MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Sep 22 2016, 8:19 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devon Ballard, September 22, 2016
Appellant-Defendant, Court of Appeals Cause No.
78A01-1604-CR-733
v. Appeal from the Switzerland Circuit
Court
State of Indiana, The Honorable W. Gregory Coy,
Judge
Appellee-Plaintiff.
Cause No. 78C01-1501-FC-18
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Devon Ballard (Ballard), appeals his conviction and
sentence for burglary, a Class C felony, Ind. Code § 35-43-2-1.
[2] We affirm.
ISSUES
[3] Ballard raises two issues on appeal, which we restate as follows:
(1) Whether there was sufficient evidence to sustain Ballard’s burglary
conviction; and
(2) Whether Ballard’s sentence is inappropriate in light of the nature of the
offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] During the early morning hours of March 1, 2011, Ballard called Luke May
(May), a person he had known since elementary school and played basketball
with at a nearby park, asking whether he could borrow a saw. May agreed and
when Ballard arrived to pick it up, Ballard informed May that he wanted to
“cut open the pop machine” at Fairview Grocery Store. (Transcript p. 97).
May entered Ballard’s vehicle and they drove to the grocery store. Both took
turns at cutting the vending machine open, but they were unsuccessful. At that
point, Ballard kicked the door to the grocery store open and after a few minutes,
he exited the store with “an arm full of cigarettes” and proceeded to put them in
the trunk of his car. (Tr. p. 97). According to May, Ballard went back inside
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the store a second time to get more cigarettes and emerged with a trash bag,
which Ballard put in the trunk of his car.
[5] At approximately 2:00 a.m., Jay Baker (Baker), who lived across the street was
awakened by loud banging noises. When he looked outside, he saw a man
banging on the vending machine outside the grocery store and another man
inside the store. Baker saw that the men were wearing hats—with one wearing
“a toboggan-style hat” and the other “a fedora type” of hat. (Tr. p. 37). Baker
called the police. Meanwhile, Ballard entered the grocery store a third time.
May, who was maintaining visual surveillance the entire time, saw the police at
the end of the road and he warned Ballard. May took off running and when
Ballard exited the store, he ran in another direction. Later, May and Ballard
were reunited in the woods nearby. From there, they ran in the same direction
before May split off and ran home. May lost his toboggan hat in the woods.
[6] At approximately 4:00 a.m., Detective Chris Curry (Detective Curry) of the
Switzerland County Sheriff’s Department was dispatched to provide assistance
with his K-9 partner in the burglary investigation. Detective Curry and the K-9
unit tracked the suspects’ footprints through the field behind the grocery store
and into a large wooded area. The officers were unable to continue with the
search because the vegetation became too dense and it was dark. The following
day, Detective Curry returned to the grocery store to survey the scene.
Detective Curry observed that the store’s merchandise was in disarray, there
was damage to a vending machine outside, and tools had been left outside—
namely a reciprocal saw, a sledge hammer, and a screwdriver. In addition, the
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K-9 officer sniffed out a toboggan hat and brown glove in the woods nearby.
Alice Webb (Webb), a co-owner of the grocery store, indicated to the police
that she was missing a Tupperware container with $80 worth of change that
they had removed from the vending machine the day before, coin rolls worth
about $40, and about 24-30 packs of cigarettes. Local businesses were notified
to be on the lookout for anyone using a large amount of change. On the same
day, March 1, 2011, Ballard bought merchandise with rolled and loose change
at a Marathon Gas Station. Ballard also used $60 in loose change to purchase a
pre-paid phone card. Also, at a BP Gas Station, Ballard paid for merchandise
with $10 in rolled quarters, and he exchanged $30 of rolled quarters for paper
currency. The next day, March 2, 2011, Ballard went again to the Marathon
Gas Station and asked to exchange a pack of cigarettes for money. The owner,
who did not recall Ballard ever buying a carton of cigarettes at his store,
refused.
[7] On March 3, 2011, Deputy Sherriff Richard Lock (Deputy Lock) interviewed
Ballard. Ballard admitted that he used loose change to make purchases at BP
and Marathon gas stations, and at CVS. A search warrant was subsequently
obtained. When the police arrived to search Ballard’s residence, they found the
gate locked. Assistance was called to bring a bolt cutter, and while the officers
were waiting, they saw a vehicle driving away from the residence and far back
into a field and then returning to the residence. When the bolt cutter arrived,
the officers gained entry to Ballard’s home but they did not find evidence linked
to the burglary. A few days later, David Gilbert (Gilbert) bought twenty packs
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of Marlboro cigarettes from Ballard for $60, and Ballard gave him three free
packs of cigarettes. On March 10, 2011, Michael Gray (Gray) went to Ballard’s
residence and bought twenty packs of Marlboro Light for $50.
