee Huffman was dispatched in response to

      Barbee’s call and spotted a white two-door pickup truck at a nearby

      intersection. Officer Huffman attempted to initiate a traffic stop but the truck

      did not stop and, instead, sped away and led Officer Huffman on a high speed

      chase. Ultimately, the truck crashed and the driver, Garland Jeffers, and

      passenger, Allen, exited the vehicle and fled on foot. When police searched the

      truck, they found boxes of lawn care equipment containing leaf blowers, chain

      saws, weed eaters, and hedge trimmers. The truck was registered to Kimberly

      Allen at a Fort Wayne address, and, inside the truck, there was mail addressed

      to Anthony Allen.


[4]   Officer Huffman called for assistance from K-9 officers to track the two men.

      Officer Jeff Bruner and his K-9 partner located and apprehended Jeffers who

      was hiding beneath some brush in a nearby wooded area. Officer Andy

      Branham and his K-9 partner Kash located Allen hiding in some bushes.

      Officer Branham gave Allen several warnings to surrender and come out or

      Officer Branham would release Kash. Ultimately, Officer Branham sent Kash

      into the bushes to apprehend Allen. Moments later, Officer Branham heard

      Kash making gurgling sounds and, after shining his flashlight into the bushes,

      saw Allen grabbing Kash around the neck in an attempt to choke the dog.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 3 of 12
[5]   After inspecting the items found in the truck, Officer Tim Williams returned to

      MacAllister’s where he found a pair of bolt cutters and a hole cut in the chain

      link fence on the east side of the property, which lies between MacAllister’s and

      the abandoned house. Officer Williams entered the property through the hole,

      approached the nearest door, and, finding it unlocked, went inside. The door

      opened to the warehouse section of the business and Officer Williams noticed

      pallets and shelving nearby which contained items similar to those found in the

      truck including leaf blowers, chainsaws, and weed eaters.


[6]   The following day, MacAllister’s branch manager Michael Doyle performed an

      inventory, found that the business was missing several items, and identified the

      items recovered from the truck by their serial numbers as belonging to

      MacAllister’s. On the afternoon before the burglary, Timothy Retherford, the

      service manager at MacAllister’s, observed a man in the showroom who

      “looked a little off” because he remained in the store by himself for

      approximately an hour and a half and did not purchase anything. Tr. p. 256.

      Retherford’s description of the man closely matched Allen’s appearance.

      During the same time in which the man was in the store, MacAllister’s

      surveillance video showed a white two-door pickup truck in the store’s parking

      lot.


[7]   The State charged Allen with Level 5 felony burglary, Class A misdemeanor

      striking a law enforcement animal, and Class A misdemeanor resisting law

      enforcement. Allen represented himself pro se at his jury trial which was held

      on September 28 and 29, 2015. With respect to Count II, striking a law

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 4 of 12
      enforcement animal, the preliminary and final jury instructions contained a

      scrivener’s error and stated, incorrectly, that Allen was charged with striking a

      law enforcement officer. However, the jury instructions went on to provide the

      correct charging information and elements instruction for the offense of striking

      a law enforcement animal.


              Count 2, on or about July 24, 2014, Anthony Allen did
              knowingly strangle and/or mistreat a dog owned by a law
              enforcement agency, to wit: Indianapolis Metropolitan Police
              Department.
                                                      ***
              The crime of mistreating a law enforcement animal is defined by
              law as follows: A person who knowingly or intentionally strikes,
              torments, injures or otherwise mistreats a law enforcement
              animal, commits Mistreating a Law Enforcement Animal, a
              Class A misdemeanor.


      Tr. pp. 555, 558. The instruction accurately provides the elements required to

      prove the offense of striking a law enforcement animal as provided in Indiana

      Code section 35-46-3-11. Allen did not object to the apparent scrivener’s error.


[8]   The jury found Allen guilty as charged and, on October 21, 2015, the trial court

      sentenced Allen to five years for the burglary conviction, one year for striking a

      law enforcement animal, and one year for resisting law enforcement, all to be

      served concurrently.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 5 of 12
[9]    Allen raises two issues for our review: (1) whether there is sufficient evidence to

       sustain his burglary conviction and (2) whether his due process rights were

       violated when he was charged with striking a law enforcement animal but

       convicted of striking a law enforcement officer.


