MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this                         Apr 26 2018, 7:47 am
Memorandum Decision shall not be regarded as
                                                                         CLERK
precedent or cited before any court except for the                   Indiana Supreme Court
                                                                        Court of Appeals
purpose of establishing the defense of res judicata,                      and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Gary Whittington, Jr.,                                   April 26, 2018

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1708-CR-1808
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court.
State of Indiana,                                        The Honorable Michael J. Cox,
                                                         Magistrate.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         82C01-1701-F3-361



Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018        Page 1 of 14
                                             Statement of the Case
[1]   Gary Whittington, Jr., appeals his convictions of three counts of Level 5 felony
                   1                                                                   2
      robbery, three counts of Level 5 felony criminal confinement, burglary as a
                            3                                              4
      Level 4 felony, theft of a firearm as a Level 6 felony, and auto theft as a Level
                    5                                                                         6
      6 felony. He also pleaded guilty to an habitual offender enhancement. He

      alleges that there is insufficient evidence of a breaking to support his burglary

      conviction, and that the trial court committed fundamental error when it

      admitted certain testimony at trial. We affirm.


                                                    Issues
[2]   Whittington raises two issues for our review:


                 I. Whether the State presented sufficient evidence to sustain his
                 burglary conviction; and
                 II. Whether the trial court committed fundamental error in
                 admitting certain testimony at trial.




      1
          Ind. Code § 35-42-5-1(1) (2014).
      2
          Ind. Code § 35-42-3-3 (2014).
      3
          Ind. Code § 35-43-2-1 (2014).
      4
          Ind. Code § 35-43-4-2 (2014).
      5
          Ind. Code § 35-43-4-2.5 (2014).
      6
          Ind. Code § 35-50-2-8 (2015).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 2 of 14
                               Facts and Procedural History
[3]   Henry Doyle, who worked for Professional Transportation Incorporated (PTI),

      was driving a company-issued van used to transport railroad crews to trains.

      The van was equipped with a GPS unit and a drive camera. On January 16,

      2017, around 6:30 p.m., Doyle transported Edward Fogarty and Robert Jones,

      two CSX Transportation employees, to an area just outside of a railroad yard

      located in Evansville, Indiana, so that the two could board a train. Doyle

      parked the van to wait for the train. The van was parked for about ten minutes

      when Jones, who was sitting in the front passenger seat, saw the barrel of a rifle

      tap on the window.


[4]   Doyle, Jones, and Fogarty were ordered by two men to exit the van. One man,

      later identified as Whittington, was armed with an assault rifle. The other man,

      later identified as Whittington’s twenty-one-year-old son, was wearing a mask

      and appeared to be armed with a handgun. Whittington told Doyle, Jones, and

      Fogarty to put their identification and hands on the hood of the van and then

      took their identification, wallets, and cell phones. Whittington then told the

      men, “[I]t’s your lucky day, I’m going to let you live,” and ordered them to

      walk along the railroad tracks. Tr. Vol. II, p. 146.


[5]   Doyle, Jones, and Fogarty complied; however, once they saw the van drive off,

      they turned around and walked to a nearby house to seek assistance. The

      homeowners called 911, and deputies from the Vanderburgh County Sheriff’s




      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 3 of 14
      Department (“VCSD”) responded at around 6:50 p.m. The three men were

      transported to the VCSD to give statements.


[6]   Glen Smith owned a lawn care business in Evansville, and the business was

      located on the same property as his residence. An exterior door led from the

      driveway into Smith’s garage. A nearby second, interior door separated the

      garage from the kitchen. Smith kept the interior door locked, but did not lock

      the exterior door.


[7]   At around 1:30 a.m., on January 17, 2017, Smith was sleeping in a recliner in

      his living room because he recently had undergone shoulder surgery. His wife

      was asleep in the bedroom. Both Smith and his wife woke to a loud noise that

      was followed by three loud banging sounds. Smith turned on the lights and saw

      two figures in the garage. He started yelling “get out of here, call 911, get out of

      here, call 911.” Id. at 187. Smith then called 911. He noticed that the glass

      window in the interior door between the garage and the kitchen was broken but

      that the exterior door to the garage was closed. Smith’s wife testified that the

      exterior door would have been closed that night because it was January.


