      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing                            Dec 19 2017, 9:17 am

      the defense of res judicata, collateral                                      CLERK
                                                                               Indiana Supreme Court
      estoppel, or the law of the case.                                           Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Philip R. Skodinski                                     Curtis T. Hill, Jr.
      South Bend, Indiana                                     Attorney General of Indiana
                                                              J.T. Whitehead
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Robert J. Szabo, Jr.,                                   December 19, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              71A03-1706-CR-1411
              v.                                              Appeal from the St. Joseph
                                                              Superior Court
      State of Indiana,                                       The Honorable Jeffrey L. Sanford,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              71D03-1606-F5-102



      Mathias, Judge.

[1]   Robert J. Szabo Jr. (“Szabo”) appeals his conviction for Level 5 felony

      burglary. Szabo raises four issues on appeal which we restate as:


      Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017         Page 1 of 16
        I. Whether the trial court abused its discretion when it admitted
           photographic evidence of surveillance camera footage;
       II. Whether the evidence was sufficient to support Szabo’s burglary
           conviction;
      III. Whether the trial court abused its discretion when it denied Szabo’s
           tendered jury instruction on criminal trespass; and
      IV. Whether an officer’s statement at trial constituted an improper comment
           on Szabo’s right to remain silent.

[2]   We affirm.


                                 Facts and Procedural History
[3]   St. Joseph County Police Officer Joshua Harmon (“Harmon”) was driving in

      his squad car with a training officer around 1:45 a.m. on June 2, 2016, when he

      heard a loud alarm coming from the direction of Headers car care business

      (“Headers”) located in Mishawaka, Indiana. Officer Harmon pulled into

      Headers and noticed a gap in the fence surrounding its property. Soon after,

      Mishawaka Police Officer Joel Cyrier (“Officer Cyrier”) arrived on scene.

      Officer Harmon, his training officer, and Officer Cyrier entered Headers’s lot

      through the opening in the gate where they saw a slightly ajar service door next

      to a garage. The officers waited outside the garage for a K-9 unit that was en

      route and would be used to clear the building.


[4]   While waiting for the K-9 unit, Officers Harmon and Cyrier saw Szabo walking

      on the outside of the fence enclosing Headers’s property. The officers

      approached Szabo, handcuffed him, put him in the back seat of a patrol vehicle,

      and read him his Miranda rights. Szabo told the officers that he had left the

      south side of South Bend around 1:45 a.m. and was just walking along the road.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 2 of 16
      Officer Cyrier told Szabo there was no way he could have walked that far in

      such a short amount of time. Szabo also appeared sweaty and out of breath,

      which the officers found unusual because it was a relatively cool night.


[5]   While Szabo was in custody, Headers’s general manager Steve Huddleston

      (“Huddleston”) arrived and provided the officers with access to the computer

      surveillance system on the property. Headers is equipped with twelve closed-

      circuit cameras that are always operating. Copies of the video could not be

      made, so instead, Mishawaka Police Officer Robert Pfieffer (“Officer Pfieffer”)

      took photographs and a video recording of the surveillance video as it appeared

      on Huddleston’s computer. Several photographs and the recording appeared to

      show Szabo inside one of Headers’s garages looking at parts and tools.


[6]   At this point, Szabo was placed under arrest and was advised that if he wanted

      to speak to a detective about his whereabouts and actions that evening, then he

      could do so at the Mishawaka Police Station. The next day, Szabo was charged

      with Level 5 felony burglary.


[7]   A two-day jury trial commenced on April 20, 2017. Several photographs of the

      surveillance footage at Headers were admitted over objection. Also, prior to

      final arguments the court declined to give the jury Szabo’s tendered instruction

      on criminal trespass. The jury found Szabo guilty, and he was sentenced on

      May 31 to six years in the Department of Correction. Szabo now appeals.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 3 of 16
                       I. Admission of Surveillance Footage Photographs

[8]    Szabo first argues that the State failed to offer the proper foundation necessary

       to admit the photographs of the surveillance video of Headers. Photographs

       depicting matters that a witness describes during testimony are generally

       admissible. Ewing v. State, 719 N.E.2d 1221, 1225 (Ind. 1999). Like other

       evidence, photograph evidence falls within the sound discretion of the trial

       court and we will only reverse for an abuse. McQueen v. State, 711 N.E.2d 503,

       505 (Ind. 1999). A trial court abuses its discretion by ruling in a way clearly

       against the logic and effect of the facts and circumstances before it. Halliburton v.

