MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                             Mar 21 2017, 8:12 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                CLERK
                                                              Indiana Supreme Court
purpose of establishing the defense of res judicata,             Court of Appeals
                                                                   and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tony L. Brown,                                          March 21, 2017

Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        79A02-1608-CR-1924
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
                                                        Judge
Appellee-Plaintiff.
                                                        Trial Court Cause No. 79D02-1510-
                                                        F5-56




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 1 of 13
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tony Brown (Brown), appeals his conviction for

      burglary, a Level 5 felony, Ind. Code § 35-43-2-1.


[2]   We affirm.


                                                   ISSUE
[3]   Brown presents one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion by declining to tender Brown’s proposed

      instruction regarding the reasonable theory of innocence to the jury.


                      FACTS AND PROCEDURAL HISTORY
[4]   At approximately 9:30 a.m. on October 7, 2015, John Dorroll (Dorroll)

      observed a suspicious man, carrying a duffle bag and a backpack, lurking in

      front of his house. From his window, Dorroll further observed the suspicious

      man walk into the alley, place his duffle bag down, and walk into his neighbor’s

      backyard. At some point, Dorroll lost sight of the man, but he reappeared in

      the alley and entered another neighbor’s backyard. Prompted by the man’s

      suspicious activities, Dorroll called 911.


[5]   Officers Stephen Pierce (Officer Pierce) and Mark Roberts (Officer Roberts) of

      the Lafayette Police Department were dispatched to the “12th and Central

      Streets” in Tippecanoe County, Indiana. (Transcript p. 86). When Officer

      Roberts arrived, he was flagged down by Dorroll who pointed him in the

      direction of the alley where he had last seen the suspicious man. Officer

      Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 2 of 13
      Roberts proceeded to drive down the alley but he did not see anyone; however,

      he noticed an abandoned duffle bag sitting on the corner of a detached garage.

      Based on his findings, Officer Roberts radioed Officer Pierce and informed him

      that he was going to the front of the house, and he then instructed Officer Pierce

      to go to the backyard area of the house on “1017 Central Street” and retrieve

      the abandoned duffle bag. (Tr. p. 87). Officer Roberts did not find anyone in

      the front of the house, nor were there any signs of a break-in. Meanwhile,

      Officer Pierce, who was in the backyard area of the house in question, observed

      a man, later identified as Brown, emerge around the back area of the garage

      wearing a backpack and carrying the suspicious duffle bag that Officer Roberts

      had initially spotted. Brown avoided eye contact with Officer Pierce and he

      indicated that he was searching for cans in the recycle bin or anything else that

      he could sell for money. At that moment, Officer Pierce radioed Officer

      Roberts to return to the back area since he had come across Brown.


[6]   When Brown was patted down for weapons, the officers found a tactical knife

      in Brown’s right pocket and a tool that could be utilized to open a locked door.

      As Officer Pierce was questioning Brown, Officer Roberts observed that the

      garage door from where Brown had emerged “was ajar and the door handle

      was very [] lo[o]se.” (Tr. p. 88). When Officer Roberts entered the garage, he

      noticed that “some things appeared to be, without ever being in that garage, . . .

      out of place.” (Tr. p. 88). Officer Roberts contacted the homeowner, Ross

      Revalee (Revalee), who was at work at the time, and requested him to come

      home. Revalee initially informed the officers that he had locked his garage


      Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 3 of 13
      door when he left for work that morning. After briefly inspecting his garage,

      Revalee informed the officers that some of the tool boxes were out of place.

      Nonetheless, because Revalee was unable to establish if anything had been

      stolen, he went back to work. In determining their next course of action, the

      officers decided to search Brown’s backpack and duffle bag. The backpack

      search yielded a micrometer, two wrench sets, a volt meter, a pocket tool, and

      an air staple gun. In the duffle bag, the officers found clothes, an expandable

      baton, a pouch containing syringes, and a “Klonopin pill”—which is classified

      as a schedule IV controlled substance. (Appellant’s App. Vol. II, p. 112).

      Based on the findings of the search, the officers contacted Revalee and

      requested him to come back to the house. Upon seeing the pile of tools,

      Revalee immediately identified them as his own, and he further stated that he

      did not give anyone permission to use his tools.


[7]   On October 14, 2015, the State filed an Information, charging Brown with

      Count I, burglary, a Level 5 felony, I.C. § 35-43-2-1; Count II, theft, a Class A

      misdemeanor, I.C. § 35-43-4-2(a); Count III, possession of a schedule IV

      controlled substance, a Class A misdemeanor, I.C. § 35-48-4-7(a); Count IV,

      possession of paraphernalia, a Class C misdemeanor, I.C. § 35-48-4-8.3(a)(1);

      and Count V, theft with a prior conviction, a Level 6 felony, I.C. § 35-43-4-2.

