MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Aug 05 2016, 5:51 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marce Gonzalez, Jr.                                      Gregory F. Zoeller
Dyer, Indiana                                            Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Eubanks,                                           August 5, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1512-CR-2347
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1409-F5-23



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2347 | August 5, 2016     Page 1 of 6
[1]   James Eubanks appeals his conviction for Burglary, a Level 5 felony.1 He

      argues that there is insufficient evidence supporting the conviction. Finding the

      evidence sufficient, we affirm.


                                                     Facts

[2]   During the relevant time frame, Robert Mardis owned an unoccupied rental

      home in Hammond. In early September 2014, Mardis went to work on the

      unoccupied property and saw no damage to the residence’s back door.


[3]   About two weeks later, on September 24, Officer Frank Eggers of the

      Hammond Police Department received a dispatch call to Mardis’s rental home.

      The caller reported “a black male wearing a Comcast type worker vest [that]

      went into a residence at the 6433 Van Buren [property] through the back door

      and was possibly taking items.” Tr. p. 25. When he arrived at the property,

      Officer Eggers observed that a window directly above the back door’s handle

      had been broken out, allowing easy access to the door handle and entrance into

      the building. He also noticed two other items: a bicycle near the back foyer

      area and a bag full of cut copper piping. All of this led Officer Eggers, an

      evidence technician, to believe that a crime had occurred. He then attempted to

      locate the owner of the property, but was unsuccessful. Predicting that a

      suspect would return for the bicycle and bag, Officer Eggers “punctured the rear




      1
          Ind. Code § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2347 | August 5, 2016   Page 2 of 6
      tire of the bicycle to make it difficult for that subject or subjects to leave.” Id. at

      28. He also took the bag, went inside the residence, and spread the scrap metal

      around the residence’s basement. After he exited the residence, Officer Eggers

      closed and locked the back door. He then left the scene.


[4]   Thirty minutes later, Officer Eggers was dispatched again to the property on a

      new report describing similar activity. The caller stated that the same male,

      wearing the Comcast vest, was leaving the residence with a garbage can and

      was walking down an adjacent alley. When Officer Eggers arrived, he saw that

      another policeman, Corporal John Riordan, already had the suspect, later

      identified as Eubanks, in custody. Officer Eggers noticed that the garbage can

      in Eubanks’s possession held the same scrap metal that the officer had spread

      around the residence’s basement. Moreover, Eubanks was carrying with him

      the bicycle that Officer Eggers had seen at the property and was also wearing a

      Comcast vest.


[5]   Eubanks was then arrested and transported to jail by Corporal Riordan. During

      the ride, Eubanks asked what charges he was facing. Corporal Riordan told

      Eubanks that he was facing a burglary charge; in response, Eubanks stated that

      “he didn’t know it was a burglary if the house was abandoned.” Id. at 67. In a

      later interview and after being advised of his Miranda2 rights, Eubanks admitted




      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2347 | August 5, 2016   Page 3 of 6
      to entering the residence and taking scrap metal, but claimed that the back door

      was open when he went to the property both times.


[6]   On October 31, 2015, the trial court found Eubanks guilty of Level 5 burglary

      following a bench trial. After finding Eubanks to be a habitual offender, the

      trial court sentenced him to an aggregate term of six years of incarceration.

      Eubanks now appeals.


                                   Discussion and Decision

[7]   Eubanks argues that there is insufficient evidence supporting the conviction.

      When reviewing a claim of insufficient evidence, we do not reweigh the

      evidence, nor do we judge the credibility of witnesses. McHenry v. State, 820

      N.E.2d 124, 126 (Ind. 2005). Rather, we will affirm a conviction if any

      reasonable juror could find the defendant guilty beyond a reasonable doubt

      based on the probative evidence and reasonable inferences. Bailey v. State, 907

      N.E.2d 1003, 1005 (Ind. 2009) (citing Henley v. State, 881 N.E.2d 639, 652 (Ind.

      2008)). To convict Eubanks of Level 5 felony burglary, the State was required

      to prove beyond a reasonable doubt that he broke and entered into Mardis’s

      building with the intent to commit a felony or theft therein. Ind. Code § 35-43-

      2-1.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2347 | August 5, 2016   Page 4 of 6
[8]   Eubanks asserts that the evidence is insufficient to prove that he broke and

      entered the home, as he maintains that the door was open when he entered. 3

      The evidence in the record establishes that Eubanks admitted to entering the

      home and stealing scrap metal from it. Tr. p. 89–93. Officer Eggers testified

      that, thirty minutes before Eubanks entered the home, the officer had closed

      and locked the door. When Eubanks was arrested, he had items in his

      possession that Officer Eggers had left inside the locked house. And Eubanks’s

      description, including the Comcast vest he was wearing, matched the

      description of the suspect. Eubanks is asking that we credit his version of

      events over the officers’—in other words, he asks us to reweigh the evidence

      and reassess witness credibility. We decline to do so. We find that the

      evidence readily supports the conviction for burglary.


[9]   Eubanks further argues that the incredible dubiosity rule renders the evidence

      insufficient. This argument is unavailing. This limited exception recognizes

      that, in very rare cases, a witness’s credibility is so untrustworthy and lacking as

      to justify reversal on appeal. See Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015).

      Notably, our Supreme Court has recently reemphasized that we should only

      invoke the incredible dubiosity exception “where a sole witness presents

      inherently contradictory testimony which is equivocal or the result of coercion

      and there is a complete lack of circumstantial evidence of the appellant’s guilt.” Id.



      3
       Our Supreme Court has recognized that walking through an open door does not constitute a “breaking,”
      which is an element for proving the crime of burglary. E.g., Passwater v. State, 248 Ind. 454, 458, 229 N.E.2d
      718, 720 (Ind. 1967).

      Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2347 | August 5, 2016               Page 5 of 6
       (emphases in original). Eubanks concedes that the rule does not apply in this

       case, as more than one witness testified and there is a wealth of circumstantial

       evidence of his guilt. We decline his request to broaden the rule.


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


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CR-2347 | August 5, 2016   Page 6 of 6
