MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 22 2016, 8:46 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Victor Karp, July 22, 2016
Appellant-Defendant, Court of Appeals Case No.
15A04-1601-CR-32
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Jonathan N.
Appellee-Plaintiff. Cleary, Judge
Trial Court Cause No.
15D01-1412-F4-71
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A04-1601-CR-32 | July 22, 2016 Page 1 of 9
Statement of the Case
[1] Victor Karp appeals his conviction for burglary, as a Level 4 felony, and his
sentence following a jury trial. Karp raises three issues for our review:
1. Whether the State presented sufficient evidence to support
his conviction.
2. Whether the trial court abused its discretion when it
sentenced him.
3. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] On December 4, 2014, Billy Buckingham lived in Lawrenceburg. Buckingham
was sixty-one years old at the time and used a walker. He kept two small safes
near a window in his bedroom. He also kept a very large whisky bottle full of
loose change near the same window. Buckingham estimated that he had about
$100 in coins in that bottle.
[4] Around 4:00 p.m., Jessica Hopkins, who had a very close relationship with
Buckingham and called him “Uncle Billy,” though they were not related, asked
Buckingham for $40, which he refused to give her. Tr. at 401. Around 5:30
p.m., Buckingham went into his home’s computer room, where he stayed for
about thirty minutes.
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[5] Hopkins knew of Buckingham’s safes and bottle of coins. Around 5:30 that
evening, she and her boyfriend, Karp, went to Buckingham’s house “to get the
safe.” Id. at 484. They went to the bedroom window near the safe and bottle,
and Hopkins “lifted the window and took out the safe,” which she
“handed . . . to [Karp].” Id. at 485. Hopkins then “[g]rabbed the jar of
money.” Id. Hopkins and Karp then placed the items in a nearby garbage can
and took them to the house of a mutual friend, Sabrina Walker.
[6] At Walker’s house, the safe was opened. Various items were inside the safe,
including a magnet. Hopkins and Karp then transferred the coins from the
whisky bottle to a large coffee mug that belonged to Walker, and they went to a
nearby Wal-Mart to exchange the coins for bills at a Coinstar machine.
Hopkins and Karp received about $100 for the coins.
[7] Around 6:00 p.m., Buckingham went into his bedroom and immediately
noticed the missing safe and bottle. He also noticed that the nearby window
had been tampered with. Accordingly, Buckingham called the Lawrenceburg
Police Department. Officer Daniel Rosengarn responded around 7:20 p.m.
Officer Rosengarn observed two sets of fresh footprints in the mud directly
below the bedroom window. Thereafter, officers contacted the local Wal-Mart
for surveillance footage of its Coinstar machine. That video showed Hopkins
and Karp exchanging about $100 in coins from a large coffee mug around
ninety minutes after the burglary had occurred.
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[8] In March of 2015, Walker, who had been arrested on other charges,
approached Lawrenceburg Police Department Detective Jeremy Shepherd and
explained the events at her house that had occurred on December 4th, and she
explained how Hopkins and Karp had committed their burglary. Among other
details, Walker informed Detective Shepherd that Hopkins and Karp had
thrown away the shoes they had been wearing during the burglary because they
had stepped in mud.
[9] Walker gave Detective Shepherd permission to enter her house. There,
Detective Shepherd discovered Buckingham’s magnet and other items from
Buckingham’s safe. Detective Shepherd also discovered the large coffee mug
that matched the mug used by Hopkins and Karp at the Coinstar machine.
[10] The State charged Karp with burglary, as a Level 4 felony, and for being a
habitual offender. The State also charged Hopkins with burglary, and she
pleaded guilty. Prior to Karp’s trial, the trial court informed him that, if he too
pleaded guilty, the court would consider his plea a significant mitigator in its
sentencing decision and cap his sentence at twenty years. But Karp did not
plead guilty and instead exercised his right to a jury trial. After that trial, the
jury found him guilty, and the court sentenced him to the advisory term of six
years for burglary, as a Level 4 felony, enhanced by an additional eighteen
years for being a habitual offender. This appeal ensued.
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Discussion and Decision
Issue One: Sufficiency of the Evidence
[11] Karp first asserts that the State failed to present sufficient evidence to
demonstrate that he committed burglary, as a Level 4 felony. Our standard of
review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740
N.E.2d 109, 111 (Ind. 2000).
