MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Sep 16 2019, 5:45 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Reese, Jr., September 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1985
v. Appeal from the
Putnam Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Matthew L. Headley, Judge
Trial Court Cause No.
67C01-1708-F1-210
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 1 of 36
[1] Paul Reese, Jr. (“Reese”) was convicted after a jury trial of burglary1 as a Level
2 felony, conspiracy to commit burglary2 as a Level 2 felony, conspiracy to
commit armed robbery3 as a Level 3 felony, confinement while armed with a
deadly weapon4 as a Level 3 felony, theft5 as a Level 6 felony, auto theft6 as a
Level 6 felony, two counts of armed robbery,7 each as a Level 3 felony, and
burglary8 as a Level 1 felony. As a result of these nine convictions, he was
given a seventy-two-year aggregate sentence. Reese appeals his convictions and
sentence and raises multiple issues for our review, which we consolidate and
restate as:
I. Whether the trial court abused its discretion when it
admitted certain evidence at trial, including cell phone
records obtained as a result of a search warrant and a
report regarding the contents of a cell phone;
II. Whether the State presented sufficient evidence at trial to
support Reese’s convictions;
1
See Ind. Code § 35-43-2-1(3).
2
See Ind. Code §§ 35-41-5-2, 35-43-2-1(3).
3
See Ind. Code §§ 35-41-5-2, 35-42-5-1.
4
See Ind. Code § 35-42-3-3.
5
See Ind. Code § 35-43-4-2(a)(1)(A).
6
See Ind. Code § 35-43-4-2.5.
7
See Ind. Code § 35-42-5-1.
8
See Ind. Code § 35-43-2-1(4).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 2 of 36
III. Whether Reese’s convictions violated the prohibitions
against double jeopardy; and
IV. Whether Reese’s seventy-two-year aggregate sentence is
inappropriate in light of the nature of the offense and the
character of the offender.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] Around 4:00 a.m. on April 2, 2017, Terry McCarter (“Terry”), who was
seventy-nine at the time, and his wife, Patsy, were awakened by a loud crash in
the area at the front of their house in Greencastle, Indiana. Tr. Vol. 2 at 142-43,
168-69. Terry got out of bed to investigate while Patsy stayed in bed because
she had a broken ankle and could not walk well. Id. at 143, 169. When he
reached the front of the house, Terry was met by a masked gunman who said,
“we’re the police” and told Terry to “[l]ay down on the floor with your face
down.” Id. at 143. Terry knew that the gunman was not a police officer, but
complied with his demand. Id.
[4] Immediately following that, three other gunmen, who were all wearing masks,
black clothes, gloves, some sort of stocking cap, and bandanas, came into the
house. Id. at 143-45, 170-72. One man stayed and guarded Terry while another
went into the bedroom to guard Patsy. Id. at 143. The man who went back to
the bedroom pointed a gun at Patsy and told her, “You’re going to be robbed.”
Id. at 170. He then went over to a dresser, where Patsy had eight drawers of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 3 of 36
over 100 pieces of jewelry, and started emptying the drawers of jewelry into
pillowcases. Id. at 170, 182. The man then found and took a .38 caliber pistol
from the nightstand by the bed. Id. The man also took a small safe and
additional jewelry from the bathroom. Id. at 172-73. The man turned the
nightstand over, threw the dresser drawers all over the room, threw a lamp
across the room, and “completely tore the bedroom up.” Id. at 170. The man
also turned over the Sleep Number mattress and pulled all of the hoses out of it.
Id. at 173.
[5] The other two men proceeded to ransack the house and steal everything of any
value in the home. Id. at 143. The men went into the attic, the basement, the
barn, and the garage to steal valuable items. Id. at 143, 171. The men took
Terry’s wallet and pants that contained the keys to the couple’s Buick
Rendezvous, Patsy’s purse, a pot where Terry threw spare change, and
approximately $6,000 in cash. Id. at 145-47, 183-84. In addition to the pistol
from the nightstand, the men stole a .223 rifle, a .22 rifle, a 12-gauge shotgun, a
single-shot shotgun, an antique musket gun, and knives. Id. at 145, 184. They
also stole various bottles of prescription medicine belonging to Terry and
several cameras that Patsy used in her job. Id. at 184-85. The men took a
chainsaw, air compressor, drills, and a lot of other smaller tools from the barn
and garage as well. Id. at 145, 156, 184. If the men did not steal an item, they
destroyed it, leaving the house in “total disarray.” Id. at 143, 151, 171.