                                   I. Sufficiency of Evidence
[10]           When reviewing the sufficiency of the evidence, we consider only
               the probative evidence and reasonable inferences supporting the
               verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct. App. 2009)
               (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). We do
               not reweigh the evidence or assess witness credibility. Id. We
               consider conflicting evidence most favorably to the trial court’s
               ruling. Id. We will affirm the conviction unless no reasonable
               fact-finder could find the elements of the crime proven beyond a
               reasonable doubt. Id.


       Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010).


[11]   The probative evidence supporting Allen’s burglary conviction is as follows: an

       eyewitness saw a white two-door pickup truck pull up near the abandoned

       house on the lot adjacent to MacAllister’s. Two men got out of the truck and at

       some point began loading large items into the truck. Later that night, Officer

       Williams inspected the MacAllister’s property and found a pair of bolt cutters

       and a hole cut in the chain link fence which lies between MacAllister’s and the

       abandoned house. After entering the MacAllister’s property through the hole,

       Officer Williams found that the nearest door, which opened to the

       MacAllister’s warehouse, was unlocked. MacAllister’s service manager



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 6 of 12
       Retherford testified that that door is “normally completely barred and never

       used.” Tr. p. 259.


[12]   The eyewitness reported that when the truck left, it drove onto Elmwood

       Avenue toward Emerson Avenue. Officer Huffman responded to the 911 call

       and located a white two-door pickup truck carrying two men near the

       intersection of Elmwood and Emerson. The truck led Officer Huffman on a

       high-speed chase before crashing. Allen concedes that he was a passenger in

       the truck, that there were goods stolen from MacAllister’s in the truck, and that

       he was apprehended running from the truck. However, Allen contends that

       there was insufficient evidence that he was involved with the breaking and

       entering of MacAllister’s or the removing of merchandise therefrom and,

       consequently, that his conviction should be reduced to theft. Specifically, Allen

       argues that no one could identify him or Jeffers as the men who approached or

       cut the chain link fence, entered MacAllister’s, or carried boxes from the

       warehouse.


[13]   Essentially, Allen argues that evidence against him is insufficient because it is

       entirely circumstantial. However, “[c]ircumstantial evidence and the inference

       which it supports may be sufficient to warrant a conviction for that offense.”

       Higgason v. State, 523 N.E.2d 399, 402 (Ind. 1988). In Higgason, the Indiana

       Supreme Court addressed a similar situation where the defendant also

       challenged the sufficiency of the evidence supporting his burglary conviction.

       The Court reasoned as follows:



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 7 of 12
               [A]ppellant’s car was observed near the scene of the crime, a high
               speed chase ensued, the car was wrecked, appellant fled, was
               pursued by police, and arrested at his residence. The property
               stolen from [the victim’s] garage and the prybar used to gain
               entry to the garage were found in appellant’s car. This evidence is
               sufficient to support the conviction.


       Id.


[14]   In addition to the similarly incriminating evidence here, a man matching

       Allen’s description was seen acting suspiciously inside MacAllister’s on the day

       of the burglary and a white two-door pickup truck was parked outside of the

       business around the same time. While the evidence of Allen’s guilt is wholly

       circumstantial, it is also overwhelming and leaves no room for any reasonable

       theory of innocence, i.e. his unexplained possession of property which had been

       stolen just minutes prior. See Allen v. State, 743 N.E.2d 1222, 1230 (Ind. Ct.

       App. 2001) (“the unexplained possession of recently stolen property will

       support a burglary conviction so long as there is evidence that there was in fact

       a burglary committed”). Accordingly, there was sufficient evidence to support

       Allen’s conviction for burglary.


                                        II. Defective Verdict
[15]   “It is a denial of due process of law to convict an accused of a charge not made.

       Where instructions are given or a verdict is rendered on a particular offense

       which is not the same as the offense charged reversal usually is warranted.”

       Maynard v. State, 508 N.E.2d 1346, 1351 (Ind. Ct. App. 1987) (citations

       omitted). “However, an erroneous judgment of conviction of this type does not

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 8 of 12
       always require reversal. ‘Where the defendant has not been misled and it is

       evident that the issues joined under the charging information have been

       determined, a simple correction of the judgment, rather than reversal, is the

       appropriate remedy.’” Id. (quoting McFarland v. State, 179 Ind. App. 143, 150-

       151, 384 N.E.2d 1104, 1109-1110 (1979)). For the following reasons, we find

       that Allen has not shown that he was misled in any way by the error on the

       verdict form.


