Gerald v. State

• Decision Date: 21 September 2011
• Docket Number: No. 20A03-1101-CR-49,20A03-1101-CR-49
• Parties: JAMES GERALD, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

JAMES GERALD, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 20A03-1101-CR-49

COURT OF APPEALS OF INDIANA

SEPTEMBER 21, 2011

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of

establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

GARY L. GRINER

Mishawaka, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

Indianapolis, Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE ELKHART CIRCUIT COURT

The Honorable Terry Shewmaker, Judge

Cause No. 20C01-1001-FB-3

MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge James Gerald appeals his conviction for Class B felony burglary, Ind. Code § 35-43-2-1(1)(B)(i) (1999), and his adjudication as a habitual offender, Ind. Code § 35-50-2-8 (2005). He contends that his right to a speedy trial was violated, the trial court committed fundamental error by failing to instruct the jury on the underlying felony of theft, and the evidence is insufficient to sustain his burglary conviction. We affirm.

On September 7, 2009, Gerald, Corey Stout, Gregory Kirk, and two other friends were in Elkhart County driving around in Stout's car. Later that night, Gerald, Stout, and Kirk dropped off the two friends at their house on Tulip Tree Lane and headed to Kirk's mother's house a couple of streets away on Wild Cherry Lane, where Kirk and Stout were living at the time. When Gerald said he had no place to stay, Stout left his keys in the car and told Gerald he could sleep in it. See Tr. p. 157 ("I let him sleep in it, and the keys were there so, like, he could go and -- he could go somewhere and park and sleep, you know."). Stout then went into the house to go to bed. Kirk drank with Gerald in Stout's car for about a half hour and then went into the house to go to bed. It was around midnight when Kirk left Gerald outside in Stout's car.

Around 5:30 a.m. on September 8, 2009, thirteen-year-old Mackenzie Cartwright was sleeping in her house less than a quarter of a mile away on Tulip Tree Lane when she woke to the sound of her dogs barking. Someone was banging on the front door. Mackenzie looked out her front bedroom window and saw a man standing in the driveway. He was wearing a black hooded sweatshirt with the hood up and baggy blue jeans. Mackenzie suddenly realized that the man was trying to break in. Both her parents had already left for work. Scared and frantic, Mackenzie called her dad, ChrisCartwright. After Mackenzie got off the phone, she heard "a loud bang like something being broken." Id. at 88-89. She opened her window, climbed out with her phone, hid in the gap between her fence and her neighbor's fence, and called 911.

Chris arrived at the house about five minutes after Mackenzie's call, and the police arrived a few minutes later. No one was found inside the house. The deadbolt on the front door was still in the locked position but the door jamb had been broken, consistent with forced entry. A television, DVD player, laptop computer, and Wii gaming system were missing from the house.

Rob Froelich lived on Wild Cherry Lane. That morning, Froelich was running late for his 5:30 a.m. shift. He was going to his vehicle in the driveway when he heard the sound of a vehicle being driven in reverse. When the sound "kept going and going and going like somebody was backing up," Froelich walked around the corner to see what was going on. Id. at 176. He saw a car backing up around the corner and down the street into the front yard of a house. He had seen that particular car at that house before. Froelich saw only one person in the car.

Froelich got in his vehicle and left for work but was stopped by the police on Tulip Tree Lane. When the police said they needed to search his vehicle, he told them that he just saw a car backing up from the general area and that it seemed odd. Officer Adam Dernay of the Elkhart County Sheriff's Department followed Froelich back to his house, and Froelich pointed out the car. An Elkhart city police officer was already there when Officer Dernay arrived. Officer Dernay saw the car on the edge of the road in the grass with fresh tire tracks in the grass indicating that the car had pulled in recently. There wasone male in the driver's seat and no one else in the car. As Officer Dernay approached, he saw several items inside, including a television and a DVD player. The driver was asked to step out of the car, identified as James Gerald, arrested, and placed in the back of the Elkhart city police officer's vehicle. Gerald's behavior was "belligerent and unpleasant." Id. at 74.

