MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Sep 29 2017, 5:30 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Medina Godines,                              September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1611-CR-2522
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Natalie Bokota,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         45G02-1101-FC-7



Pyle Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 1 of 11
                                        Statement of the Case
[1]   Christopher Godines (“Godines”) appeals his conviction, following a jury trial,

      for Class C felony burglary.1 Godines argues that there was insufficient

      evidence to support his burglary conviction. Because Godines’s sufficiency

      argument is merely a request to reweigh the evidence and the jury’s

      determination of witness credibility, we deny this request and affirm his

      conviction.


[2]   Affirmed.


                                                      Issue
              Whether sufficient evidence supports Godines’s Class C felony
              burglary conviction.

                                                      Facts
[3]   On January 25, 2011, around 3:00 a.m., Gary Police Corporal Roberto

      Figueroa, Jr. (“Corporal Figueroa”) was dispatched to a Speedco maintenance

      shop to investigate a reported burglary. Upon arriving at the scene, Corporal

      Figueroa discovered that the window of Speedco had been broken by a cinder

      block that remained on the floor inside the shop. While at the shop, Corporal

      Figueroa reviewed Speedco’s surveillance video from that evening. On the

      video, Corporal Figueroa saw that a white van with a luggage rack had




      1
       IND. CODE § 35-43-2-1. We note that, effective July 1, 2014, a new version of this burglary statute was
      enacted and that Class C felony burglary is now a Level 5 felony. Because Godines committed his crime in
      2011, we will apply the statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017     Page 2 of 11
      approached the store and that two individuals had exited the passenger side of

      the van, one through the front passenger door and the other through the back

      passenger sliding door. The video further revealed that after one of the

      individuals had broken the window, the other individual had entered the shop

      through the broken window, gone behind the counter, and searched the cash

      register. The video also revealed that the individual inside the shop was

      wearing a light-colored hoodie, gloves, jeans with a pattern on the back pockets,

      gym shoes with red treads, and a “do-rag” or bandana. (Tr. Vol. 2 at 107).

      Corporal Figueroa also saw on the video that after the two individuals had

      gotten back into the van, it immediately drove away from the scene.


[4]   The police broadcast a description of the van, and approximately fifty minutes

      later, Corporal Figueroa received a call that officers had stopped a van that

      matched the description. The van contained three individuals, including

      Godines, his cousin, Nico Prince (“Prince”), and Jermaine Johnson

      (“Johnson”). When Corporal Figueroa looked in the passenger seat of the van,

      he saw items, such as the gloves and bandana, that he had seen in the

      surveillance video.


[5]   Thereafter, the police transported Godines, Prince, and Johnson to the police

      station for questioning. Prince gave multiple statements to the police, including

      Detective James Nielsen (“Detective Nielsen”). Initially, Prince denied any

      involvement in the burglary. After officers told Prince that Godines had

      implicated him in the crime, Prince told the police that he would tell them “the

      real motherfuckin’ story.” (Ex. 2). Prince then admitted that he, along with

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 3 of 11
      Godines and Johnson, had participated in the burglary of Speedco.

      Specifically, Prince said that he drove the van to the Speedco, Godines threw

      the cinder block through the window, and Johnson went into the shop. Prince

      told police that he was taking Godines and Johnson home when the police

      pulled the van over.


[6]   The State then jointly charged Godines, Prince, and Johnson with Class C

      felony burglary. The State also charged Godines with Class D felony

      intimidation, alleging that he had communicated a threat to Detective Nielsen

      in retaliation for a prior lawful act.


[7]   Shortly thereafter, in September 2011, Prince entered into a plea agreement

      with the State and pled guilty to Class C felony burglary in exchange for the

      dismissal of two Class D felonies in another cause. As part of his plea

      agreement, Prince agreed to testify truthfully in Godines’s and Johnson’s trials.

      Additionally, Prince’s plea agreement provided that he would receive a four (4)

      year sentence, with all four (4) years suspended to probation.


[8]   Several years later, after extended plea negotiations and several continuances by

      Godines, the trial court held Godines’s jury trial on September 6-8, 2016.