[6] While the men were going through the home, Terry heard one of the men
referred to as “Dustin or Justin or something like that.” Id. at 146. The men
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also joked and laughed while ransacking the house, and one in particular had
an extremely high-pitched laugh. Id. at 162, 176. The McCarters also noticed
that one of the men was quite a bit taller than the rest of the men. Id. at 172.
[7] The men had been at the McCarters’ home for more than an hour when the
man guarding Terry ordered him into the bedroom with Patsy. Id. at 143-44.
The men then ordered Terry and Patsy into the sunroom adjacent to their
bedroom. Id. at 144, 174. All four men came into the area, and one of them
put a gun to Patsy’s head and said, “Tell us where your stash is or I’m going to
blow her head off.” Id. at 144, 174. Terry told the men, “You’ve got
everything. I can’t help you.” Id. at 144. One of the men rushed into the
sunroom at that time and hit Terry on the side of his head with the butt of a
rifle. Id. at 144, 174. As a result, Terry was briefly knocked unconscious. Id. at
144. Patsy thought she and Terry were going to die. Id. at 174. The men
locked Patsy and Terry in the sunroom, left the house, went to the garage, and
drove away in the McCarters’ white Buick Rendezvous. Id. at 144, 146, 165-66,
174.
[8] After waiting a short time to make sure the men were gone, Terry exited the
sunroom through another door that the men had not locked, found a cell
phone, got in their other car, drove up the hill to where he had sufficient cell
phone service, and called 911. Id. at 144. Initially, the blow to his head did not
bother Terry, but three days later, he went to the hospital because of a severe
headache and learned that he had some bleeding of the brain. Id. at 153, 175.
The doctors stated that Terry would likely suffer from a headache for a while as
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 5 of 36
his body absorbed the dried blood. Id. at 175. However, about two weeks later,
Terry’s headache worsened, and he had to be rushed to the hospital to have an
emergency brain operation, where two holes were drilled in the side of his head
to the let the blood drain and relieve the pressure on his brain. Id. at 152-53,
175. He was hospitalized following the surgery for a period of five days. Id. at
153.
[9] Putnam County Sheriff’s Department Detective Douglas Nally (“Detective
Nally”) was the first detective to arrive on the scene, and as he walked through
the house, he observed that every room had been rifled through and ransacked.
Id. at 188. He discovered a boot print on a piece of plywood that had been used
as a ramp for Patsy, since she had been using a knee scooter because of her
broken ankle. Id. at 153, 190. Detective Nally also noticed tire tracks in the
yard that appeared as though they had been made by a vehicle, possibly a
dually truck,9 with a trailer attached to it because there was a set of tracks that
were normal sized with a smaller tire track next to it and there were tracks
where there were two sets of tires together. Id. at 193-95.
[10] On April 4, 2017, Christina Blair (“Blair”), who lived on Spann Avenue in
Indianapolis, Indiana saw a white Buick Rendezvous parked between 3835 and
3902 Spann Avenue and observed a tall white male, who fit the description of
Daltyn Randolph (“Randolph”), exit the vehicle and walk into the house
9
A dually truck is a truck that has dual rear wheels.
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located at 3835 Spann Avenue. Id. at 210-11; Tr. Vol. 3 at 8. Blair called police
and reported the vehicle. Tr. Vol. 2 at 211. After the vehicle was determined to
be the McCarters’ stolen car, police recovered it and took it to the Putnam
County Sheriff’s Department, where it was searched. Id. at 224. Inside the
vehicle, the police found a timestamped receipt from a McDonald’s restaurant a
few blocks from Spann Avenue, dated April 2, 2017, at 7:36 a.m. Id. at 224-25.
Putnam County Sheriff’s Department Detective Patrick McFadden (“Detective
McFadden”) went to that McDonald’s and obtained surveillance footage of the
vehicle related to the receipt and observed that the driver was wearing dark
gloves with white trim. Id. at 226, 228. Detective McFadden also drove past
the 3835 Spann Avenue residence to gather information about the individuals
living there. Id. at 228. As he drove behind the house, he noticed that the
garage door was partially open, and an individual later identified as Justin
Cherry (“Cherry”) came out from under the garage door and stared at Detective
McFadden’s vehicle as it drove by. Id. at 229; Tr. Vol. 3 at 6.