In reviewing the sufficiency of the evidence, we examine only the
probative evidence and reasonable inferences that support the
verdict. We do not assess witness credibility, nor do we reweigh
the evidence to determine if it was sufficient to support a
conviction. Under our appellate system, those roles are reserved
for the finder of fact. Instead, we consider only the evidence
most favorable to the trial court ruling and affirm the conviction
unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and internal
quotation marks omitted). To show that Karp committed burglary, as a Level 4
felony, the State was required to show that Karp aided Hopkins in breaking and
entering the dwelling of another person, with the intent to commit a theft in it.
Ind. Code §§ 35-41-2-4, 35-43-2-1(1) (2014).
[12] According to Karp: “the State had to show not just that he possessed the spoils
from the crime, but that he assisted [Hopkins] in taking those items. The State
presented only unreliable evidence of Karp’s presence at the crime scene.”
Appellant’s Br. at 15. As such, Karp continues, his burglary conviction should
be reduced to a conviction for receiving stolen property.
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[13] We cannot agree. Karp’s entire argument on appeal rests on having this court
discredit Walker’s testimony against him while also having us emphasize parts
of Hopkins’ testimony over other parts and over other evidence. Meanwhile,
Karp ignores the evidence most favorable to the verdict, which plainly shows
that he aided Hopkins in the commission of the burglary. In other words,
Karp’s only argument on appeal is merely a request for this court to reweigh the
evidence, which we will not do. We affirm Karp’s conviction for burglary, as a
Level 4 felony.
Issue Two: Abuse of Discretion in Sentencing
[14] Karp next asserts that the trial court abused its discretion when it sentenced
him. According to Karp, because the court informed him prior to trial that it
would consider any guilty plea to be a significant mitigating factor during
sentencing, in effect the court penalized him for exercising his right to a jury
trial when it sentenced him to a twenty-four-year aggregate term after the trial
than rather than the twenty-year term the court stated it would have sentenced
him to had he pleaded guilty prior to the trial.
[15] Karp’s argument is specious and not supported by cogent reasoning. It has long
been the law that a guilty plea is generally entitled to significant mitigating
weight when it saves the State and the defendant’s victims the time and costs of
a trial. E.g., Sensback v. State, 720 N.E.2d 1160, 1164-65 (Ind. 1999). A
defendant who chooses to exercise his right to a jury trial does not undertake a
risk-free proposition, and, if he is found guilty, he is not entitled to those same
considerations. We reject Karp’s purported argument on this issue.
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Issue Three: Inappropriateness of Sentence
[16] Finally, Karp asserts that his twenty-four-year aggregate sentence is
inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) permits an Indiana appellate court to “revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” We assess the trial court’s recognition or
nonrecognition of aggravators and mitigators as an initial guide to determining
whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d
142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to
“leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A
defendant must persuade the appellate court that his or her sentence has met the
inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007).
[17] We initially note that, for a Level 4 burglary, Karp faced a maximum possible
term of twelve years. I.C. § 35-50-2-5.5. Karp received the advisory term of six
years. For being a habitual offender, Karp faced a maximum possible
enhancement of twenty years. I.C. § 35-50-2-8(i)(1). Karp received an
enhancement of eighteen years. In pronouncing Karp’s sentence, the trial court
found as aggravating factors Karp’s lengthy criminal history; his numerous
probation violations; Karp “laughing” on three different occasions during the
trial, including while Buckingham was testifying about his disability; and the
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“high” amount of “damage” done to the victim by the burglary of his residence.
Id. at 715-22. The court found no mitigating circumstances.
[18] We cannot say that Karp’s sentence is inappropriate. 1 Regarding the nature of
the offense, Karp aided Hopkins in the burglary of an elderly and disabled
family friend while the victim was in his residence. And, regarding his
character, Karp, who is twenty-seven years old, has an extensive criminal
history, which includes the following:
two adjudications as a delinquent child for acts that would have been
felonies if committed by an adult;
three adult misdemeanor convictions;
two adult felony convictions, namely, burglary, as a Class C felony, and
robbery, as a Class C felony; and
seven probation violations.
We agree with the State that Karp’s criminal history demonstrates “a constant
refusal to conform his behavior to the requirements of the law and orders of the
court,” which reflects poorly on his character. Appellee’s Br. at 19. We cannot
say his twenty-four-year sentence is inappropriate in light of the nature of the
offense or his character.
1
Insofar as Karp’s argument regarding the inappropriateness of his sentence overlaps with his argument
under Issue Two, we do not consider it.
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[19] Affirmed.
Robb, J., and Crone, J., concur.
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Victor Karp v. State of Indiana (mem. dec.)
Combined Opinion