Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Feb 17 2014, 7:26 am
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: ATTORNEYS FOR APPELLEE:
JANE H. CONLEY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1306-CR-301
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy J. Barbar, Judge
Cause No. 49G02-1108-FB-60414
February 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Christopher Smith (“Smith”) was convicted, after a bench trial, of burglary1 as a
Class B felony, criminal mischief2 as a Class B misdemeanor and was determined to be an
habitual offender.3 He appeals, raising the following restated issues for our review:
I. Whether sufficient evidence was presented to support his conviction
for burglary; and
II. Whether the trial court erred in conducting Smith’s trial in absentia.
We affirm.
FACTS AND PROCEDURAL HISTORY
On August 28, 2011, Travis Shoemake (“Shoemake”) was living with his mother in
her home and had fallen asleep on the sofa in the den at approximately 11:00 p.m. His
mother was not home at the time. About forty minutes after he had fallen asleep, Shoemake
woke up and heard something that sounded like breaking glass. He walked into different
rooms to try to determine where the sound “was coming from” and then “heard [a] light
switch go off.” Tr. at 14. Shoemake then went back to the sofa and retrieved his gun. He
saw that the light was on in his mother’s bedroom, and when he peeked into her room, he
observed a man, later identified as Smith, inside the room wearing a white t-shirt.
Shoemake went back to the den and called 911. Shoemake then heard doors being opened
and sensed that Smith was moving down the hallway. Shoemake moved to a spare
bedroom and got behind the door. The light turned on inside the spare bedroom, and when
1
See Ind. Code § 35-43-2-1.
2
See Ind. Code § 35-43-1-2.
3
See Ind. Code § 35-50-2-8.
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he looked around the door, he recognized Smith as someone he knew from the
neighborhood. Shoemake jumped out and pointed his gun at Smith. Smith, who was
surprised, started yelling apologies when he realized he knew Shoemake. Smith stated he
did not know that Shoemake “stayed there” and was “sorry [he was] doing bad.” Id. at 17.
Shoemake knew the police were on their way, so he moved Smith to the garage.
Indianapolis Metropolitan Police Department Officer Jerry Torres (“Officer
Torres”) was dispatched to Shoemake’s residence on the report of a burglary in progress
with the suspect being a black male wearing a white t-shirt. He arrived and walked around
the house, eventually finding a broken window that appeared to lead to a bedroom. Officer
Torres went back to the front of the house and observed the garage door opening. He saw
Smith, who was wearing a white t-shirt, come out of the garage and ordered him to get
down on the ground. During a search of Smith, Officer Torres discovered jewelry and
change that belonged to Shoemake’s mother and had been located on the dresser in her
bedroom.
The State charged Smith with Class B felony burglary, Class D felony theft, and
Class B misdemeanor criminal mischief and with being an habitual offender. The trial
court first scheduled a jury trial for October 17, 2011. The parties, including Smith, who
was incarcerated at the time, appeared in court on October 14, 2011 for a hearing at which
Smith waived his right to a jury trial. The trial court granted the State’s motion for a
continuance of the trial and scheduled a bench trial for November 4, 2011. On November
4, the parties, including the still-incarcerated Smith, appeared for the trial. The State
requested a body attachment order for Shoemake, who had been subpoenaed but had not
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appeared for the trial. The trial court granted the State’s motion and issued a body
attachment order for Shoemake. The trial court rescheduled the trial for December 9, 2011
and released Smith on his own recognizance.
On December 9, 2011, the State and Smith’s defense counsel appeared for the trial.
Smith failed to appear. Defense counsel stated that she had not been able to contact Smith
since his release on his own recognizance. Id. at 11. She had attempted contact “a couple”
of times, but could not locate him. Id. She told the trial court that she had spoken to a
male at a telephone number given as belonging to a family member, and the male told her
he did not know where Smith was, but that “[Smith] knew he had court today.” Id.
The trial court proceeded with the trial in absentia and found Smith guilty of Class
B felony burglary, Class D felony theft, and Class B misdemeanor criminal mischief; the
theft conviction was merged into the burglary conviction. The trial court issued a warrant
for Smith’s arrest, and he was re-arrested on January 4, 2012. He signed a plea agreement,
in which he admitted he was an habitual offender. On May 29, 2013, after several
continuances, sentencing was held, and the trial court ordered Smith to serve sixteen years
for his burglary conviction, enhanced by ten years due to his habitual offender
determination, and 365 days for his criminal mischief conviction to be served concurrently
with each other for a total of twenty-six years executed. Smith now appeals.
DISCUSSION AND DECISION
I. Sufficient Evidence
Our standard of reviewing claims of sufficiency of the evidence is well settled.
When reviewing the sufficiency of the evidence, we consider only the probative evidence
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and reasonable inferences supporting the verdict. Boggs v. State, 928 N.E.2d 855, 864
(Ind. Ct. App. 2010), trans. denied. We do not reweigh the evidence or assess witness
credibility. Id. We consider conflicting evidence most favorably to the trial court’s ruling.
Id. We will affirm the conviction unless no reasonable fact-finder could find the elements
of the crime proven beyond a reasonable doubt. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. The evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Id. A conviction may
be based upon circumstantial evidence alone. Bockler v. State, 908 N.E.2d 342, 346 (Ind.
Ct. App. 2009).