[8] Several months later, hair that had been found in the toboggan hat was linked
to May through DNA testing. In January of 2015, May was interviewed, but
he denied any involvement in the 2011 burglary. On February 9, 2016, the
State filed an Information, charging Ballard with Count I, burglary, a Class C
felony, I.C. § 35-43-2-1; and Count II, theft, a Class D felony, I.C. § 35-43-4-2.
On February 16, 2016, the State added a third Count, vending machine
vandalism, a Class B misdemeanor, I.C. § 35-43-4-7. A jury trial was held on
February 16-18, 2016. In exchange for a reduced sentence, May testified at
Ballard’s trial. At the close of the hearing, the jury found Ballard guilty as
charged. On March 18, 2016, the trial court held a sentencing hearing. The
trial court vacated Ballard’s conviction for theft and subsequently sentenced
Ballard to four years in the Department of Correction for the burglary
conviction—with eighteen months executed, eighteen months in home
detention, and one year suspended to probation. Regarding to his vending
machine vandalism conviction, the trial court sentenced Ballard to an executed
sentence of 180 days.
[9] Ballard now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Sufficiency of the Evidence
[10] Ballard first argues that the evidence is insufficient to sustain his conviction
because May’s testimony was incredibly dubious. In reviewing a challenge to
the sufficiency of evidence, we neither reweigh evidence nor judge witness
credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we
consider only the evidence and reasonable inferences most favorable to the
verdict and will affirm the conviction “unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt.” Id. It is
therefore not necessary that the evidence “overcome every reasonable
hypothesis of innocence.” Id. (citation omitted). “Where the evidence of guilt is
essentially circumstantial, the question for the reviewing court is whether
reasonable minds could reach the inferences drawn by the jury; if so, there is
sufficient evidence.” Jones v. State, 924 N.E.2d 672, 674 (Ind. Ct. App. 2010)
(citation omitted). Without question, a burglary conviction may be supported
solely by circumstantial evidence. Brink v. State, 837 N.E.2d 192, 196 (Ind. Ct.
App. 2005).
[11] This court may impinge upon the jury’s responsibility to judge the credibility of
witnesses only when confronted with inherently improbable testimony or
coerced, equivocal, wholly uncorroborated testimony. Lawson v. State, 966
N.E.2d 1273, 1281 (Ind. Ct. App. 2012). If a sole witness presents inherently
improbable testimony and there is a complete lack of circumstantial evidence, a
defendant’s conviction may be reversed. Fajardo v. State, 859 N.E.2d 1201,
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1208 (Ind. 2007). This is appropriate only where the court has confronted
inherently improbable testimony or coerced, equivocal, and wholly
uncorroborated testimony of incredible dubiosity. Id. Incredibly dubious or
inherently improbable testimony is that which runs counter to human
experience and which no reasonable person could believe. Campbell v. State, 732
N.E.2d 197, 207 (Ind. Ct. App. 2000). This incredible dubiosity rule applies
only when a witness contradicts himself in a single statement or while
testifying, and does not apply to conflicts between multiple statements. Glenn v.
State, 884 N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. denied.
[12] At Ballard’s jury trial, May testified that Ballard called him at around midnight
and asked him whether he had a saw. Ballard then picked up May and drove to
Fairview Grocery Store. May testified that Ballard kicked the door to the store
open and exited moments later with an arm full of cigarettes, and in a second
entry, Ballard returned with a trash bag which May believed to have contained
more packs of cigarettes.
[13] As for Ballard’s claim that May’s testimony is unbelievable, his argument fails
because there was enough circumstantial evidence to support May’s testimony
that Ballard committed burglary. Webb, a co-owner of the grocery store,
informed the police that she was missing a Tupperware container with $80
worth of loose change which she had taken from the vending machine the day
before, and about $40 of rolled coins. Also missing from the store were
approximately thirty packs of cigarettes. Shortly after the break-in, local
businesses were notified to be on the lookout for someone using loose change to
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make purchases. On the days that followed the burglary incident, Ballard used
both loose and rolled coins to make purchases at CVS and several gas stations.
In addition, close in time to the break-in, Ballard sold a substantial amount of
cigarettes to two people.