      Godines’s defense was that he did not participate in the burglary. During

      opening statements, Godines’s counsel told the jury that the State’s case rested

      predominantly with whether or not the jury would believe Prince, who had

      previously given “different stories” about the night of the crime. (Tr. Vol. 2 at

      23).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 4 of 11
[9]    Outside the presence of the jury, the State called Prince as a witness, and he

       initially refused to go to the stand to testify. Once he got on the stand, he

       denied that he had been subpoenaed, and he told the trial court, “I ain’t no

       witness to nothing[,]” “I ain’t seen nothing, so I don’t know nothing[,]” and “I

       ain’t got nothing to say.” (Tr. Vol. 25-27). When the trial court showed the

       subpoena to Prince, he claimed that he did not know how to read. The trial

       court noted, however, that Prince had made no mention of such an inability in

       his own criminal case. The trial court read the subpoena to Prince, and Prince

       told the trial court that he was not obligated to answer questions that he did not

       want to answer. The trial court told Prince that he was, indeed, obligated to

       answer questions and reminded him that it could hold him in contempt if he

       refused to answer.


[10]   After Prince was sworn in, he denied knowing Godines or being related to him.

       Prince stated that he did not know why he was called to court as a witness, and

       he refused to answer the State’s questions. When Prince stated that he did not

       remember if he had been charged with burglary, the State presented him with

       State’s Exhibit 1, Prince’s plea agreement and stipulated factual basis. Prince

       admitted that he had signed the two documents. When the State moved to

       admit Exhibit 1 into evidence, Prince objected to the documents based on

       hearsay. Prince’s counsel stated that the documents themselves should not be

       admitted into evidence but contended that they could be used to refresh Prince’s

       recollection. The State responded that the exhibit was admissible as a recorded

       recollection because Prince had testified that he did not recall the event yet had


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 5 of 11
       admitted that he had signed the documents. The trial court agreed with the

       State that it was a past recorded recollection. The trial court also agreed with

       Prince that the actual documents would not be viewed by the jury, and it

       explained that the documents would have to be read into evidence.


[11]   Thereafter, the State read the plea agreement and stipulated factual basis into

       evidence. The factual basis provided, in relevant part, as follows:


               . . . [O]n or about January 25th, 2011, Nico M. Prince, while
               acting in concert with Christopher Godines and Jermaine
               Johnson did break and enter the building or structure of Speedco
               with intent to commit the felony of theft in it.

               On said date, Nico M. Prince drove Jermaine Johnson and
               Christopher Godines to 5225 West 26th Avenue in Gary,
               Indiana.

               . . . [W]hile at that location, Christopher Godines exited the
               vehicle and threw a brick through the window. Jermaine
               Johnson then entered the building and grabbed an item from
               under the counter. Jermaine Johnson then lifted a cash tray out
               of the cash register and then exited the building through the same
               window and got back into the vehicle.

               . . . [A]ll of these actions were observed on surveillance video. In
               addition[,] once apprehended, Nico M. Prince admitted to
               officers that he was the driver of the vehicle, and the three men
               intended and planned to commit the robbery.

               . . . [A]ll of these events occurred in Lake County, Indiana.

       (Tr. Vol. 2 at 47-48).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 6 of 11
[12]   When the State asked Prince about the plea agreement and factual basis, he

       continued to be uncooperative, denied that he had committed a burglary, and

       claimed that he did not know what he had signed when he signed the

       documents in Exhibit 1. When the State mentioned Prince’s prior statements to

       police, he testified that he had “implicated [him]self because the police [had]

       lied to [him]” by telling him that his “cousin [had] rolled over on [him].” (Tr.

       Vol. 2 at 51). When asked if Godines was his cousin, Prince refused to answer

       the question. Prince also refused to answer questions about the specific facts of

       the crime, claiming that the questions were “irrelevant.” (Tr. Vol. 2 at 52).

       After Prince continued to state that he did not remember his prior police

       statements, the State moved to play State’s Exhibit 2, the videotaped recordings

       of his January 25, 2011 police statements, as a recorded recollection to refresh

       Prince’s recollection. Godines stated that he had no objection, and the trial

       court allowed the videotaped statements to be played. Thereafter, when the

       State asked Prince to identify Godines in the courtroom, he refused.

       Ultimately, the trial court ended up finding Prince in contempt of court based

       on his refusal to answer questions.


[13]   Corporal Figueroa also testified regarding the burglary investigation at Speedco.