[11] On April 9, 2017, an officer with the Indianapolis Metropolitan Police
Department executed a search warrant concerning an unrelated matter at the
garage at 3835 Spann Avenue. Tr. Vol. 2 at 212. When the police arrived to
execute the warrant, the garage door was open, Reese was sitting outside right
in front of the garage, and Randolph showed up after the police had begun to
search. Id. at 213, 221-22. As a result of the search, the police discovered a
plastic grocery bag filled with miscellaneous items stolen from the McCarter
residence including prescription pill bottles bearing Terry’s name, mail, social
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 7 of 36
security cards, checks, a purse, and a wallet. Id. at 214, 216-19. The police
obtained an additional search warrant for the house at 3835 Spann Avenue and
executed that warrant on April 17, 2017. Id. at 229. When the officers arrived,
they ordered the occupants of the house to come out, and Randolph, Steven
Cosand (“Cosand”), Michael Hostetter, Ronnie Sosby and Cherry all
eventually emerged from inside. Id. at 230; Tr. Vol. 3 at 6. Cosand was a tenant
in the house, and Randolph is Cosand’s cousin. Tr. Vol. 2 at 230; Tr. Vol. 3 at 7,
57. While the men were outside, they were talking and laughing, and Detective
McFadden noticed that Randolph, who was very tall, had a “very very shrill”
laugh similar to Patsy’s description of one of the perpetrators. Tr. Vol. 2 at 231.
Detective McFadden noted that Cherry’s boots had a “strikingly similar” tread
pattern to that of the boot print found on the plywood at the McCarters’
residence, so his boots were collected and later compared to the boot print
recovered from the robbery, and the tread pattern and size of the boots matched
the impression. Id. at 232, 235-36, 247; Tr. Vol. 3 at 71-72.
[12] Once inside the house, officers entered Cherry’s bedroom and found the
McCarters’ safe with several pieces of Patsy’s jewelry inside and Terry’s .38
caliber handgun in a floor vent. Tr. Vol. 2 at 231, 233. Throughout the house,
the officers also found several pairs of gloves, several bandanas, and some
stocking caps. Id. at 231-32, 236-37. Patsy recognized one pair of gloves as
being similar to a pair she had seen on one of the men who burglarized her
house. Id. at 237; Tr. Vol. 3 at 85.
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[13] As a result of a hit on LeadsOnline, a national database covering thousands of
pawn stores that law enforcement uses to check for items that have been
pawned, Detective McFadden recovered two of Patsy’s bracelets at a Cash
America pawn shop directly across the street from the McDonald’s in the same
area as 3835 Spann Avenue. Tr. Vol. 2 at 191-92; Tr. Vol. 3 at 3, 96. Detective
McFadden obtained the pawn slip used to pawn those bracelets, and learned
that Ashley Hillenburg (“Hillenburg”), who has a child with Reese, had
pawned the items on April 7, 2017. Tr. Vol. 3 at 3-4, 53. Hillenburg admitted
that she had received the jewelry she pawned from Reese, who had given her
the jewelry because she needed money to pay for necessities for their child, and
Reese had no cash. Id. at 55-56. Reese and a man Hillenburg knew as
“Drake”10 went with her when she pawned the jewelry; Hillenburg pawned the
items, gave the money to Reese, and he gave part of the money back to
Hillenburg. Id. at 56, 58.
[14] Hillenburg and Reese also shared a storage unit; it was in Hillenburg’s name,
but Reese paid the bills, and both knew the four-digit PIN number that opened
the gate and allowed them access to their specific unit. Id. at 53-55. The gate
history log showed that the PIN number assigned to Hillenburg and Reese had
been used to enter the facility at 8:29 a.m. and to exit at 8:34 a.m. on April 2,
2017. Id. at 12-13. The surveillance video showed a dark-colored dually pickup
10
“Drake” was later determined to be Charles William Maybaum. Tr. Vol. 3 at 44, 56-57.
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truck entering and leaving at those times. Id. at 14. Surveillance video also
showed Reese paying the bill for the storage unit on April 3, 2017, wearing a
dark-colored shirt, dark beanie, and a bandana around his neck, which Patsy
confirmed was similar to the clothing the perpetrators wore. Id. at 14-15, 85.