[14] To the extent that Ballard claims that May’s testimony is incredibly dubious
because he altered his narration of events at trial implicating Ballard in the
burglary, we note that a witness’s trial testimony that contradicts that witness’s
earlier statements does not make such testimony incredibly dubious. See
Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001). Lastly, Ballard points to
May’s offhanded statement to the police where he stated “that a nigger is going
to do what he’s going to do.” (Tr. p. 55). Ballard contends that this injected a
bias with the jury members. In other words, Ballard suggests that his race—
being black, was the only evidence of guilt. We disagree. Even without May’s
testimony, the State would still have had enough evidence to convict Ballard of
burglary. The day after the burglary, Ballard was seen cashing large amounts of
loose and rolled change at several local stores. Also, Ballard attempted to get
cash for a pack of cigarettes he never purchased from a Marathon gas station.
In that same month, Ballard sold packs of cigarettes to two individuals on
separate occasions.
[15] With regard to Ballard’s argument that May’s testimony was not credible since
it was offered in exchange for a mitigated sentence, we note that May’s
testimony was exposed to the jury’s scrutiny because he too had been charged
with the same crimes. Also, the jury was made aware of those charges, his
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guilty plea, and sentence. It was within the jury’s sole province to determine
the credibility of May’s testimony. See Buelna v. State, 20 N.E.3d 137 (Ind.
2014) (jury could reject or rely on the testimony of an accomplice to determine
the defendant’s guilt beyond a reasonable doubt); see also White v. State, 706
N.E.2d 1078, 1080 (Ind. 1999) (incredible dubiosity rule did not apply where
witnesses testified and circumstantial evidence supported convictions even
though three witnesses provided different information after being offered
incentives; jury was presented with information about the incentives). In light
of the foregoing, we conclude that there was sufficient evidence to sustain
Ballard’s conviction for burglary.
II. Inappropriate Sentence 1
[16] Lastly, Ballard contends that his four-year sentence is inappropriate in light of
the nature of the offense and his character. Indiana Appellate Rule 7(B)
provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
1
Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
investigation (PSI) report must be excluded from public access. However, in this case, the information
contained in the PSI report “is essential to the resolution” of Ballard’s claim on appeal. Ind. Admin. Rule
9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent
necessary to resolve the appeal.
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inappropriate in light of the nature of the offense and the character of the
offender.” The burden is on the defendant to persuade the appellate court that
the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). “Ultimately the length of the aggregate sentence and how it is to be
served are the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008). Whether we regard a sentence as appropriate at the end of the day
turns on our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and a myriad of other considerations that come to
light in a given case. Id.
[17] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Class C felony burglary, Ballard faced a sentencing
range of two to eight years, with the advisory sentence being four years. I.C. §
35-50-2-6. Here, the trial court imposed the advisory sentence.
[18] As to the nature of the offense, Ballard called May in the middle of the night
and asked to borrow a saw to open the vending machine outside Fairview
Grocery Store. Ballard also enlisted the help of May. While May struggled to
cut the vending machine open, Ballard kicked the door to the store open and
made repeated trips into the store. Ballard only stopped taking items from the
store when May warned him that the police were coming.
[19] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
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App. 2007). Ballard claims that he is a law-abiding citizen with a limited
criminal history. While Ballard does not have an extensive criminal history,
which includes one adjudication as a juvenile for public intoxication and two
convictions of driving while suspended, the record shows that Ballard has not
led a law-abiding life. In the PSI, Ballard admitted to using marijuana from age
thirteen and that he became a regular smoker shortly thereafter. Ballard also
disclosed that from age sixteen, he began using pain pills every day until he was
twenty-two years old. In addition, Ballard confessed to using heroin from age
seventeen and that he became heavily addicted to it. See Bryant v. State, 802
N.E.2d 486, 501 (Ind. Ct. App. 2004) (holding that when a defendant is aware
that a substance abuse problem exists but does not seek treatment, the failure to
act indicates something aggravating rather than mitigating about his character).
[20] Moreover, we note that Ballard was sentenced to four years for the burglary
conviction, with eighteen months of his sentence to be served in the Switzerland
County Jail, the other eighteen months of his sentence to be served in home
detention, and the balance was suspended to probation. The trial court appears
to have fashioned a sentence for Ballard that is appropriate to the nature of the
offense and the character of the offender. We do not find otherwise.
CONCLUSION
[21] Based on the foregoing, we conclude that there was sufficient evidence to
convict Ballard of burglary, and Ballard’s sentence is appropriate in light of the
nature of the offense and his character.
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[22] Affirmed.
[23] Barnes, J. concurs
[24] Bailey, J. concurs in result
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Devon Ballard v. State of Indiana (mem. dec.)
Combined Opinion