Smith argues that State failed to present sufficient evidence to support his conviction
for burglary. He contends that there was not sufficient evidence to prove he had the intent
to commit a felony when he entered the dwelling of Shoemake and his mother.
Specifically, he asserts the evidence did not prove that he intended to deprive Shoemake
or his mother of any part of the value or use of their property.
In order to convict Smith of burglary, the State was required to prove that Smith
broke into and entered the dwelling of Shoemake and his mother, with the intent to commit
the felony of theft therein. See Ind. Code § 35-43-2-1; Appellant’s App. at 31. Theft is the
knowing or intentional exertion of unauthorized control over property of another person
with intent to deprive that person of any part of its value or use. I.C. § 35-43-1-2(a). Intent
is a mental state and, absent an admission by the defendant, the trier of fact must resort to
the reasonable inferences from both the direct and circumstantial evidence to determine
whether the defendant has the requisite intent to commit the offense in question. Stokes v.
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State, 922 N.E.2d 758, 764 (Ind. Ct. App. 2010), trans. denied.
Here, the evidence presented showed that, after Shoemake heard the sound of
breaking glass, he observed Smith inside his mother’s bedroom. Shoemake testified that
the bedroom was in disarray, but had not been before Smith had broken into the house. Tr.
at 21. This evidence supports the reasonable inference that it was Smith who rummaged
through the items in the bedroom looking for items to steal, which in turn, supports the
inference that he broke into the residence with the intent to commit theft. See May v. State,
810 N.E.2d 741, 745 (Ind. Ct. App. 2004) (finding inference of intent to commit theft where
house was in disarray, closets had been rummaged through, and clothes were lying on the
floor). Additionally, Smith was found to be in possession of jewelry belonging to
Shoemake’s mother when he was confronted by Shoemake and when the police took him
into custody. The jewelry was usually located on the dresser in the bedroom where Smith
had entered after breaking the window. Tr. at 19. This also supports a reasonable inference
that Smith broke into the house with the intent to commit theft. See Keller v. State, 987
N.E.2d 1099, 1118 (Ind. Ct. App. 2013) (finding inference of intent to commit theft where
items identified as victim’s were recovered from defendant’s garage and home), trans.
denied. We, therefore, conclude that sufficient evidence was presented to support the
reasonable inference that Smith entered Shoemake’s residence with the intent to commit
theft and to support his conviction for burglary.4
4
Smith also argues that his conviction for criminal mischief was not supported by sufficient
evidence because the State did not prove that he was the one who broke the window in the bedroom. Smith
fails to make a cogent argument in support of this assertion. Failure to put forth a cogent argument acts as
a waiver of the issue on appeal. Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006), trans. denied.
Thus, Smith has waived the issue on appeal.
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II. Trial In Absentia
Smith argues that the trial court erred in conducting his trial in absentia because he
did not knowingly and voluntarily waive his right to be present at the trial. Both the Federal
and Indiana Constitutions afford defendants in a criminal proceeding the right to be present
at all stages of their trial. U.S. Const. amend. VI; Ind. Const. art. I, § 13. However, a
defendant may be tried in absentia if the trial court determines that the defendant
knowingly and voluntarily waived that right. Jackson v. State, 868 N.E.2d 494, 498 (Ind.
2007). When a defendant fails to appear for trial and fails to notify the trial court or provide
it with an explanation of his absence, the trial court may conclude the defendant’s absence
is knowing and voluntary and proceed with trial when there is evidence that the defendant
knew of his scheduled trial date. Id.; see also Soliz v. State, 832 N.E.2d 1022, 1029 (Ind.
Ct. App. 2005) (stating that best evidence that defendant knew trial date is defendant’s
presence in court on date matter is set for trial), trans. denied. On appeal, we consider the
entire record to determine whether the defendant voluntarily, knowingly, and intelligently
waived his right to be present at trial. Brown v. State, 839 N.E.2d 225, 228 (Ind. Ct. App.
2005), trans. denied. A defendant’s explanation of his absence is a part of the evidence
available to a reviewing court in determining whether it was error to try him in absentia.
Id.
Here, the record shows that Smith was informed at the hearing held on November
4, 2011 that his trial was scheduled for December 9, 2011. He was present in person and
with counsel at that hearing. “The ‘best evidence’ of a defendant’s knowledge of the trial
date is the defendant’s presence in court on the day the matter is set for trial.” Id. at 227
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(citing Fennell v. State, 492 N.E.2d 297, 299 (Ind.1986)). Additionally, on the date of the
trial, Smith’s counsel told the trial court that she had not had any contact with Smith since
he was released on his own recognizance several weeks prior. Tr. at 11. She stated she
had tried to contact him a few times, but was not able to locate him. Id. She told the trial
court she had spoken to a man at a telephone number she believed belonged to a family
member, and the male told her he did not know where Smith was, but that “[Smith] knew
he had court today.” Id. Accordingly, when Smith failed to show up for his scheduled
trial, the court was permitted to presume that Smith voluntarily waived his right to be
present and could therefore try him in absentia. Brown, 839 N.E.2d at 228. While the trial
court was not required to make further inquiry sua sponte as to the presumption, Smith
could not be prevented from offering an explanation in an attempt to rebut the presumption
of voluntary waiver. Id. However, when Smith did later appear after being re-arrested, he
did not offer any reason why he had failed to appear for his trial date. We cannot say the
trial court erred in determining that Smith voluntarily waived his right to be present at trial
and in conducting his trial in absentia.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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