[15] On May 10, 2017, officers executed a search warrant on the storage unit rented
by Hillenburg and Reese. Id. at 23. When the officers arrived at the storage
unit, Reese was standing next to a maroon Chevy pickup truck in front of the
open storage unit. Id. at 24, 27. The officers yelled, “Stop, police,” but Reese
refused all commands, jumped into the truck, and accelerated at a high rate of
speed toward the officers. Id. at 24. Reese was not able to exit the facility
through the only exit because it was blocked by one of the officer’s vehicles, so
Reese drove his truck through the fence. Id. Reese’s truck became stuck
because one of the tires was caught in the chain and poles of the fence. Id. at
24, 28-29. When the officers attempted to get Reese out of the truck, he put a
.38 caliber revolver in his mouth. Id. at 24-25. A four-hour standoff ensued,
which did not end until SWAT officers were able to disarm Reese and take him
into custody. Id. at 25.
[16] During the standoff, Reese called his girlfriend, Emily Redmon (“Redmon”),
and told her he was going to kill himself because he had “been caught.” Id. at
76. Previously, in mid-April, Reese had talked to Redmon about a home
invasion in Putnam County and told her that he needed to leave town and “lay
low because the police were closing in on him.” Id. at 74. After that
conversation, Reese disappeared for about a week and a half. Id. at 74-75.
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After he returned, Reese spoke to Redmon about the home invasion while at
Drake’s house, and at that time, Reese admitted he and others had taken a
white Buick Rendezvous, a long gun, and some women’s jewelry during the
home invasion. Id. at 75-76. Redmon had seen some of the stolen jewelry and
also observed the white Buick on Spann Avenue, where Reese stayed with
Cherry, Cosand, and Randolph. Id. at 75-76.
[17] During the search of the storage unit, police discovered multiple items
belonging to the McCarters, including a blue tub containing Terry’s tools, a
money box, a wooden drawer that had been pulled from a piece of furniture
inside the McCarters’ home, a clock, a box of several cameras, and mail
addressed to the McCarters. Id. at 39, 47-50, 84-88. The police later searched
Reese’s truck and found Terry’s .223 caliber bolt action rifle in the backseat. Id.
at 34, 83.
[18] During the searches of the Spann Avenue house and garage, the police found
two cell phones, one belonging to Randolph and one to Cosand. Tr. Vol. 2 at
214, 232-33. After obtaining a search warrant for Randolph’s phone, police
downloaded the contents of the phone using a program called Oxygen
Forensics and found contact information for a “Justin,” with number 317-515-
0876, “Paul,” with number 317-495-5083, and “Drake” with number 317-378-
0969, as well as a past search for the terms “couple held at gunpoint for an hour
during home invasion near Greencastle” on a local news organization’s
website. Tr. Vol. 3 at 42-44, 47; State’s Exs. 107, 107a, 107b. Cosand’s phone
also contained the same contact information for a “Justin,” a “Drake,” a
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“Daltyn,” and a “Paul.” Tr. Vol. 2 at 233, 250; Tr. Vol. 3 at 2; State’s Exs. 88-90.
The contact information for “Justin” matched a cell phone number that Cherry
had previously provided to state government officials between September 2016
and January 2017. Tr. Vol. 3 at 69; State’s Ex. 37. Hillenburg also confirmed
that Reese’s phone number was 317-495-5083. Tr. Vol. 3 at 58.
[19] The police used the information obtained from these cell phones to obtain a
search warrant for the records connected to Reese’s phone number and for the
phone numbers associated with Cherry and Drake. Id. at 90-95; State’s Exs. 122,
125, 128. The data gathered from Cherry’s phone showed Cherry in the area
around the Spann Avenue address for most of the day on April 1, 2017, then
traveling to Greencastle between 8:25 p.m. and 9:20 p.m. and remaining in
Greencastle until 10 p.m. Tr. Vol. 3 at 115; State’s Ex. 133. Cherry’s phone
remained inactive from 9:56 p.m. on April 1 until the next morning at around
8:49 a.m., at which time, Cherry’s phone showed it as being back in
Indianapolis around Spann Avenue. Tr. Vol. 3 at 115-16; State’s Ex. 133.
Drake’s phone was also in the Indianapolis area for most of the day on April l,
but just before 7:00 p.m., the cell phone data showed Drake was traveling to
Greencastle, arriving just before 8:00 p.m. Tr. Vol. 3 at 116-17; State’s Ex. 133.
