MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 02 2019, 9:24 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James C. Spencer Curtis T. Hill, Jr.
Dattilo Law Office Attorney General of Indiana
Madison, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon McGaughey, May 2, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1872
v. Appeal from the Jefferson Superior
Court
State of Indiana, The Honorable Michael J.
Appellee-Plaintiff Hensley, Judge
Trial Court Cause No.
39D01-1802-F5-154
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019 Page 1 of 11
[1] Brandon McGaughey appeals his conviction for Level 5 Burglary,1 arguing that
he was entitled to discharge, that the evidence was insufficient, and that the trial
court erred by offering a certain jury instruction. Finding that he was not
entitled to discharge, the evidence sufficient, and no error, we affirm.
Facts
[2] In September 2017, McGaughey borrowed a truck from his friend Tyler
Humbert. On Friday, November 24, 2017, Madison Police Officer Phillip
Wimpee was driving to the scene of an incident on Hooten Boulevard when he
saw a green Dodge truck pass him on the road. When he arrived, he spoke to
the woman who had reported the incident; the woman said the truck had been
involved in the incident. Officer Wimpee notified other officers, and they
began searching for the truck.
[3] Shortly thereafter, Officer Wimpee was dispatched regarding a suspicious
vehicle in a driveway on Ross Street. When the officer arrived, he saw the
green Dodge truck parked in the driveway. The officer saw three flat-screen
televisions, a wooden jewelry box, and a youth compound archery bow in the
truck’s bed. Justin Girdler, the property owner, told Officer Wimpee that the
truck was blocking the driveway and that he did not want it there. Officer
Wimpee decided to have the truck towed.
1
Ind. Code § 35-43-2-1.
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[4] Chandler Chevrolet, the tow company, sent Tim Caudle to tow the truck to its
impound lot. The lot is secured by an eight-foot fence that has barbed wire and
razor wire wrapped around it and an industrial lock and chain at the entrance.
At 10:58 p.m., Caudle received a call from a person, later identified as
McGaughey, asking about the truck. Caudle told McGaughey that he was not
authorized to release the truck until Monday morning. McGaughey became
upset and said he “wanted his ‘f**king’ truck.” Tr. Vol. II p. 127. Caudle told
McGaughey that to retrieve the truck from the impound lot, McGaughey would
need to show proof of ownership, a picture I.D., and valid insurance sometime
between Monday and Friday.
[5] The next day, Caudle went to the impound lot to see whether the items were
still in the truck. Caudle saw that the truck was gone, driven through a section
of the fence that had been removed with bolt cutters. Caudle also noticed that
someone had tried to cut through the industrial chain at the entrance. Caudle
reported the stolen truck to the police. The police found the truck at
McGaughey’s residence. Caudle towed the truck back to the impound lot.
[6] On February 8, 2018, the State charged McGaughey with Level 5 felony
burglary and added an habitual offender enhancement. On March 1, 2018,
McGaughey filed a motion for a speedy trial. The trial court granted his
motion and set a jury trial for May 1, 2018. On April 19, 2018, the State filed a
motion to continue because it had not yet received an analysis of McGaughey’s
cell phone data and because it wanted more time to find and interview three
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possible witnesses who may have seen McGaughey in the truck on the night in
question. The trial court granted the State’s motion.
[7] On May 10, 2018, McGaughey filed a motion for discharge, which the trial
court denied. A jury trial took place from June 5-8, 2018. When instructing the
jury before deliberation, the trial court gave an instruction on accomplice
liability that stated as follows:
A person who, knowingly or intentionally, aids, induces,
or causes another person to commit an offense commits that
offense.
A person may be convicted of, aiding, inducing, or causing
Burglary, even if the other person has not been prosecuted for
Burglary, has not been convicted of Burglary, or has been
acquitted of the Burglary.
Appellant’s App. Vol. V p. 9.
[8] The jury found McGaughey guilty as charged. He admitted to being an
habitual offender. On July 2, 2018, the trial court sentenced him to four years
for his burglary conviction enhanced by four years for being an habitual
offender, for an aggregate term of eight years. McGaughey now appeals.
