MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Nov 07 2017, 7:04 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                     Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eugene D. White,                                        November 7, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1705-CR-1156
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D04-1608-F4-55



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017       Page 1 of 7
[1]   Eugene D. White appeals following his convictions for Level 4 Felony

      Burglary1 and Class A Misdemeanor Resisting Law Enforcement. 2 White

      argues that there is insufficient evidence supporting the burglary conviction and

      that the sentence imposed by the trial court is inappropriate in light of the

      nature of the offenses and his character. Finding that the evidence is sufficient

      and the sentence is not inappropriate, we affirm.


                                                    Facts
[2]   Around 7:30 a.m. on August 5, 2016, Philip Adelman got up for work,

      showered, and went downstairs, where he noticed that his back door was wide

      open. As he walked through his house, Adelman discovered that his 32-inch

      television, laptop computer, backpack, and a knife were missing. The security

      bar for his back door had been removed and set aside, and a window screen was

      found in the grass outside the house. Adelman called 911.


[3]   At approximately 7:40 a.m., Fort Wayne Police Detective Arthur Billingsley

      was driving to work when he saw an individual later identified as White

      walking down the street wearing a backpack and carrying a large television.

      Detective Billingsley turned on his red and blue lights, put his car in park, and

      identified himself as a police officer, asking White if he had a moment to talk.

      White told the detective that he had just left his brother’s house, that they had




      1
          Ind. Code § 35-43-2-1.
      2
          Ind. Code § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017   Page 2 of 7
      played videogames all night, and that he was on his way to basketball practice.

      White said that he carries his television back and forth with him every time they

      play videogames. While Detective Billingsley was talking, White set down the

      television and ran away, still wearing the backpack. Police officers eventually

      apprehended White and obtained a warrant to search his backpack. Inside the

      backpack, police found a laptop computer, a power cord, a computer mouse

      and pad, and a knife. Adelman later identified these items, as well as the

      television White had been carrying, as his belongings.


[4]   On August 11, 2016, the State charged White with Level 4 felony burglary and

      Class A misdemeanor resisting law enforcement. Following a March 28, 2017,

      jury trial, the jury found White guilty as charged. On April 26, 2017, the trial

      court sentenced him to concurrent terms of ten years for burglary and one year

      for resisting law enforcement. White now appeals.


                                   Discussion and Decision
                                             I. Sufficiency
[5]   White first argues that the evidence is insufficient to support his burglary

      conviction. When reviewing a claim of insufficient evidence, we will consider

      only the evidence and reasonable inferences that support the conviction. Gray

      v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

      evidence and inferences, a reasonable jury could have found the defendant

      guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

      2009).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017   Page 3 of 7
[6]   To convict White of Level 4 felony burglary, the State was required to prove

      beyond a reasonable doubt that he broke and entered a dwelling with intent to

      commit a felony or theft in it. I.C. § 35-43-2-1. A burglary conviction may be

      sustained by circumstantial evidence alone. Allen v. State, 743 N.E.2d 1222,

      1230 (Ind. Ct. App. 2001).


[7]   White concedes that he was found in possession of items that had been stolen

      from Adelman’s residence, but argues that the evidence does not support an

      inference that he was the person who burglarized the home. The unexplained

      possession of recently stolen property provides support for an inference of guilt

      for theft of that property and will support a burglary conviction so long as there

      is evidence that there was, in fact, a burglary committed. Id. Possession of

      stolen property remains unexplained when the factfinder rejects the defendant’s

      explanation as being unworthy of credit. Id. When determining whether the

      possession was recent, we consider the length of time between the theft and the

      possession and “the circumstances of the case (such as defendant’s familiarity

      or proximity to the property at the time of the theft) and the character of the

      goods (such as whether they are readily salable and easily portable or difficult to

      dispose of and cumbersome).” Id.


[8]   Here, law enforcement discovered White walking just blocks from Adelman’s

      home before 8:00 a.m., less than thirty minutes after Adelman had discovered

      that his home was burglarized, carrying a television and other items that had

      been stolen from the home. White argues that there is no evidence establishing

      when the burglary occurred, but a reasonable factfinder could infer from the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017   Page 4 of 7
       evidence above that the burglary had occurred a short time before White was

       found walking on a nearby street carrying the stolen items. Moreover, White’s

       explanation to the detective—that he carried a large television between two

       places every time he and his brother played videogames—was implausible, and

       did not account for the stolen items in the backpack he was carrying.

       Additionally, while the detective was talking, White set down the television and

       fled, exhibiting consciousness of guilt. When considered in full, this evidence is

       sufficient to support White’s burglary conviction.


                                        II. Appropriateness
[9]    White next argues that the aggregate ten-year sentence imposed by the trial

       court is inappropriate in light of the nature of the offenses and his character

       pursuant to Indiana Appellate Rule 7(B). In considering an argument under

       Rule 7(B), we must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[10]   For White’s Level 4 felony conviction, he faced a sentence of two to twelve

       years imprisonment, with an advisory term of six years. Ind. Code § 35-50-2-

       5.5. The trial court imposed a ten-year term. For his Class A misdemeanor




       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017   Page 5 of 7
       conviction, White faced a sentence of up to one year. I.C. § 35-50-3-2. He

       received a one-year term, to be served concurrently with his burglary sentence.


[11]   With respect to the nature of the offenses, White broke into Adelman’s dwelling

       while Adelman was asleep and stole multiple items from the home. He then

       fled from law enforcement when confronted while carrying the stolen items.

       While these offenses are not the worst of the worst, we find it noteworthy that

       in 2013, White was convicted of the same character of offense—Class B felony

       burglary—and was afforded a lenient sentence that was largely suspended to

       probation.


[12]   Regarding White’s character, we note that at a relatively young age of twenty-

       six, he has already had far too many contacts with the criminal justice system,

       dating back to when he was a juvenile. As an adult, he has been convicted of

       Class B felony burglary, Class D felony auto theft, and two counts of Class A

       misdemeanor driving while suspended. He was on probation when he

       committed the offenses at issue in this appeal. White has been afforded chances

       in the past with informal probation as a juvenile and shorter jail sentences and

       probation as an adult. Despite these opportunities, White shows an inability or

       unwillingness to conform his behavior to the rule of law. Under these

       circumstances, we do not find that the aggregate ten-year sentence imposed by

       the trial court is inappropriate in light of the nature of the offenses and his

       character.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017   Page 6 of 7
[13]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1156 | November 7, 2017   Page 7 of 7
