      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                             May 08 2019, 9:23 am

      court except for the purpose of establishing                               CLERK
      the defense of res judicata, collateral                                Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
      estoppel, or the law of the case.


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

                                                               Matthew B. Mackenzie
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      James Jacobs,                                            May 8, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2031
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      State of Indiana,                                        The Honorable Jane Woodward
      Appellee-Plaintiff.                                      Miller, Judge
                                                               Trial Court Cause No.
                                                               71D01-1803-F5-55



      Friedlander, Senior Judge.


[1]   James Jacobs appeals his convictions of burglary and attempted burglary. We

      affirm.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019                    Page 1 of 9
[2]   Jacobs presents two issues for our review, which we restate as:


              1. Whether there was sufficient evidence to sustain his
              convictions.


              2. Whether the trial court erred when it responded to a question
              from the jury during deliberations.


[3]   Some time between 11:00 p.m. on March 12, 2018 and 12:00 a.m. on March

      13, Jacobs was dropped off at a Motel 6 in Roseland, Indiana by his cousin,

      who paid for Jacobs’ room for the night. Jacobs had been living with his

      cousin, but the living arrangement ended due to Jacobs’ drinking.


[4]   At approximately 8:00 a.m. on March 13, Aaron Catanzarite, Roseland Chief

      of Police, was dispatched to CarX where he observed a panel missing from one

      of the garage doors. The garage had been ransacked and items, including tools

      and a laptop, were missing. He was then dispatched to Affordable Auto, where

      he observed that a glass door had been shattered. Like CarX, the office of

      Affordable Auto had been ransacked and items were missing, notably a large

      gray and blue toolbox.


[5]   Chief Catanzarite was then called to go to Cheers Lounge regarding an

      attempted burglary. Cheers Lounge is located across the street from the Motel

      6 where Jacobs had stayed the previous night. Surveillance video showed a

      man removing wooden fence panels, entering Cheers’ patio area, and

      attempting to gain access through the back door of the lounge. After reviewing

      Cheers’ surveillance video, the Chief and his Assistant Chief, Timothy Witham,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019   Page 2 of 9
      noticed a man at the bus stop out in front of Cheers. He was wearing the same

      clothes as the man they had seen in the surveillance video, and he was sitting

      on a large blue and gray toolbox like the one taken from Affordable Auto just a

      few hours earlier. Upon investigation, the man, whom the officers identified as

      Jacobs, also had a sleeping bag with him. A search of the sleeping bag revealed

      it contained items reported stolen from CarX and Affordable Auto.


[6]   Jacobs was arrested and charged with two counts of burglary, both as Level 5
                    1                                                               2
      felonies, and one count of attempted burglary, as a Level 5 felony. At a jury

      trial, Jacobs testified that after leaving Cheers and walking to his uncle’s house,

      he encountered a man having car trouble who asked if he would like to buy

      some tools. Jacobs testified that he bought a toolbox, tools, and a laptop for

      $65 and that he asked the man for a receipt. Jacobs then introduced, and the

      trial court admitted, a handwritten receipt signed with the name “Tim

      McDonald.” See Ex. Vol. 3, p. 48. Jacobs further testified that he had the

      receipt in his pocket when he was arrested. During deliberations, the jury asked

      a question about the receipt, and the court responded that it was unable to

      answer the question. The jury convicted Jacobs on all counts, and the trial

      court sentenced him to five years on each count, to be served concurrently.

      Jacobs now appeals.




      1
          Ind. Code § 35-43-2-1 (2014).
      2
          Id.; Ind. Code § 35-41-5-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019       Page 3 of 9
[7]   Jacobs first contends that the evidence is insufficient to support his convictions.

      When we review a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

      State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider

      only the evidence most favorable to the verdict and any reasonable inferences

      drawn therefrom. Id. If there is substantial evidence of probative value from

      which a reasonable fact-finder could have found the defendant guilty beyond a

      reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d

      501 (Ind. Ct. App. 2015). Further, it is not necessary that the evidence

      overcome every reasonable hypothesis of innocence. Tongate v. State, 954

      N.E.2d 494 (Ind. Ct. App. 2011), trans. denied (2012).


[8]   Jacobs does not challenge any specific element of the offenses that were

      required to be proven by the State beyond a reasonable doubt. Instead, he

      argues that he presented a credible, unrefuted explanation for his possession of

      the stolen items, and, besides the fact that he was found at the bus stop outside

      Cheers with the stolen property, there was no evidence to implicate him in the

      burglaries.


[9]   A burglary conviction may be sustained by circumstantial evidence. Allen v.

      State, 743 N.E.2d 1222 (Ind. Ct. App. 2001), trans. denied. The unexplained

      possession of recently stolen property will support a burglary conviction

      providing there is evidence that there was in fact a burglary committed. Id.

      Further, possession remains unexplained when the trier of fact rejects the

      defendant’s explanation as being unworthy of credit. Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019   Page 4 of 9
[10]   Essentially, Jacobs asks us to reevaluate the credibility of the witnesses and

       reweigh the evidence, which we cannot do. The State presented the

       surveillance video of Jacobs removing the wooden fence panels and attempting

       to open the back door of Cheers. In his testimony, Jacobs admitted to pulling

       down the panels and checking the back door to see if it was open because he

       “was still wanting a beer.” Tr. Vol. 2, pp. 119-20. The State’s evidence

       additionally showed that, nearby on the same night, both CarX and Affordable

       Auto were burglarized. Less than twenty-four hours later, Jacobs was found in

       the same clothes he had been wearing when he attempted to enter Cheers the

       night before, sitting at a bus stop in front of Cheers across the street from the

       motel where he had stayed the previous night. In addition, he was in

       possession of the items that had been stolen from CarX and Affordable Auto.