[16]   The State alleged in Count II of the charging information (both original and

       amended) that “on or about July 24, 2014, Anthony Allen did knowingly

       strangle and/or mistreat a dog owned by a law enforcement agency, to wit:

       Indianapolis Metropolitan Police Department.” Appellant’s App. p. 31, 43.

       The preliminary and final jury instructions stated, incorrectly, that Allen was

       charged with “Count II Striking a Law Enforcement Officer.” Appellant’s

       App. p. 121. However, the jury instructions went on to provide the correct

       charging information and elements instruction for the offense of striking a law

       enforcement animal.


               Count 2, on or about July 24, 2014, Anthony Allen did
               knowingly strangle and/or mistreat a dog owned by a law
               enforcement agency, to wit: Indianapolis Metropolitan Police
               Department.
                                                       ***
               The crime of mistreating a law enforcement animal is defined by
               law as follows: A person who knowingly or intentionally strikes,
               torments, injures or otherwise mistreats a law enforcement
               animal, commits Mistreating a Law Enforcement Animal, a
               Class A misdemeanor. Before you may convict the Defendant,
       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 9 of 12
               the State must have proved each of the following beyond a
               reasonable doubt: (1) The Defendant (2) knowingly (3)
               mistreated a dog, which was a law enforcement animal.


       Appellant’s App. pp. 122, 126.


[17]   During closing argument, the State made the following argument with regard to

       Count II: “You heard testimony from Officer Branham that when Kash went

       into the bushes he saw Anthony Allen strangling his dog. He heard gurgling

       and choking noises. That proves the other charge that Mr. Allen faces, striking

       a law enforcement animal or mistreating a law enforcement animal.” Tr. p.

       432. Following Officer Branham’s testimony, the trial court asked Officer

       Branham “in your opinion, was the Defendant trying to hurt the dog or stop

       from being bit?” to which Officer Branham responded, “I would – in my

       opinion say hurt the dog.” Tr. p. 251.


[18]   The blank verdict form given to the jury for Count II read as follows:

                                                     Verdict
               We the Jury, find the Defendant, Anthony Allen, not guilty of
               striking a law enforcement animal, a Class A misdemeanor as
               charged in Count II.
               Dated:_____________                       _____________________
                                                                    Foreperson
                                                     Verdict
               We the Jury, find the Defendant, Anthony Allen, guilty of
               striking a law enforcement officer, a Class A misdemeanor as
               charged in Count II.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 10 of 12
               Dated:_____________                       _____________________
                                                                    Foreperson


       Court’s Ex. 5 (italicized emphases added). The jury returned a guilty verdict on

       Count II. The abstract of judgment and sentencing order correctly list the guilty

       verdict on Count II as striking a law enforcement animal.


[19]   Allen had the opportunity to review all of the aforementioned forms and he

       raised no objections. While this would typically waive the issue for review on

       appeal, Allen argues that the discrepancy between the charge and conviction

       constitutes a violation of his due process rights and so cannot be waived.

               Failure to object to an instruction at trial typically results in
               waiver of the issue on appeal. Clay v. State, 766 N.E.2d 33, 36
               (Ind. Ct. App. 2002). If an instruction is so flawed that it
               constitutes fundamental error, however, waiver does not preclude
               review on appeal. Id. To qualify as fundamental, an error must
               be so prejudicial to the rights of the defendant as to make a fair
               trial impossible. Id. Fundamental error is a substantial, blatant
               violation of due process.


       Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010).


[20]   Regardless of whether there has been a fundamental error here, reversal of an

       erroneous judgment is not appropriate where the defendant has not been misled

       and it is evident that the issues under the charging information have been

       determined. Maynard, 508 N.E.2d at 1351. Despite Allen’s claim that he was

       misled by the error at issue, he has provided no explanation of how he was

       misled or evidence that he, or anyone else, was confused by the jury

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 11 of 12
       instructions or verdict form. It is clear that the issue which was addressed and

       resolved at trial was whether Allen choked or otherwise attacked Officer

       Branham’s K-9 partner Kash. The State never alleged that Allen attempted to

       or did strike or choke any of the police officers. Because the sentencing order

       and abstract of judgment correctly list the guilty verdict on Count II as striking

       a law enforcement animal, there is no reason to remand for a correction of

       judgment.


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


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1853 | August 16, 2016   Page 12 of 12