[8]   VCSD deputies arrived approximately eleven minutes after the 911 call was

      placed, but the two individuals in the garage had already fled. The Smiths

      discovered that a .22 caliber rifle was stolen from their garage, and a hunting

      crossbow had been moved to a different location in the garage. Smith told the

      deputies that he had surveillance cameras located on his property. Surveillance

      video showed a PTI van entering the Smiths’ property and parking and two


      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 4 of 14
       individuals exiting the van – one armed with a rifle. The video also showed the

       same van leaving the property.


[9]    Whittington was a former employee of Smith’s lawn care business from

       September of 2012 until June of 2015. He left his employment after a dispute

       with Smith. Two current employees of the lawn care business watched the

       January 17th surveillance video and identified Whittington as one of the

       individuals in the footage.


[10]   On the evening of January 17, 2017, Whittington and his son were arrested at

       the home of Whittington’s mother. Whittington’s mother gave permission for

       her home to be searched. A black backpack and black cargo pants were found

       in the basement. Inside the backpack, which was searched after obtaining a

       search warrant, were rubber gloves, a black eye patch, a leather holster without

       a gun, and a cigarette lighter that resembled a gun.


[11]   Whittington’s son told law enforcement where the PTI van was located and

       helped law enforcement locate the .22 caliber rifle that was taken from the

       Smiths’ garage. The drive camera that was installed in the van and the GPS

       unit were recovered. Whittington was depicted on the drive camera footage.

       Jones, one of the victims of the robbery, was shown a photographic lineup and

       positively identified Whittington as the individual that robbed the group at

       gunpoint and pointed a rifle at him.


[12]   On January 20, 2017, the State charged Whittington with three counts of Level

       3 felony armed robbery, three counts of Level 3 felony criminal confinement,

       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 5 of 14
       Level 4 felony burglary, Level 6 felony theft of a firearm with a sentencing

       enhancement based on his use of a firearm, Level 6 felony auto theft, and an

       habitual offender enhancement.


[13]   A jury trial was held on May 22 through May 25, 2017. At trial, Whittington’s

       son testified that he and Whittington stole the PTI van and that Whittington

       drove the van to the Smiths’ home; that it was Whittington’s idea to break into

       the Smiths’ home to take money; and that while it was Whittington’s idea to

       steal the van and break into the home, Whittington’s son was a willing

       participant.


[14]   A jury found Whittington guilty of three counts of Level 5 felony robbery, three

       counts of Level 6 felony criminal confinement, Level 4 felony burglary, Level 6

       felony theft of a firearm, and Level 6 felony auto theft. Whittington pleaded

       guilty to the habitual offender enhancement, and the State dismissed the firearm

       enhancement. The trial court sentenced Whittington to seven years for his

       Level 5 felony robbery convictions, two and one-half years for his Level 6

       felony criminal confinement convictions, twenty-six years for his Level 4

       burglary conviction with the habitual offender enhancement, one year for his

       Level 6 felony theft of a firearm conviction, and one year for his Level 6 felony

       auto theft conviction. The sentences were to run concurrently for an aggregate

       term of twenty-six years. Whittington now appeals.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 6 of 14
                                    Discussion and Decision
                                        I. Sufficiency of the Evidence

[15]   Whittington first argues there was insufficient evidence to support his

       conviction for Level 4 felony burglary. Our standard of review for sufficiency

       of the evidence is well settled. On a challenge to the sufficiency of evidence to

       support a conviction, a reviewing court does not reweigh the evidence or judge

       the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). This Court respects the jury’s exclusive province to weigh conflicting

       evidence. Id. It considers only the evidence most favorable to the verdict. Id.

       This Court must affirm if the evidence and reasonable inferences drawn from

       the evidence could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. Id.


[16]   In order to convict Whittington of Level 4 felony burglary, the State was

       required to prove beyond a reasonable doubt that he broke and entered a

       building or structure that is a dwelling of another person with the intent to

       commit a felony or theft in it. Ind. Code § 35-43-2-1(1) (2014). According to

       Whittington, the State failed to present evidence of a “breaking.” Whittington

       specifically argues the State failed to present evidence of how he and his son

       entered the Smiths’ garage, and evidence that Whittington actually “entered”

       the Smiths’ kitchen.


[17]   Our supreme court has held that walking through an open door does not

       establish “breaking”; however, breaking is established when even the slightest


       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 7 of 14
       force is used to gain unauthorized entry, such as opening an unlocked door.