       State, 1 N.E.3d 670, 675 (Ind. 2013).


[9]    The foundation necessary for admitting a photograph at trial depends on how it

       will be used. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014). Often times,

       photographs are introduced to aid in the presentation and testimony at trial, in

       which case the only requirement is testimony that the photograph accurately

       depicts the scene or occurrence as it appeared at the time in question. Id.

       (citations and quotations omitted).


[10]   Other times—as is this case here—photographs are admitted as substantive

       evidence as “silent witnesses” as to the activity being depicted. Id. In this

       situation, the foundational requirements are much stricter. Id. When a

       photograph is introduced at trial for “silent witness” purposes, the witness

       authenticating the photograph(s) “must give identifying testimony of the scene

       that appears in the photograph[s],” sufficient to persuade “the trial court . . . of


       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 4 of 16
       their competency and authenticity to a relative certainty.” Id. (emphasis in

       original) (citations omitted).


[11]   Here, the photographs were used for substantive purposes, as “silent witnesses”

       showing Szabo inside Headers at the time the alarm went off. Huddleston

       testified at trial that Headers’s surveillance system consists of twelve closed-

       circuit cameras that are always running. When Huddleston arrived at Headers

       on June 2, he accessed and viewed footage from the surveillance cameras with

       the officers. Huddleston played the video beginning just after the alarm went

       off, and it was from this footage that the police officers captured several images.

       Additionally, Huddleston testified that the pictures represented true and

       accurate visuals of the security footage, and that the pictures accurately

       depicted the rear service bay garage located on Headers’s property. See Rogers v.

       State, 902 N.E.2d 871, 877 (Ind. Ct. App. 2009).


[12]   Later during trial, Officer Pfieffer indicated that he took the pictures of the

       surveillance video, and at no point did he touch up or alter the photographs in

       any way. Id. at 876 (finding that to show authenticity under the silent witness

       theory the photographs must not have been altered). Officer Pfeiffer also

       explained that he needed to take pictures of the surveillance images because no

       one on site at the time knew how to make a copy of the actual camera footage.


[13]   Szabo takes issue with the fact that the date on the videotape was June 3, when

       the video was purportedly from June 2, and that there was no explanation given

       as to why one of the pictures showed Szabo’s coat in color. However, three


       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 5 of 16
       officers and Huddleston testified that they viewed the footage on June 2, and

       that the pictures of the footage were taken that same night. Huddleston also

       explained that when the lights are off, the cameras will record in black and

       white due to night vision; however, when the lights are on, the cameras will

       record in color. The one image appeared in color because there was a

       fluorescent light on above the vehicle in the garage at the time the footage was

       captured.

[14]   Based on these facts and circumstances, we conclude that the testimony from

       Officers Harmon, Cyrier, and Pfieffer, along with the testimony of Huddleston

       established a sufficient foundation upon which the trial court could admit

       photographs of Headers’s surveillance footage under the “silent witness”

       theory. See Wise v. State, 26 N.E.3d 137, 142–43 (Ind. Ct. App. 2015), trans.

       denied. Accordingly, the trial court did not abuse its discretion when it admitted

       the photographs during trial.


                                     II. Sufficiency of the Evidence

[15]   Szabo next contends that the State failed to present sufficient evidence to

       support his burglary conviction. When reviewing a claim of insufficient

       evidence to sustain a conviction, we consider only the probative evidence and

       reasonable inferences supporting the verdict. Jackson v. State, 50 N.E.3d 767,

       770 (Ind. 2016). It is the fact-finder’s role, not ours, to assess witness credibility

       and weigh the evidence to determine whether it is sufficient to support a

       conviction. Id. We will affirm the conviction unless no reasonable fact-finder

       could have found the elements of the crime proven beyond a reasonable doubt.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 6 of 16
       Id. It is therefore not necessary that the evidence overcome every reasonable

       hypothesis of innocence; rather, the 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).


[16]   To convict Szabo of Level 5 felony burglary, the State needed to prove that he:

       (1) broke and entered into the building or structure of another; (2) with the

       intent to commit a felony or theft inside. Ind. Code § 35-43-2-1. Szabo’s

       primary argument is that he cannot be guilty of burglary because the State

       presented no evidence that he intended to commit a felony or theft inside of

       Headers. We disagree.


