Riffle v. State

• Decision Date: 31 July 2012
• Docket Number: No. 71A04–1201–CR–7.,71A04–1201–CR–7.
• Parties: Zachary Daye RIFFLE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

971 N.E.2d 1275

Zachary Daye RIFFLE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 71A04–1201–CR–7.

Court of Appeals of Indiana.

July 31, 2012.

Appeal from the St. Joseph Superior Court; The Honorable R.W. Chamblee, Jr., Judge; Cause No. 71D02–1103–FC–36.

Julie P. Verheye, Mishawaka, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Zachary Daye Riffle appeals his conviction for attempted burglary as a class C felony.¹ Riffle raises one issue, which is whether the evidence is sufficient to sustain his conviction. We affirm.

The relevant facts follow. On February 27, 2011, Riffle, who was eighteen years old, went to the apartment of Aaron Bickel, who was nineteen years old, to play video games with Bickel, Matt Hesch, and some other friends. While at the apartment, Bickel “brought up the idea that [he] could successfully break into the Sofi Mini Mart” to “get cigarettes and money,” to Riffle and the others at the apartment. Transcript at 122. At some point, Bickel decided to follow through with the idea, and Riffle went along with Bickel.

At approximately 11:00 p.m., Bickel, who wore a long sleeve shirt and blue jeans, drove his car to the Mini Mart on East Mishawaka Avenue. Riffle, who was wearing red sweatpants and a gray hoody, rode with him, and Hesch drove separately. Bickel drove around the block and parked at the end of an alley on Grove Street, which was north of and ran parallel to East Mishawaka Avenue. Approximately five or ten minutes after Bickel and Riffle parked, Hesch arrived. Riffle exited Bickel's vehicle and entered Hesch's vehicle, and Hesch and Riffle returned to Bickel's apartment.

Arthur Pletcher and his girlfriend Beverly Dewulf, who lived together on East Mishawaka Avenue across the street from the Mini Mart, had noticed Bickel's vehicle circle the block, drive past the Mini Mart, and park on Grove Street at the end of the alley which was about ten feet from their house. Pletcher and Dewulf observed Bickel, wearing a bandana across his face, exit his vehicle and walk down the alley next to their house and towards the Mini Mart. Dewulf called the police, and Pletcher exited his house, crossed Mishawaka Avenue, and approached Bickel. When Bickel saw Pletcher, Bickel initially ran towards the back of the Mini Mart property but there was a fence. Bickel then came up to Pletcher and told him to “get away,” and Pletcher noticed a small crowbar in Bickel's hand and backed up a little bit. Id. at 14. Bickel then ran back to his vehicle and returned to his apartment. Dewulf described what she had observed to a police officer when the officer arrived at the Mini Mart.

At around 12:50 a.m., Bickel and Riffle returned in Bickel's vehicle to the area of the Mini Mart, and Pletcher observed Bickel's vehicle park approximately one block from the Mini Mart. Pletcher observed Riffle exit the passenger seat of the vehicle, run to the Mini Mart and around the store, and then approach the door. Pletcher noticed that Riffle was carrying what appeared to be a white plastic grocery bag. Pletcher then observed Riffle make a movement with the hand that was not holding the plastic bag to break the glass window in the door of the Mini Mart, which triggered the store's alarm, and observed Riffle then run back to Bickel's vehicle and the vehicle drive away. Dewulf called the police who were dispatched to the Mini Mart at 12:58 a.m.

Mishawaka Police Officer Daniel Holt and other police officers arrived at the Mini Mart and discovered that the lower left corner of the window in the main customer entry door to the Mini Mart had been shattered and that the security alarm was ringing. The officers noticed that it appeared entry had not been gained. Bickel's vehicle was pulled over less than a mile away from the Mini Mart, and Bickel and Riffle were apprehended. Pletcher and Dewulf were transported to the location where Bickel and Riffle had been apprehended and identified Bickel as the person who had approached the Mini Mart at approximately 11:00 p.m. and Riffle as the person who had approached the Mini Mart and broke the glass of the store's window at approximately 1:00 a.m. Detective Michael Cleveland investigated the case and interviewed Riffle.