Discussion and Decision
I. Motion for Discharge
[9] McGaughey first argues that the trial court erred by denying his motion for
discharge. Specifically, he argues that because the delay in bringing him to trial
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was attributed to the State, the trial court should have granted his motion for
discharge because of the violation of his speedy trial request.
[10] Indiana Criminal Rule 4(B)(1) provides:
If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such
motion, except where a continuance within said period is had on
his motion, or the delay is otherwise caused by his act, or where
there was not sufficient time to try him during such seventy (70)
calendar days because of the congestion of the court calendar. . . .
Criminal Rule 4(D) provides for a ninety-day extension under certain
circumstances:
If when application is made for discharge of a defendant under
this rule, the court be satisfied that there is evidence for the state,
which cannot then be had, that reasonable effort has been made
to procure the same and there is just ground to believe that such
evidence can be had within ninety (90) days, the cause may be
continued, and the prisoner remanded or admitted to bail; and if
he be not brought to trial by the state within such additional
ninety (90) days, he shall then be discharged.
“The determination of whether a particular delay in bringing a defendant to
trial violates the speedy trial guarantee largely depends on the specific
circumstances of the case.” Wheeler v. State, 662 N.E.2d 192, 193 (Ind. Ct. App.
1996). We will reverse a trial court’s order concerning Indiana Criminal Rule
4(B) and 4(D) if the trial court’s decision is clearly against the logic and effect of
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the facts and circumstances before the trial court. Small v. State, 112 N.E.3d
738, 741 (Ind. Ct. App. 2018).
[11] McGaughey requested a speedy trial on March 1, 2018; consequently, the
seventy-day deadline expired on May 10, 2018. On April 19, 2018, the State
moved for a continuance, which the trial court granted. McGaughey’s jury trial
then took place on June 5, 2018, twenty-six days after the expiration of the
seventy-day deadline.
[12] McGaughey’s alibi was that he was visiting his parents at the time of the crime.
In its motion to continue, the State identified two reasons for its request. First,
it wanted an analysis of McGaughey’s cell phone records for the relevant time
period, and second, it wanted to find and interview three potential witnesses
who may have seen McGaughey in the truck on the night in question. Each of
the State’s reasons for its request were relevant to disproving McGaughey’s alibi
defense.
[13] Further, the State’s motion fell squarely within the purview of Criminal Rule
4(D). The State provided a timeline of its investigation of McGaughey’s cell
phone. His cell phone was not discovered until February 2018. On February 5,
2018, an officer applied for a search warrant for it. On April 4, 2018, the State
received the cell phone records from the cell phone service provider. On April
11, 2018, the State requested an in-depth analysis from the Indiana State Police.
A detective received the service provider’s records that same day; in his
affidavit, which was attached to the State’s motion, he testified that, in his
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experience, it would take approximately six to eight weeks to analyze the
records. In short, the State showed that it had made a reasonable effort to
procure the evidence and that it believed the evidence could be procured within
ninety days. The State therefore showed that it met the requirements of
Criminal Rule 4(D). Accordingly, the trial court did not err by denying
McGaughey’s motion for discharge.
II. Sufficiency of the Evidence
[14] McGaughey next argues that the evidence was insufficient to support his
conviction for burglary. When reviewing the sufficiency of the evidence to
support a conviction, we must consider only the probative evidence and
reasonable inferences supporting the conviction and will neither assess witness
credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). We will affirm unless no reasonable factfinder could find the elements of
the crime proved beyond a reasonable doubt. Id.
[15] To convict McGaughey of burglary, the State was required to prove beyond a
reasonable doubt that McGaughey broke and entered the building or structure
of another person with intent to commit a felony or theft in it. I.C. § 35-43-2-1.
Theft occurs when a person “knowingly or intentionally exerts unauthorized
control over property of another person, with intent to deprive the other person
of any part of its value or use[.]” Ind. Code § 35-43-4-2.
[16] A burglar’s intent to commit a specific felony at the time of the breaking and
entering may be inferred from the circumstances. Oster v. State, 992 N.E.2d 871,
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875-76 (Ind. Ct. App. 2013). Circumstantial evidence alone is sufficient to
sustain a burglary conviction. Id. at 876. Although evidence of intent does not
need to be insurmountable, there must be a “specific fact that provides a solid
basis to support a reasonable inference that the defendant had the specific intent
to commit a felony[.]” Id. (quotation marks and citation omitted).