[17]   As our supreme court has explained, “Burglars rarely announce their intentions

       at the moment of entry,” and therefore, “a burglar’s intent to commit a specific

       felony at the time of the breaking and entering may be inferred from the

       circumstances.” Baker v. State, 968 N.E.2d 227, 229–30 (Ind. 2012) (citations

       and quotations omitted). “Circumstantial evidence alone is sufficient to sustain

       a burglary conviction.” Id. at 230. We find two cases instructive in analyzing

       Szabo’s claim.

[18]   In Sipes v. State, our supreme court found sufficient evidence that Sipes intended

       to commit theft when he was found standing near a table with money on it and

       then fled when the homeowner screamed. 505 N.E.2d 796, 797 (Ind. 1987). The

       Sipes court explained, “The fact that it was late at night and that [Sipes] was in a




       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 7 of 16
       home where he had not been invited was evidence from which a jury could

       infer that he was guilty of breaking into the home with intent to steal.” Id.


[19]   In Wormbly v. State, a panel of this court found sufficient evidence to support

       Wormbly’s intent to commit theft. 550 N.E.2d 95, 97 (Ind. Ct. App. 1990),

       trans. denied. In that case, Wormbly had broken into the attic of a bar and cut a

       hole in the ceiling leading down to where cash and merchandise were kept. Id.

       Our court reasoned, “It can be inferred that Wormbly . . . [was] approaching

       valuable property for the purpose of taking it when the police interrupted [his]

       approach.” Id.


[20]   Here, Szabo’s conduct was similar to that of the defendants in both Sipes and

       Wormbly. The evidence established that Szabo was inside one of the garages on

       Headers property around 1:30 in the morning, and he clearly can be seen

       bending down and looking at various tools and parts just before the alarm

       sounded. See Baker, 968 N.E.2d at 231 (holding that the defendants act of

       looking through kitchen cupboards and drawers was sufficient for a jury to

       conclude the defendant entered with the intent to commit theft). Szabo’s actions

       are unlike the defendant in Freshwater v. State where our supreme court found

       insufficient evidence to show the requisite intent to commit a felony because

       there was no evidence that the defendant “was near or approaching anything

       valuable.” 853 N.E.2d 941, 944–45 (Ind. 2006).


[21]   Without any evidence to the contrary, it is reasonable for a jury to infer that an

       individual intends to commit theft when he breaks into a closed business


       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 8 of 16
       establishment after hours. Oster v. State, 992 N.E.2d 871, 876–77 (Ind. Ct. App.

       2013), trans. denied. It is not our role on appeal to substitute our judgment for

       that of the fact-finder, or to reweigh the evidence. And we examine the

       evidence most favorable to the jury’s judgment, and we will not disturb its

       verdict if there is substantial evidence of probative value from which the jury

       might reasonably infer guilt. Wormbly, 550 N.E.2d at 97. We are satisfied that

       the State produced sufficient evidence of probative value here to support

       Szabo’s burglary conviction.


                              III. Criminal Trespass Jury Instruction

[22]   Szabo next argues that the trial court abused its discretion when it declined to

       give the jury his tendered instruction on criminal trespass. Trial courts are

       provided broad discretion when instructing juries. Erlewein v. State, 775 N.E.2d

       712, 714 (Ind. Ct. App. 2002), trans. denied. When determining whether to give

       a lesser included offense instruction, trial courts apply the three-part test set out

       in Wright v. State, 658 N.E.2d 563 (Ind. 1995), which was explained more

       recently by our supreme court in Wilson v. State:


               The first two parts require the trial court to determine whether
               the offense is either inherently or factually included in the
               charged offense. If so, the trial court must determine whether
               there is a serious evidentiary dispute regarding any element that
               distinguishes the two offenses. . . . Where a trial court makes
               such a finding, its rejection of a tendered instruction is reviewed
               for an abuse of discretion.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 9 of 16
       765 N.E.2d 1265, 1271 (Ind. 2002) (citations, quotation, and footnote omitted).

       If the evidence in the record does not support giving an instruction on an

       inherently or factually included lesser offense, then the trial court should not

       give it to the jury. Wright, 658 N.E.2d at 567.