On March 1, 2011, the State charged Riffle with attempted burglary as a class C felony. At Riffle's trial, a jury heard testimony from, among others, Pletcher, Dewulf, Officer Holt, Detective Cleveland, Bickel, and Riffle. Pletcher and Dewulf provided testimony consistent with the facts above, including that Riffle, wearing red sweatpants, was the person who exited the vehicle and broke the glass of the door of the Mini Mart. Dewulf testified that she believed that the hole created by the break in the glass was large enough to unlock the door with a hand. Officer Holt testified that, based upon his conversation with an employee of the Mini Mart, the Mini Mart suffered no loss of items from inside the store. Bickel testified that he was the person who broke the glass in the front door of the Mini Mart. Bickel further testified that he drove his car and was not in the passenger seat, that he was wearing blue jeans, and that Riffle was wearing red sweatpants. When asked if it was Riffle's “idea to come along with you when he knew what you were going to [ ] do,” Bickel answered “Yes.” Id. at 137. Riffle testified that he and Bickel went to the Mini Mart at around 1:00 a.m., that Bickel drove, and that “Bickel was planning on taking something.” Id. at 157. Riffle testified that Bickel was the person who broke the window of the Mini Mart and that he had stayed in the passenger seat of Bickel's vehicle. When asked whether he knew Bickel was going to break into the Mini Mart and that “he knew he was going in there to grab some stuff,” Riffle answered “Yes.” Id. at 163. The jury found Riffle guilty of attempted burglary as a class C felony. The court sentenced Riffle to four years, all of which was ordered suspended, and the court ordered Riffle to probation for a period of two years.

The issue is whether the evidence is sufficient to sustain Riffle's conviction. When reviewing a claim of insufficient evidence, an appellate court “considers only the evidence most favorable to the verdict and any reasonable inferences that may be drawn from that evidence. If a reasonable finder of fact could determine from the evidence that the defendant was guilty beyond a reasonable doubt, then we will uphold the verdict.” Baker v. State (filed June 12, 2012), Ind. No. 89S01–1109–CR–543, slip op. at 1 (citing Freshwater v. State, 853 N.E.2d 941, 942 (Ind.2006) (citing Justice v. State, 530 N.E.2d 295, 296 (Ind.1988)) (citations omitted) (internal quotation marks omitted)). We do not reweigh the evidence or judge the credibility of witnesses. Id. (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005); Walker v. State, 442 N.E.2d 696, 698 (Ind.1982)). These evaluations are for the trier of fact, not appellate courts. Id. In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented. Id. (citing Kidd v. State, 530 N.E.2d 287, 287 (Ind.1988). reh'g denied ).

The offense of burglary as a class C felony is governed by Ind.Code § 35–43–2–1, which provides in 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.” An attempt is defined by Ind.Code § 35–41–5–1, which states in part that “[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted.” A “substantial step” toward the commission of a crime, for purposes of the crime of attempt, is any overt act beyond mere preparation and in furtherance of intent to commit an offense. Hughes v. State, 600 N.E.2d 130, 131 (Ind.Ct.App.1992). Whether a defendant has taken a substantial step toward the commission of the crime, so as to be guilty of attempt to commit that crime, is a question of fact to be decided by the trier of fact based on the particular circumstances of the case. Id. “[W]hen determining whether the defendant has taken a substantial step toward a crime, the focus is on what has been completed, not on what remains to be done.” Id. at 132. The State alleged that Riffle “did attempt to commit the crime of Burglary by breaking the glass door to the building or structure of Sofi Mini Mart ..., which conduct constituted a substantial step toward the commission of the crime of Burglary, that is intentionally breaking and entering the building or structure of another person and knowingly exerting unauthorized control over the property of another person, with intent to deprive the other person of any part of the value or use thereof.” Appellant's Appendix at 3. Thus, to convict Riffle of attempted burglary as a class C felony, the State needed to prove that he took a substantial step toward breaking and entering the Mini Mart with the intent to commit the felony of theft.

Riffle argues that “Bickel was the only person who voiced the intent to steal from the store,” that “[a]t the time [he] walked up to the store, the issue is whether he possessed the intention to commit theft, when he broke the door window, and not whether Bickel possessed that intent,” that “[u]nlike Bickel, Riffle was not armed with an instrument with which to break a window” and was not “wearing a bandana across his face,” and “[t]heir absence points to the lack of evidence of his intention to commit theft.” Appellant's Brief at 8–9. In support of his argument, Riffle...