Officer Jeremy Shotts of the Elkhart County Sheriff's Department arrived at Kirk's mother's house after Gerald had already been taken into custody. As Officer Shotts spoke with Gerald, he noticed that he was wearing a black hooded sweatshirt and baggy jeans. Gerald appeared intoxicated and was "[b]elligerent and uncooperative." Id. at 137.

Officers Shotts and Dernay went to the house and spoke with Kirk's mother. Kirk's mother said that the car belonged to her son's friend, Corey Stout. When she knocked on the door of Kirk and Stout's room, they both came out and spoke with the officers. Kirk and Stout both appeared to Officer Shotts like they had been sleeping. Stout told the officers that he owned the car and gave them permission to search it. When Officer Shotts asked about the television, DVD player, computer, and gaming system found in the car, Stout responded that those items should not be in his car. Kirk said that when he got out of the car at sometime between midnight and 12:45 a.m., those items were not in the car. Officer Shotts took the items from the car and returned them to the Cartwrights.

On September 10, 2009, the State filed an information charging Gerald with Class B felony burglary and being a habitual offender. The chronological case summary entryfor November 23, 2009, states, "Cause set for further proceedings 12/7/09 at 8:30 am. All time chargeable to the Defendant." Appellant's App. pp. 9-10. On December 7, 2009, the trial date was set for April 13, 2010. On January 8, 2010, the trial court granted the State's motion to transfer the case from Elkhart Superior Court 2 to Elkhart Circuit Court. In Elkhart Circuit Court, the trial date was set for May 3, 2010. On May 3, the court reset the trial date for May 24 due to congestion of the court calendar and unavailability of the courtroom. On May 24, the court reset the trial date for August 9 due to congestion of the court calendar and unavailability of the courtroom. On August 9, the court reset the trial date for September 27 because of the unavailability of Gerald's primary counsel due to a scheduled vacation and substitute counsel due to physical illness. On September 27, the court reset the trial date for December 6 due to congestion of the court calendar and unavailability of the courtroom. Gerald's trial began on December 6. At no time did Gerald move for discharge on speedy trial grounds.

At trial, the court physically gave the jury a set of final instructions and also read those instructions to the jury. Those instructions included the State's charge that

one JAMES E. GERALD did break and enter the dwelling of another person, to-wit: Chris Cartwright, with intent to commit a felony therein, to-wit: theft, that is to knowingly exert unauthorized control over the property of another person with the intent to deprive that person of the value or use of said property.

Id. at 59; see also Tr. p. 212. The instructions also included the definition of burglary and what the State was required to prove:

The crime of burglary is defined by law as follows: 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 CFelony. However, the offense is a Class B Felony if the building or structure is a dwelling.

Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:

1. The Defendant

2. knowingly or intentionally;

3. broke and entered

4. the building or structure of Chris Cartwright

5. with the intent to commit a felony, to-wit: theft, by knowingly exerting unauthorized control over the property of a person intending to deprive the person of any part of the use or value of the property; and

6. the building or structure was a dwelling.

If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Burglary, a Class B Felony.

Appellant's App. p. 60; see also Tr. pp. 212-13. The court instructed the jury without objection from Gerald.

The jury found Gerald guilty of Class B felony burglary. Gerald admitted to being a habitual offender. The court sentenced him to an aggregate term of thirty-six years with one year suspended. Gerald now appeals.

Gerald raises three issues:

I. Whether his right to a speedy trial was violated.

II. Whether the trial court committed fundamental error by failing to instruct the jury on the underlying felony of theft.

III. Whether the evidence is insufficient to sustain his burglary conviction.

I. SPEEDY TRIAL

Gerald contends that his right to a speedy trial was violated. Specifically, he argues that his speedy trial rights were violated as provided by Indiana Criminal Rules4(A) and 4(C) and Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

The Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution guarantee the right to a speedy trial. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995); Wilkins v. State, 901 N.E.2d 535, 537 (Ind. Ct. App. 2009), trans. denied. The provisions of Indiana Criminal Rule 4 implement these protections. Clark, 659 N.E.2d at 551; Wilkins, 901 N.E.2d at 537.

We first address Gerald's claim that his speedy...