[23]   Szabo tendered the following instruction on criminal trespass as a lesser

       included offense of burglary, which the trial court refused to give:


               Included in the crime of “Burglary”, as charged in the
               Information, is the offense of Criminal Trespass.

                       “Criminal Trespass” is defined by statute as follows:

                                “A person who:

                                        (1)      not having a contractual interest in the
                                                 property, knowingly or
                                                 intentionally enters the real property of
                                                 another person after having been
                                                 denied entry by the other person or
                                                 that person’s agent; or

                                        (2)      knowingly or intentionally interferes
                                                 with the possession or use of the
                                                 property of another person without the
                                                 person’s consent; commits
                                                 criminal trespass, a Class A
                                                 misdemeanor.

                                To convict the defendant, the State must have
                                proved each of the following elements:

                                        1.       The defendant, Robert Szabo;

                                        2.       Knowingly or intentionally;


       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 10 of 16
                                        3.       Entered the property of Headers
                                                 Car Care after having been denied
                                                 entry and while not having a
                                                 contractual interest in that property; or

                                        [4].     Interfered with the possession or use of
                                                 the property of Headers Car Care;

                                        [5].     Without the consent of Headers
                                                 Car Care.

               The crime of criminal trespass is distinguished from the crime of
               burglary by the fact that burglary requires proof that
               Robert Szabo broke and entered the property of Headers
               Car Care and that he did so with the intent to commit a felony
               theft therein.

               If you find the State failed to prove each of the essential elements
               of burglary you may find the defendant guilty of
               criminal trespass. To convict the defendant of any crime,
               however, you must find the State has proven each of the elements
               of that particular crime beyond a reasonable doubt.


       Appellant’s App. p. 12. Szabo argues that the trial court’s refusal was error. We

       disagree.


[24]   First, our supreme court has consistently held that criminal trespass is not an

       inherently lesser included offense of burglary. E.g., J.M. v. State, 727 N.E.2d

       703, 705 (Ind. 2000). Next, to determine whether criminal trespass is a factually

       included lesser offense, we look to the charging information and determine

       whether all of the elements of the lesser offense are included. Watts v. State, 885

       N.E.2d 1228, 1231 (Ind. 2008).


       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 11 of 16
[25]   A charge of criminal trespass in the present case could have come in two ways.

       First, it would have required that: (1) Szabo knowingly or intentionally entered

       the real property of Headers; (2) after having been denied entry; and (3) not

       having a contractual interest in the property. Ind. Code § 35-43-2-2(b)(1)

       (2014).1 Or second, that Szabo knowingly or intentionally interfered with the

       possession or use of Headers without consent. I.C. § 35-43-2-2(b)(4).


[26]   Here, the charging information stated, “On or about June 2, 2016 in St. Joseph

       County, State of Indiana, ROBERT J SZABO Jr. did knowingly break

       and enter the building or structure of Headers Car Care; with the intent to

       commit a theft therein.” Appellant’s App. p. 9. The language the State chose to

       use tracks the requisite language for Level 5 felony burglary. See I.C. § 35-43-2-

       1. The charging information does not address whether Szabo had been denied

       entry, whether he had a contractual interest in the property, or whether he

       interfered with the possession or use of Headers without consent. By only

       charging elements that would constitute burglary, the State excluded the

       elements of criminal trespass in the information, and as such an instruction on

       criminal trespass here would be improper. Wormbly, 550 N.E.2d at 96; see also

       Jones v. State, 438 N.E.2d 972, 975 (Ind. 1982) (explaining that “the state

       through its drafting can foreclose as to the defendant, the tactical opportunity to

       seek a conviction for a lesser offense.”).




       1
         The Criminal Trespass statute was amended on July 1, 2016. Here, we cite to the statute as it existed at the
       time of the current offense in June 2016.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017         Page 12 of 16
[27]   Therefore, because the offense of criminal trespass is not inherently or factually

       included in the burglary charge, the trial court did not abuse its discretion when

       it refused to give Szabo’s tendered instruction.


             IV. Impermissible Comment on Szabo’s Right to Remain Silent

[28]   Szabo next claims that the trial court erred when it denied his motion for a

       mistrial based on an alleged Doyle violation. In general, a criminal defendant

       may not be penalized at trial for invoking the right to remain silent. Morgan v.