       Additionally, the State introduced the Speedco surveillance video, State’s

       Exhibit 27, into evidence without objection. Before closing arguments, the




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 7 of 11
       State dismissed the intimidation charge due to the unavailability of Detective

       Nielsen.2


[14]   During closing arguments, Godines’s counsel argued that the jury should not

       believe Prince’s police statement, wherein he implicated Godines in the

       burglary. Referencing the OJ Simpson trial, Godines’s counsel also argued that

       the jury should not convict Godines because the police had not conducted any

       DNA tests on the physical evidence, such as the cinder block or the bandana,

       and because the State did not introduce any physical evidence.


[15]   The jury found Godines guilty of burglary as charged. The trial court imposed

       a seven (7) year executed sentence. Godines now appeals.


                                                       Decision
[16]   Godines argues that the evidence was insufficient to support his conviction for

       Class C felony burglary.


                  When reviewing the sufficiency of the evidence to support a
                  conviction, appellate courts must consider only the probative
                  evidence and reasonable inferences supporting the verdict. It is
                  the fact-finder’s role, not that of appellate courts, to assess
                  witness credibility and weigh the evidence to determine whether
                  it is sufficient to support a conviction. To preserve this structure,
                  when appellate courts are confronted with conflicting evidence,
                  they must consider it most favorably to the trial court’s ruling.
                  Appellate courts affirm the conviction unless no reasonable fact-
                  finder would find the elements of the crime proven beyond a



       2
           Detective Nielsen was unable to testify due to a medical emergency.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 8 of 11
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. 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) (internal quotation marks

       and citations omitted) (emphasis in original).


[17]   The battery statute in effect at the time of Godines’s crime, INDIANA CODE §

       35-43-2-1, provided, in relevant part, that “[a] person who breaks and enters the

       building or structure of another person, with intent to commit a felony in it,

       commits burglary, a Class C felony.” To convict Godines as charged, the State

       was required to prove beyond a reasonable doubt that Godines broke and

       entered the structure of Speedco with intent to commit the felony of theft

       therein.


[18]   Godines contends that there was insufficient evidence to support his burglary

       conviction because “[t]here was no physical evidence [that] tied Godines to the

       scene of the crime” and because Prince, who “repudiated” his police statement,

       did not implicate Godines during his trial testimony. (Godines’s Br. 7, 9).


[19]   The State argues that Prince’s factual basis (State’s Exhibit 1) and Prince’s

       police statement (State’s Exhibit 2)—both of which reveal that Godines was

       involved in the burglary of Speedco—provided sufficient evidence to support

       Godines’s burglary conviction. Additionally, the State asserts that this evidence

       was corroborated by the following circumstantial evidence: (1) shortly after the

       crime, Godines, Prince, and Johnson were stopped in a white van like the one

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017   Page 9 of 11
       seen on the surveillance video; (2) Johnson was wearing the same clothing as

       the burglary suspect seen in the Speedco surveillance video; and (3) the white

       van contained gloves and a bandana like the ones worn by the suspect in the

       surveillance video.


[20]   Godines does not challenge the admission of Prince’s factual basis or police

       statement; nor does he deny that this evidence implicates him in the burglary.

       Instead, he contends that the evidence was contrary to Prince’s testimony that

       he was not involved in the burglary and that he had lied in his police statement.

       This argument was presented to the jury, which rejected it. Based on the jury’s

       verdict, it is evident that it did not believe Prince’s testimony that he had

       implicated himself and Godines in the crime only because the police had told

       him that Godines had “rolled over on [him].” (Tr. Vol. 2 at 51). “The

       factfinder is obliged to determine not only whom to believe, but also what

       portions of conflicting testimony to believe, and is not required to believe a

       witness’ testimony even when it is uncontradicted.” Wood v. State, 999 N.E.2d

       1054, 1064 (Ind. Ct. App. 2013) (internal citations omitted), trans. denied, cert.

       denied. The evidence presented at trial and the inferences drawn therefrom were

       sufficient for a reasonable jury to conclude that Godines was involved in the

       burglary of the Speedco. Godines’s challenge to the State’s evidence is merely a

       request to reweigh the inferences made by the jury and its determination of

       witness credibility. We deny this request and affirm his burglary conviction.

       See Ferrell v. State, 746 N.E.2d 48, 50 (Ind. 2001) (explaining that “we look to

       the evidence and reasonable inferences drawn therefrom that support the


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017 Page 10 of 11
       verdict and will affirm the conviction if there is probative evidence from which

       a reasonable jury could have found the defendant guilty beyond a reasonable

       doubt”).


[21]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2522 | September 29, 2017 Page 11 of 11