      In addition, the State alleged that Brown was a habitual offender. On May 9,

      2016, the State amended Count III by changing the schedule IV controlled

      substance to “Alprazolam.” (Appellant App. p. 76). On May 10, 2016, at the

      start of his jury trial, Brown agreed to plead guilty to Counts III and IV—


      Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 4 of 13
      possession of a schedule IV controlled substance, and possession of

      paraphernalia, respectively. Brown’s jury trial was bifurcated. The first phase

      involved his theft and burglary charges, and the second related to his theft with

      a prior conviction and habitual offender charge. In the preliminary jury

      instructions, the trial court instructed the jury on the presumption of innocence,

      the State’s burden to prove beyond a reasonable doubt that Brown is guilty of

      the burglary and theft charges, and the court also explained that Brown is not

      required to present any evidence to prove his innocence. Officers Pierce and

      Roberts, as well as Dorroll and Revalee testified for the State. Brown did not

      testify.


[8]   During the final jury instructions conference, the trial court stated that after

      reading Brown’s sole proposed instruction concerning circumstantial evidence,

      it recognized that the instruction tendered by Brown was “outdated” and

      indicated that it would replace that pattern instruction with the revised version.

      (Tr. p. 117). Specifically, Brown’s proposed jury instruction read as follows:

              Direct evidence means evidence that directly proves a fact, and that, if
              true, conclusively establishes that fact.


              Circumstantial evidence means evidence that proves a fact from which
              you may conclude the existence of other facts.


              It is not necessary that facts be prove[n] by direct evidence. Both
              direct evidence and circumstantial evidence are acceptable as a means
              of proof. A conviction may be based solely on circumstantial
              evidence. Where proof is by circumstantial evidence only, it must be
              so conclusive and point so convincingly to the guilt of the accused that
              the evidence excludes every reasonable theory of innocence.

      Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 5 of 13
(Appellant’s App. Vol. II, p. 50). While issuing the new instruction, the

following exchange occurred between Brown’s counsel and the trial court:

        [TRIAL COURT]: So, what I’m proposing is I’m not going to grant
        your instruction [] and I’m taking away the original proposed court’s
        instruction and replacing it with the new instruction that has been re—
        written that came out the beginning of this year.


        [DEFENSE COUNSEL] [] Okay.


        [TRIAL COURT]: It does not include all the concepts [] that you are
        looking to include . . . .


(Tr. p. 117). The trial court then proceeded to read out the new instruction on

direct and circumstantial evidence. The court’s new instruction provided:

        The parties in this case may prove a fact by one of two types of
        evidence—direct evidence or circumstantial evidence.


        Direct evidence is direct proof of a fact. Circumstantial evidence is
        indirect proof of a fact.


        For example, direct evidence that an animal ran in the snow might be
        the testimony of someone who actually saw the animal run in the
        snow. On the other hand, circumstantial evidence that an animal ran
        in the snow might be the testimony of someone who only saw the
        animal’s tracks in the snow.


        It is not necessary that any fact be prove[n] by direct evidence. You
        may consider both direct evidence and circumstantial evidence as
        proof.




Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 6 of 13
      (Appellant’s App. Vol. II, p. 43). After reading its proposed instruction, the

      trial court stated, in part, “So, this is the instruction I am proposing to give

      since it is the recommended circumstantial evidence instruction, and based on

      that [defense counsel] I’ll hear you if you want to make any further argument

      on your proposed instruction on circumstantial evidence.” (Tr. p. 118).

      Brown’s counsel, did not object to the trial court’s instruction and he stated,

      “[I]f this is what’s currently the rule, I mean the recommended - I don’t know

      anything special about this case that would prohibit us from using the regular

      instruction.” (Tr. p. 118). During the parties’ closing arguments, Brown’s

      counsel argued that the State failed to meet its burden on the burglary offense.

      Specifically, he hypothesized that it was possible that the garage door had been

      blown open by the wind and Brown simply walked into the open garage and

      took Revalee’s tools; thus, the State failed to prove the breaking and entering

      element for the burglary offense. After the jury deliberated, Brown was found

      guilty of the theft and burglary charges.