       State, 755 N.E.2d 1070, 1074 (Ind. 2001) (citing Doyle v. Ohio, 426 U.S. 610, 620

       (1976)). In Doyle, the Court held that using a defendant’s post-Miranda silence

       to impeach a defendant at trial violates the Due Process Clause of the

       Fourteenth Amendment. See 426 U.S. at 619. “The point of the Doyle holding is

       that it is fundamentally unfair to promise an arrested person that his silence will

       not be used against him and thereafter to breach that promise by using the

       silence to impeach his trial testimony.” Lynch v. State, 632 N.E.2d 341, 342 (Ind.

       1994) (citation omitted).


[29]   A mistrial is an extreme remedy warranted only when no other curative

       measure will rectify the situation. Evans v. State, 855 N.E.2d 378, 385 (Ind. Ct.

       App. 2006), trans. denied. Because the trial court is in the best position to gauge

       the circumstances surrounding an event and their impact on the jury, we review

       its decision to deny a mistrial for an abuse of discretion. And a Doyle violation

       may be harmless if it is clear beyond a reasonable doubt that the error did not

       contribute to a defendant’s conviction. Sobolewski v. State, 889 N.E.2d 849, 857

       (Ind. Ct. App. 2008), trans. denied.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 13 of 16
[30]   At trial, the following exchange took place between the prosecutor and Officer

       Cyrier:


               [Prosecutor]:            Without going to what was actually seen in
                                        the video, what did you do next as a
                                        consequence?

               [Officer Cyrier]:        After the video was seen, I went back and I
                                        spoke to our suspect who at that point we
                                        believed that he had entered the building. We
                                        had told him he was under arrest, explained
                                        to him that if he wanted to talk to a detective
                                        that he could be transported to the
                                        Mishawaka Police Station and talk to a
                                        detective to explain his whereabouts and his
                                        actions of that night.

       Tr. pp. 58–59. Szabo’s counsel immediately objected and stated to the court,

       “Whether he exercised his rights not to speak to them or not cannot be

       commented upon or asked in any manner. I move for a mistrial.” Id. at 59. The

       trial court denied the motion for a mistrial, but it admonished the jury to ignore

       Officer Cyrier’s statement. Szabo now claims that the mistrial should have been

       granted because “[b]y making these comments before the jury, Officer Cyrier

       created an expectation on the part of the jury that [Szabo] would offer an

       explanation to a detective, and that by not doing so, created an implication of

       guilt.” Appellant’s Br. at 12.


[31]   We initially note that Officer Cyrier was not commenting on Szabo’s silence, or

       whether or not Szabo responded at all—he was merely explaining the actions

       he took after he watched the surveillance footage. And our supreme court has


       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 14 of 16
       explained that “comments about interviews between police and a suspect are

       hardly forbidden territory.” Trice v. State, 766 N.E.2d 1180, 1183 (Ind. 2002).


[32]   Additionally, the prosecutor did not specifically elicit this testimony, but rather

       Officer Cyrier was responding to an innocuous question about his actions after

       viewing the surveillance footage. This is not a situation where the prosecutor

       provoked testimony about a defendant’s post-Miranda silence. See Miller v. State,

       702 N.E.2d 1053, 1073 (Ind. 1998). Finally, the trial court admonished the jury

       to ignore the testimony, and the prosecutor never brought this testimony up

       again at any point during trial. See Greer v. Miller, 483 U.S. 756, 764–65,

       (1987) (finding no Doyle violation where the prosecutor asked the defendant

       why he did not tell his story when he was arrested, defense counsel objected

       and moved for mistrial, the trial court denied the motion but sustained the

       objection and instructed the jury to ignore the question, and the prosecutor

       made no subsequent mention of defendant’s silence). There was no Doyle

       violation here, and thus the trial court did not abuse its discretion by denying

       Szabo’s motion for a mistrial.


                                                 Conclusion
[33]   Based on the facts and circumstances of this case, we find that the trial court did

       not abuse its discretion when it admitted photos of video surveillance footage at

       trial, the evidence presented to the jury was sufficient to sustain Szabo’s

       conviction, the trial court did not err when it refused to give Szabo’s tendered




       Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 15 of 16
jury instruction on criminal trespass, and Officer Cyrier’s testimony during trial

did not amount to a Doyle violation. Accordingly, we affirm.


Vaidik, C.J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 71A03-1706-CR-1411 | December 19, 2017   Page 16 of 16
