Rodgers v. State
| Decision Date | 10 June 2013 |
| Docket Number | No. 71A05–1302–CR–73.,71A05–1302–CR–73. |
| Parties | James Brock RODGERS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the St. Joseph Superior Court; The Honorable Jerome Frese, Judge; Cause No. 71D03–1205–FD–437.
Gary L. Griner, Griner & Company, Mishawaka, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On the evening of May 10, 2012, Appellant–Defendant James Rodgers, Charles Chapman, and Cheyenne Milboum went to an apartment building owned by James Eller and took the refrigerators out of two vacant apartments. Rodgers, Chapman, and Milboum planned to sell the refrigerators as scrap and to split the money received from the sale of the refrigerators. Eller had not given Rodgers, Chapman, or Milboum permission to take the refrigerators.
Rodgers was subsequently charged with and convicted of one count of Class D felony theft. On appeal, Rodgers challenges his conviction by claiming that the evidence is insufficient to sustain his conviction. Rodgers also claims that his conviction should be reversed because the deputy prosecutor committed prosecutorial misconduct. Concluding that the evidence is sufficient to sustain Rodger's convictions and that any potential misconduct by the deputy prosecutor was cured by the trial court's final instructions to the jury, we affirm.
On May 10, 2012, Chapman was staying with Rodgers at Rodgers's residence. Rodgers's girlfriend, Milboum, also lived in the residence. Neither Chapman nor Rodgers had a job, and money was tight. At some point, Chapman, Rodgers, and Milboum decided that they would take refrigerators out of vacant apartments in an apartment building where Chapman had previously resided with his step-mother. Chapman, Rodgers, and Milboum planned to “[g]o in, take [the refrigerators], and leave and take [the refrigerators] to the scrap yard.” Tr. p. 77. Chapman, Rodgers, and Milboum planned to “split the money [received for the refrigerators] up three ways.” Tr. p. 78.
Milbourn drove herself, Chapman, and Rodgers to the apartment building in a dark green Ford Explorer. Once they arrived at the building, Chapman and Rodgers went into a vacant upstairs apartment and took the refrigerator. They carried it downstairs and loaded it in the Ford Explorer. The three then returned to Rodgers's residence where Chapman and Rodgers unloaded the refrigerator. The three then returned to the apartment building for another refrigerator. Upon arriving at the apartment building for the second time, Chapman and Rodgers went into a vacant downstairs apartment, took the refrigerator, and loaded it into the Ford Explorer. They then returned, for a second time, to Rodgers's residence.
Samuel Arreguin, who lived next to the apartment building, notified police after he heard noises coming from the apartment building and saw individuals taking a refrigerator. Corporal Glen Roach was dispatched to the apartment building. When Corporal Roach arrived at the apartment building, Arreguin told him that he had seen a female sitting in the driver's seat of a dark-colored Ford Explorer. The Ford Explorer was backed into the driveway. Two men, one of whom Arreguin recognized as Chapman, were loading a refrigerator into the Ford Explorer.
Corporal Roach looked through the window of the vacant downstairs apartment and could see markings on the floor indicating where the refrigerator had been. Corporal Roach then went to the upstairs apartment where he found “an empty space where a refrigerator had once been and all the contents from that refrigerator [were] now on top of the stove which was right next to it.” Tr. pp. 32–33. Arreguin informed Corporal Roach that Chapman had moved to a residence “somewhere on Mishawaka Avenue” “by the bait shop.” Tr. p. 33. Corporal Roach sent out a city-wide description of the dark-colored Ford Explorer used in the theft of the refrigerators.
Meanwhile, Sergeant Wesley Thompson was on patrol on Mishawaka Avenue when he saw a dark green Ford Explorer that matched the description of the vehicle used in the theft of the refrigerators. Sergeant Thompson noticed a large item, possibly a refrigerator, in the back of the Ford Explorer. Sergeant Thompson approached the vehicle, looked inside, and saw that the large item was in fact a refrigerator. Sergeant Thompson advised dispatch of what he had seen. Other officers, including Corporal Roach, soon arrived at the scene.
Upon returning to his residence, Rodgers “took a jigsaw and cut the back of the copper pieces off” the first refrigerator. Tr. p. 80. Rodgers and Chapman were preparing to unload the second refrigerator from the Ford Explorer when Sergeant Thompson “pulled up.” Tr. p. 78. Rodgers took off running when he saw Sergeant Thompson. Upon arriving at the scene, Corporal Roach found that one refrigerator was still in the Ford Explorer. The second refrigerator was “down the east side of the building.” Tr. p. 33. Corporal Roach noticed that the doors and the coils on the back had been removed from the second refrigerator. Corporal Roach also noticed that the freezer of the second refrigerator still had frost and ice in it.
Chapman admitted his involvement in the theft shortly after he was taken into custody. Chapman also told the investigating officer about Rodgers's and Milbourn's involvement. Initially, Chapman claimed that it was Rodgers's idea to steal the refrigerators but subsequently admitted “that it was all of us ... it wasn't just him.” Tr. p. 90.
On May 11, 2012, the State charged Rodgers with one count of Class D felony theft.1 A jury trial was held on November 26 and 27, 2012, after which the jury found Rodgers guilty as charged. On February 5, 2013, the trial court sentenced Rodgers to “two years incarceration” with “[o]ne year suspended.” Appellant's App. p. 39. This appeal follows.
Rodgers contends that the evidence is insufficient to sustain his conviction for Class D felony theft.
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 could find the elements of the crime proven beyond a 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) (citations, emphasis, and quotations omitted). “In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind.2012). Upon review, appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.2002). Inconsistencies in witness testimony go to the weight and credibility of the testimony, “the resolution of which is within the province of the trier of fact.” Jordan v. State, 656 N.E.2d 816, 818 (Ind.1995).
Indiana Code section 35–43–4–2 provides, in relevant part, that a “person who knowingly or intentionally exerts unauthorized control over [the] property of another person, with [the] intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.” “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind.Code § 35–41–2–2(b). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind.Code § 35–41–2–2(a).
In challenging his conviction, Rodgers claims that the evidence is insufficient to sustain his conviction because the State's sole evidence against Rodgers was Chapman's testimony. Rodgers asserts that Chapman's testimony should not have been believed by the jury because Chapman, who was caught “red-handed by the police,” “made up the story about Rodgers'[s] involvement” and testified against Rodgers in exchange for a “significantly reduced sentence.” Appellant's Br. p. 6. However, despite Rodgers's claim that Chapman's testimony should not have been believed, it is well-settled that in a criminal proceeding, “ ‘[t]he jury is free to believe whomever they wish.’ “ McClendon v. State, 671 N.E.2d 486, 488 (Ind.Ct.App.1996) (quoting Michael v. State, 449 N.E.2d 1094, 1096 (Ind.1983)); see also Kocher v. State, 439 N.E .2d 1344 (Ind.1982) (); Hammond v. State, 594 N.E.2d 509, 515 (Ind.Ct.App.1992) (), trans. denied. The jury considered Chapman's testimony and apparently found it to be credible.
The evidence most favorable to the jury's verdict demonstrates that Rodgers knowingly or intentionally exerted unauthorized control of two refrigerators belonging to Eller. Milbourn drove herself, Chapman, and Rodgers to the apartment complex and waited in the vehicle while Chapman and Rodgers went into a vacant apartment, took the refrigerator, and loaded the refrigerator into the Ford Explorer. Milboum drove the vehicle back to Rodgers's apartment where Chapman and Rodgers unloaded the refrigerator....
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