[9]   At the commencement of Brown’s second phase of his jury trial, Brown waived

      his right to a jury and agreed to plead guilty to the remaining charges; theft with

      a prior conviction and for being a habitual offender. On June 9, 2016, the trial

      court conducted Brown’s sentencing hearing. At the close of the evidence, the

      trial court merged Brown’s convictions for theft and theft with a prior

      conviction with his burglary conviction. Subsequently, the trial court sentenced

      Brown to a term of seven years for the burglary offense, which included a three-

      year enhancement, with two years suspended to probation. Additionally, the


      Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 7 of 13
       trial court sentenced Brown to concurrent sentences of sixty days for the

       possession of paraphernalia charge and one year for the possession of a

       schedule IV controlled substance offense. Brown’s aggregate sentence is seven

       years, with five years executed and two years suspended to probation.


[10]   Brown now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Brown contends that the trial court erred by refusing his tendered instruction on

       circumstantial evidence which included the reasonable theory of innocence.

       Instructing the jury is a matter assigned to the sound discretion of the trial

       court, and we review a trial court’s decisions only for an abuse of discretion.

       Smith v. State, 668 N.E.2d 661, 662 (Ind. 1996). When reviewing a challenge to

       a jury instruction, we will “considers whether the instruction correctly states the

       law, whether there was evidence in the record to support the giving of the

       instruction, and whether the substance of the tendered instruction is covered by

       other instructions . . . .” Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 2001)

       (internal citations omitted). An instruction is erroneous when, taken as a

       whole, it misstates the law or otherwise misleads the jury. Isom v. State, 31

       N.E.3d 469, 484-85 (Ind. 2015).


[12]   The State initially argues that Brown failed to object to the trial court’s final

       jury instruction on circumstantial evidence when it was offered. We agree. In

       the instant case, when the trial court informed Brown that it would replace his

       tendered instruction with an up-to-date pattern instruction on circumstantial

       Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 8 of 13
       evidence, Brown did not object, in fact, he expressly agreed to it. Because

       Brown failed to object to the jury instruction, we will only reverse if we are

       persuaded that the error here was fundamental—meaning that the erroneous

       instruction was so prejudicial as to make a fair trial impossible. Rosales v. State,

       23 N.E.3d 8, 11 (Ind.2015).


[13]   Brown initially posits that since the State’s case against him on the burglary

       offense consisted of purely circumstantial evidence, he was entitled to his

       proposed instruction on circumstantial evidence which included the reasonable

       theory of innocence. Our supreme court in Hampton v. State, 961 N.E.2d 480

       (Ind. 2012), reviewed its prior jurisprudence as to when a defendant is entitled

       (and indeed required) to receive a so-called “reasonable theory of innocence”

       jury instruction:

               When the trial court determines that the defendant’s conduct required
               for the commission of a charged offense, the actus reus, is established
               exclusively by circumstantial evidence, the jury should be instructed as
               follows: In determining whether the guilt of the accused is proven beyond a
               reasonable doubt, you should require that the proof be so conclusive and sure as
               to exclude every reasonable theory of innocence.


       Id. at 491 (emphasis in original). Where appropriate, this “reasonable theory of

       innocence instruction” provides “a safeguard urging jurors to carefully examine

       the inferences they draw from the evidence presented, thereby helping to assure

       that the jury’s reasoning is sound.” Id. at 486. It “informs the jury that if a

       reasonable theory of innocence can be made of the circumstantial evidence, then

       there exists a reasonable doubt, and the defendant is entitled to the benefit of


       Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 9 of 13
       that doubt.” Id. (emphasis in original). In Hampton, the only evidence that the

       defendant raped and murdered the victim was his DNA in her vagina, which

       plausibly could have arrived there through consensual sex. Id. at 494. Because

       that circumstantial DNA evidence was the only evidence, the trial court was

       required to give the “reasonable theory of innocence” instruction to the jury.

       Id. at 494-95.


[14]   Here, Brown only challenges the trial court’s refusal to instruct the jury on the

       last sentence of his proposed jury instruction which provided, “[W]here proof is

       by circumstantial evidence only, it must be so conclusive and point so

       convincingly to the guilt of the accused that the evidence excludes every

       reasonable theory of innocence.” (Appellant’s App. Vol. II, p. 50). In support

       of his argument, Brown contends that the evidence presented to the jury

       relating to his burglary offense was exclusively circumstantial since there was

       no eye witness to the crime.


[15]   We recognize that direct evidence is “[e]vidence that is based on personal

       knowledge or observation and that, if true, proves a fact without inference or

       presumption.” BLACK’S LAW DICTIONARY 636 (9th ed.2009). Conversely,

       circumstantial evidence is “[e]vidence based on inference and not on personal

       knowledge or observation.” Id. Indiana case law has expressed it thusly:

       “Direct evidence means evidence that directly proves a fact, without an

       inference, and which in itself, if true, conclusively establishes that fact.