[17] McGaughey first argues that because he had Humbert’s permission to possess
and use the truck, he did not commit theft—because he did not exert
unauthorized control over the truck—and if he did not commit theft, he could
not have committed burglary. Whether Humbert allowed McGaughey to
possess and use the truck is irrelevant. Once the truck was in the impound lot,
no one could take the truck without following the tow company’s procedure,
which meant that the property owner had to come to the tow company’s office
between Monday and Friday with proof of ownership, a picture I.D., and valid
insurance. Because Humbert was the truck’s owner, the tow company could
release the vehicle only to him.
[18] McGaughey also argues that the evidence established that he was with his
parents at the time of the crime. The record shows that Caudle received a call
from a person, later identified as McGaughey, asking about the truck at 10:58
p.m. on the night it was towed. Caudle told McGaughey that he was not
authorized to release the truck until Monday morning, and McGaughey
became upset and said he “wanted his ‘f**king’ truck.” Tr. Vol. II p. 127.
After Caudle reported the truck stolen from the impound lot, the police found it
again at McGaughey’s residence. There was also evidence presented that
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during the relevant time period, McGaughey’s cell phone did not connect with
any cell towers that cover the area of his parents’ residence, which is where he
said he was the night of the crime. His argument amounts to a request that we
reweigh the evidence, which we decline.
[19] McGaughey also alleges that because one witness testified that McGaughey
would allow others to use the truck and his phone, it was possible that some
unknown person was using the truck when it was impounded, became
concerned about McGaughey’s possible reaction to the truck being impounded,
and removed the truck from the impound lot. Again, this argument is simply
an invitation to reweigh the evidence, which we may not do. The evidence was
sufficient to support McGaughey’s conviction.
III. Jury Instruction
[20] Finally, McGaughey contends that the trial court erred by instructing the jury
on accomplice liability because he had not been charged as an accomplice and
there was no evidence presented as to what acts he had committed to make him
an accomplice or with whom he had acted.
[21] When evaluating jury instructions on appeal, we consider whether the tendered
instruction correctly stated the law, whether there is evidence in the record to
support giving the instruction, and whether the substance of the proffered
instruction is covered by other instructions. Treadway v. State, 924 N.E.2d 621,
636 (Ind. 2010). We will reverse a conviction only if the appellant
demonstrates that the instruction error prejudices his substantial rights. Id.
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[22] “In Indiana, the responsibility of a principal and an accomplice is the same.”
Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006). An instruction on accomplice
liability is proper where there is some evidence that a second party was involved
in the crime. Id. A person may be charged as a principal yet convicted on
proof that he aided another in the commission of a crime. Id. Due process does
not require the State to give a defendant some pretrial notice that it intended to
try him as an accessory rather than as a principal. Id.
[23] Although the State did not charge McGaughey as an accomplice, the State was
not precluded from pursing an accomplice liability theory during trial because
there was evidence against McGaughey as the principal actor and there was
some evidence that a second party was involved in the crime. Regarding the
evidence of McGaughey as the principal actor, after the truck was towed,
McGaughey called Caudle and demanded “his ‘f**king’ truck.” Tr. Vol. II p.
127. Caudle told McGaughey how the truck could be retrieved, yet the next
morning, the truck was missing from the impound lot. It was then found at
McGaughey’s residence. McGaughey’s alibi that he was at his parents’ house
when the truck was taken was contradicted by his cell phone records.
[24] Regarding evidence that there was a second party involved in the crime, Caudle
testified that the fact that the top of the truck did not have scratches on it after it
was found showed “that somebody had to help hold that razor wire and barb
wire up while the truck drove through the cut chain link opening.” Tr. Vol. II
p. 105. In other words, there was evidence that a second person was involved
because the way in which the truck was removed required one person to hold
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up the razor wire while another person drove the truck through the opening.
Because of this evidence, the trial court did not err in giving the instruction on
accomplice liability.
[25] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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