[11]   Jacobs’ self-serving explanation that he unknowingly purchased the stolen

       property from a stranded motorist and that the man wrote a receipt for the

       items in the middle of the night, while inventive, is implausible. It was well

       within the jury’s province to deem this evidence unworthy of credit. Brasher v.

       State, 746 N.E.2d 71 (Ind. 2001) (stating it is within jury’s province to judge

       credibility of witnesses). Sufficient evidence supported Jacobs’ convictions.


[12]   For his second allegation of error, Jacobs claims the court erred when it

       responded to a jury question during deliberations. The pertinent portion of the

       trial transcript is as follows:


               THE COURT: We’re back on the record. It’s about 3:30. The
               case went to the jury at about two o’clock. Maybe ten minutes

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019   Page 5 of 9
               ago we received this note. Did the State know of the defendant’s
               Exhibit B [handwritten receipt] before today? I would propose
               responding: I am unable to answer your question. All the
               evidence that will be presented has already been provided to you.
               Any problem with that, State?


               [STATE]: I’m fine with that.


               THE COURT: How about you, [Defense Counsel]?


               [DEFENSE COUNSEL]: I guess that’s okay other than maybe
               parties exchange lists of witnesses and exhibits before trial.
               They’re asking whether they knew about the exhibit before the
               trial. That’s their question.


               THE COURT: Yes.


               [DEFENSE COUNSEL]: Well, whatever.


               THE COURT: I don’t think I should start answering the
               question after telling them that I can’t.


               [DEFENSE COUNSEL]: Okay.


       Tr. Vol. 2, p. 168.


[13]   Jacobs failed to adequately preserve this issue for our review by failing to object

       when the trial court presented the jury’s question to counsel and asked if they

       approved of its proposed response. See Butler v. State, 622 N.E.2d 1035 (Ind. Ct.

       App. 1993) (defendant waived for appeal court’s alleged error in responding to

       jury questions during deliberations when he failed to adequately object at time

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019   Page 6 of 9
       answers were sent back to jury), trans. denied (1994). Here, Jacobs did not just

       fail to object; he affirmatively acquiesced in the court’s response.


[14]   Waiver notwithstanding, Jacobs’ claim fails. In support of his argument,

       Jacobs cites Indiana Code section 34-1-21-6. That statute was recodified at

       Indiana Code section 34-36-1-6 in 1998 with no material difference in the

       language of the two versions. See Fields v. State, 972 N.E.2d 977, 981 n.1 (Ind.

       Ct. App. 2012), trans. denied. The current statute provides:


               If, after the jury retires for deliberation:


               (1) there is a disagreement among the jurors as to any part of the
               testimony; or


               (2) the jury desires to be informed as to any point of law arising
               in the case;


               the jury may request the officer to conduct them into court,
               where the information required shall be given in the presence of,
               or after notice to, the parties or the attorneys representing the
               parties.


       Ind. Code § 34-36-1-6. Our Supreme Court has clarified that Section 34-36-1-6

       is triggered only where (1) the jurors explicitly indicate a disagreement as to any

       part of the testimony or (2) the jurors desire to be informed as to any point of

       law. Bouye v. State, 699 N.E.2d 620 (Ind. 1998). The phrase “any point of law

       arising in the case” is narrowly construed and mandates that the trial court

       provide a discrete answer only when the jury question points to an error or


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019   Page 7 of 9
       “legal lacuna” in the final instructions. Fields, 972 N.E.2d at 980 (emphasis

       added).


[15]   Jacobs acknowledges that the procedure set forth in Section 34-36-1-6 is

       mandatory in only the two instances listed there, and he concedes that in the

       present case the jury expressed no disagreement as to any testimony. He

       asserts, however, that the jury’s question concerning the receipt constitutes a

       desire to be informed as to a point of law and that, as such, the court was

       required to answer the question.


[16]   Contrary to Jacobs’ contention, given the narrow construction of the statutory

       phrase “any point of law arising in the case,” we cannot say the jury’s question

       in this case falls into that category. Therefore, the mandatory language of

       Section 34-36-1-6 does not apply here, and the court could exercise its

       discretion in determining whether to provide the requested information. Foster

       v. State, 698 N.E.2d 1166 (Ind. 1998).


[17]   There is nothing in the record reflecting an abuse of discretion by the court in

       declining to answer the question. The parties presented all the evidence to the

       jury and instructed them as to the applicable law, and Jacobs does not assert

       that the court’s instructions were erroneous. Thus, on the record before us, we

       conclude the trial court did not abuse its discretion when it declined to answer

       the jury’s question and simply referred the jury to the evidence that had been

       presented.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019   Page 8 of 9
[18]   For the reasons stated, we conclude the evidence was sufficient to support

       Jacobs’ convictions and that the trial court did not err when it declined to

       answer the jury’s question.


[19]   Judgment affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2031 | May 8, 2019   Page 9 of 9