       Circumstantial evidence means evidence that proves a fact from which an



       Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 10 of 13
       inference of the existence of another fact may be drawn.” Hampton, 961 N.E.2d

       489.


[16]   Brown maintains that since there was no direct evidence to prove the burglary

       charge, a reasonable theory of innocence instruction was necessary under

       Hampton. We agree. To convict Brown of a Level 5 felony burglary under

       Indiana Code section 35-43-2-1, the State was required to prove beyond a

       reasonable doubt that Brown broke and entered Revalee’s garage, with the

       intent to commit theft therein. Doroll testified that he called 911 after he

       observed a suspicious man, who was wearing a backpack and carrying a duffle

       bag, lurking in his neighborhood. Moments later, the officers who were

       dispatched in the area encountered Brown outside Revalee’s garage. One of the

       officers observed that Revalee’s garage door, closely to where Brown had

       appeared from, “was ajar and the door handle was very [] lo[o]se.” (Tr. p. 88).

       Upon searching Brown’s backpack, the officers found several tools which

       Revalee identified as belonging to him. Because there was no direct evidence of

       Brown breaking and entering Revalee’s garage, the jury nevertheless could have

       reasonably inferred from the foregoing circumstantial evidence that Brown

       committed burglary.


[17]   Notwithstanding the fact that the jury convicted Brown on the burglary offense

       absent a reasonable theory of innocence instruction as that espoused in

       Hampton, we find the instructional error was not so prejudicial such that it

       rendered an unfair trial to Brown.



       Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 11 of 13
[18]   Although the evidence proving that Brown committed burglary was

       circumstantial, it was nevertheless substantial. See Maul v. State, 731 N.E.2d

       438, 439 (Ind. 2000) (holding that a verdict may be sustained based on

       circumstantial evidence alone if that circumstantial evidence supports a

       reasonable inference of guilt). As discussed, Revalee indicated that he had

       locked his garage before he left for work on the morning of the burglary. Brown

       was seen by Dorroll—Revalee’s neighbor—looking through cars and neighbor’s

       backyard’s, and that fact prompted Dorroll to call the police. The officers who

       were dispatched in the area found Brown near Revalee’s garage, and a

       subsequent search of his backpack yielded Revalee’s tools. In his last argument,

       Brown directs our attention to his counsel closing remarks stating that it was

       possible that the garage door had been blown open by the wind, and based on

       that, he simply walked into the open garage and took Revalee’s tools. In the

       instant case, shortly before the jury retired for deliberations, the trial court

       emphasized that “statements made by the attorneys are not evidence.” (Tr. p.

       142). Our court presumes that a jury follows the instructions that it is given.

       See R.T. v. State, 848 N.E.2d 326, 332 (Ind. Ct. App. 2006), trans. denied.


[19]   Here, the trial court’s final instruction which swapped Brown’s proposed

       instruction on reasonable theory of innocence stated, in part, that “[I]t is not

       necessary that any fact be prove[n] by direct evidence. You may consider both

       direct evidence and circumstantial evidence as proof.” (Appellant’s App. Vol.

       II, p. 43). In addition, that the trial court instructed the jury of the following:

       the essential elements of the burglary offense; Brown’s presumption of


       Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 12 of 13
       innocence; that the court’s instructions are the best source in determining the

       law; and to consider all the instructions as a whole. Again, we presume that

       that a jury follows the instructions that it is given. See R.T., 848 N.E.2d at 332.

       Because there was overwhelming evidence from which the jury could

       independently conclude that Brown broke into Ravelee’s garage and stole

       Revalee’s tools, we conclude that the failure to instruct the jury on Brown’s

       proposed instruction did not render Brown’s trial unfair.


[20]   In sum, we conclude that the circumstantial evidence supports Brown’s

       burglary conviction, and that a reasonable jury would have rendered a guilty

       verdict even if Brown’s instruction on reasonable theory of innocence had been

       issued.


                                            CONCLUSION
[21]   In sum, we conclude that because Brown failed to object when the trial court

       replaced his proposed reasonable theory of innocence instruction, he waived the

       instruction error; however, waiver notwithstanding, the instruction error did not

       render his trial unfair since a reasonable jury would have still rendered a guilty

       verdict on Brown’s burglary offense based on the overwhelming evidence of

       guilt.


[22]   Affirmed.


[23]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Opinion 79A02-1608-CR-1924 | March 21, 2017   Page 13 of 13