       See Cockerham v. State, 246 Ind. 303, 307, 204 N.E.2d 654, 657 (1965); Smith v.

       State, 535 N.E.2d 117, 118 (Ind. 1989) (citing Trice v. State, 490 N.E.2d 757,

       758-59 (Ind. 1986)). The element of breaking may be proved entirely by

       circumstantial evidence. Utley v. State, 589 N.E.2d 232, 240-41 (Ind. 1992).


[18]   We find from the evidence presented at trial, the jury could reasonably have

       inferred that Whittington and his son opened the unlocked, exterior door to the

       Smiths’ garage and then entered. Smith’s wife testified that the exterior door

       would have been closed because it was January at the time the incident took

       place. The garage did contain a window; however, evidence was presented

       showing that on the night of the incident, the window was closed and a potted

       plant located in the garage, just inside of the window, had not been knocked

       over. Whittington’s son testified that he and his father entered the Smiths’

       garage and waited in the garage for the Smiths to go to sleep and that

       Whittington eventually took the butt of his rifle and smashed the window of the

       interior door that separated the Smiths’ garage from their kitchen. Smith’s wife

       testified that the deadbolt in the interior door was in the “unlock position,” but

       previously had been in a locked position. Tr. Vol. II, p. 171. Whether the State

       presented evidence that Whittington actually “entered” the Smiths’ kitchen

       from the garage is of no moment, as sufficient evidence was presented to

       establish Whittington broke and entered the Smiths’ garage.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 8 of 14
                                            II. Character Evidence

[19]   Whittington asserts fundamental error occurred when the trial court admitted

       testimony from two witnesses recounting Whittington’s statements when he

       quit his job with Smith’s lawn care business. We typically review rulings on the

       admission of evidence for an abuse of discretion. Pavlovich v. State, 6 N.E.3d

       969, 975 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs if the

       trial court misinterpreted the law or if its decision was clearly against the logic

       and effect of the facts and circumstances before it. Id.


[20]   Whittington, however, did not object at trial to the testimony he now challenges

       on appeal. Failure to object at trial waives the issue on review unless

       fundamental error occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013).

       Fundamental error is an extremely narrow exception that applies only when the

       error amounts to a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process. Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The claimed

       error must be so prejudicial to the rights of a defendant as to make a fair trial

       impossible. Taylor v. State, 717 N.E.2d 90, 93 (Ind. 1999). “This exception is

       available only in egregious circumstances.” Halliburton, 1 N.E.3d at 678

       (internal quotation marks omitted).


[21]   Specifically, Whittington challenges the following testimony from Smith, his

       former boss, regarding statements Whittington made when he quit:




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 9 of 14
        [Whittington] didn’t get demoted, he didn’t get a pay raise, at the
        time he was making $15 an hour for me. He proceeded then to
        tell me that all I do is F all my employees and take advantage of
        them, I’m the rich white guy up on the hill, F’g all his employees,
        and at that time I told him it was time for him to leave. He kept
        yelling and I had to threaten that I was going to call 911 if he
        didn’t leave, and as he was leaving he was like, just give my
        paycheck to, I forget who he said, so and so, I don’t need the
        money, they need it more because all you do is F your
        employees.


Tr. Vol. II, p. 193. He also challenges the following testimony elicited from

Russell Alvey, one of Smith’s employees, when the State asked Alvey if he

recalled the day Whittington quit the lawn care business:


        Yes, that morning he came to work and he came in the office and
        he sat down and basically said he wanted to talk to me and Glen
        and he had asked for a, he had told us that he thought he
        deserved a $2 an hour raise and we denied that, and he stood up
        and he said, well consider today my last day or my two weeks
        [sic] notice, and he walked out of the office and then he turned
        around and walked right back in and he said, you know what,
        today is my last day, I quit, and walked out of the office and
        started calling the owner of the company several names and
        walked out of the shop, handed another employee $300 and said,
        you deserve this because you’re not going to make that kind of
        money working for this guy, and basically we had to ask him to
        get off the property before we called the law.


Id. at 244. Whittington claims the testimony was inadmissible character

evidence barred by Indiana Evidence Rule 404(a). According to Whittington,

the testimony “clearly painted Whittington as a criminal with an explosive,



Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 10 of 14
       unpredictable, and violent personality” and that commission of the instant

       offenses was consistent with that character. Appellant’s Br. p. 18.


[22]   Indiana Evidence Rule 404(a) prohibits using evidence of a defendant’s

       “character or character trait . . . to prove that on a particular occasion the

       person acted in accordance with that character or trait.” This rule is meant to

       deter a jury from pursuing a path of reasoning that leads to “the forbidden

       inference,” which is that a defendant is guilty of the alleged crime because the

       defendant possesses a bad character trait. Herrera v. State, 710 N.E.2d 931, 935

       (Ind. Ct. App. 1999).


[23]   In support of his arguments, Whittington equates his case to Oldham v.

       State, 779 N.E.2d 1162 (Ind. Ct. App. 2002), trans. denied. Oldham was

       convicted of murder and carrying a handgun without a license. At trial, the

       State introduced novelty photos of Oldham with text reading, “America’s Most

       Wanted,” “Wanted for: robbery, assault, arson, jaywalking,” “Considered

       armed and dangerous,” and “Approach with extreme caution.” Id. at 1171.

       On appeal, Oldham asserted the admission of that evidence was fundamental

       error that prejudiced the jury against him.


[24]   The State argued it had introduced the evidence to prove a shirt in the

       proximity of those pictures was Oldham’s shirt, but we determined the State

       was using the photographs to suggest Oldham was dangerous. Because the

       manner in which the State introduced the evidence suggested Oldham had the

       characteristics of one who would have guns and kill another person, its


       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 11 of 14
       introduction would require Oldham to refute not only the charged crimes but

       also the character evidence. Id. at 1173. As such, we found the admission of

       the evidence was fundamental error. Id. at 1174.


[25]   Whittington also relies on Rhodes v. State, 771 N.E.2d 1246 (Ind. Ct. App.

       2002), trans. denied. In Rhodes, this court concluded that the “introduction of

       improper character evidence was so blatant and so pervasive that it rendered a

       fair trial impossible” because the State introduced a “flood” of irrelevant

       character evidence at trial. 771 N.E.2d at 1256. In reaching this conclusion,

       we noted as follows:


               [the State’s] case in chief seemed to be a focused inquiry into
               [defendant]’s and [defense witness]’s prior misconduct. From
               inquiries into [defendant]’s driving convictions, alcohol
               problems, and history of domestic violence to questions
               concerning the legitimacy of [defendant] and [defense witness]’s
               child and the circumstances surrounding [defense witness]’s
               divorce, the Prosecution made a trial about a driving violation
               into one about [defendant]’s and [defense witness]’s character.


       Id. We concluded that the admission of the “flood” of irrelevant character

       evidence constituted fundamental error. Our conclusion, however, was not

       based solely upon the admission of the defendant’s driving record, but rather on

       the “flood of irrelevant and prejudicial evidence” that “did not just make a fair

       trial unlikely, it made it impossible.” Id.


[26]   Here, the testimony regarding statements made when Whittington quit his

       employment was relevant, and there was no flood of irrelevant character


       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 12 of 14
       evidence. Thus, Oldham and Rhodes are distinguishable. The testimony was not

       offered to prove Whittington acted in accordance with his character but instead

       was offered under Indiana Evidence Rule 404(b) to prove motive for targeting
                                            7
       Smith’s house for burglary. Pre-trial, the State filed a notice of Indiana

       Evidence Rule 404(b) evidence, indicating that it intended to introduce

       evidence regarding Whittington’s resignation from his employment with Smith.

       Additionally, defense counsel elicited testimony at trial that Whittington was a

       good employee and that, at one point, Smith “probably” would have rehired

       Whittington if Whittington had asked. Tr. Vol. II, p. 208. Furthermore, the

       evidence against Whittington was overwhelming, and the admission of the

       404(b) testimony had no prejudicial impact on the jury. The admission of the

       testimony was not fundamental error.


                                                   Conclusion
[27]   Sufficient evidence was presented to support Whittington’s conviction for

       burglary, and the admission of the challenged testimony was not fundamental

       error. The judgment of the trial court is affirmed.


[28]   Affirmed.




       7
        Indiana Evidence Rule 404(b) prohibits the use of a defendant’s “crime, wrong, or other act . . . to prove a
       person’s character in order to show that on a particular occasion the person acted in accordance with the
       character”; however, the evidence “may be admissible for another purpose, such as proving motive,
       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018            Page 13 of 14
May, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1808 | April 26, 2018   Page 14 of 14