Drake’s phone remained active in the Greencastle area from 8:00 p.m. until
2:46 a.m. Tr. Vol. 3 at 117-18; State’s Ex. 133. There was no activity after 2:46
a.m. until 10:00 a.m., at which time, activity showed his phone back in
Indianapolis. Tr. Vol. 3 at 118; State’s Ex. 133. The cell phone data showed that
Reese’s phone was in the Indianapolis area until around 8:12 p.m., and at that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 12 of 36
time, it started traveling to Greencastle, arriving at 8:50 p.m. Tr. Vol. 3 at 118-
19; State’s Ex. 133. Reese’s phone remained active in Greencastle until 3:22
a.m. and showed Reese traveling from Greencastle back to Indianapolis
between 5:25 a.m. and 6:08 a.m. and then remaining in the Indianapolis area
on April 2. Tr. Vol. 3 at 119; State’s Ex. 133. The cell phone records also
established that Cherry and Drake had been communicating with one another
and that Drake and Reese had been communicating with each other. Tr. Vol. 3
at 125.
[20] On August 24, 2017, the State charged Reese with Level 2 felony burglary,
Level 2 felony conspiracy to commit burglary, Level 3 felony armed robbery,
Level 3 felony conspiracy to commit armed robbery, Level 3 felony criminal
confinement, Level 6 felony theft, and Level 6 felony auto theft. Appellant’s
App. Vol. 2 at 2.11 On April 3, 2018, the State amended the two conspiracy
counts and added two counts of Level 3 felony armed robbery and one count of
Level 1 felony burglary; the State also dismissed the originally charged Level 3
felony armed robbery. Id. at 6, 37. On May 11, 2018, the State filed a second
amended information regarding the two conspiracy counts, and on June 7,
2018, the State added a Level 5 felony burglary, Level 6 felony theft, Level 5
felony conspiracy to commit burglary, and Level 6 felony conspiracy to commit
theft. Id. at 2, 7-8, 42.
11
We note that Reese’s Appellant’s Appendix is missing pages 17-35, which according to the Table of
Contents should contain the original charging informations and the probable cause affidavit.
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[21] On June 11, 2018, Reese filed a motion to suppress the cell phone records
obtained as a result of the search warrant officers obtained for his phone
number. Appellant’s App. Vol. 3 at 33-40. The trial court denied the motion to
suppress. Id. at 56-59. A jury trial was held on July 16-18, 2018, at which
Reese faced nine counts: Level 2 felony burglary; Level 2 felony conspiracy to
commit burglary; Level 3 felony conspiracy to commit armed robbery; Level 3
felony confinement while armed with a deadly weapon; Level 6 felony theft;
Level 6 felony auto theft; two counts of Level 3 felony armed robbery; and
Level 1 felony burglary. During the trial, Reese objected each time evidence
obtained as a result of the search warrant for his cell phone records was offered,
and the trial court admitted the evidence over Reese’s objection. Tr. Vol. 3 at
95, 109. Reese also objected to the admission of the Oxygen Forensics report
related to the physical search of Randolph’s phone on foundational grounds
and as to reliability, and the trial court overruled the objection. Id. at 45-46. At
the conclusion of the jury trial, Reese was found guilty on all nine counts. Id. at
165. At the sentencing hearing, the trial court imposed an aggregate seventy-
two-year sentence. Reese now appeals.
Discussion and Decision
I. Admission of Evidence
[22] Reese argues that the trial court abused its discretion both when it admitted
evidence obtained as a result of the search warrant for cell phone records and
when it admitted the report from Oxygen Forensics regarding contents of his
cell phone. Our standard of review of a trial court’s admission of evidence is an
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abuse of discretion. Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct. App. 2014),
trans. denied. A trial court abuses its discretion if its decision is clearly against
the logic and effect of the facts and circumstances before the court or if the court
misapplies the law. Id. Even if the trial court’s decision was an abuse of
discretion, we will not reverse if the admission of evidence constituted harmless
error. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App. 2013), trans. denied.
Error is harmless if it does not affect the substantial rights of the defendant. Id.
[23] Reese initially contends that the admission of evidence obtained through the
search warrant for his cell phone records was an abuse of discretion because the
probable cause affidavit in support of the warrant was based on uncorroborated
hearsay. He specifically argues that the affidavit contained statements by an
incarcerated individual and did not contain any indicia of the reliability of this
individual. Reese further asserts that the affidavit contained information from
the execution of a different search warrant and that the affiant was not present
for that search and had no firsthand knowledge of the information.
Additionally, Reese claims that the affidavit contained information from
another officer, and that information was not corroborated because it was not
shown that that officer had actual knowledge of the information. Reese also
maintains that the good faith exception does not apply here because the
information contained in the affidavit was misleading.
[24] “In deciding whether to issue a search warrant, ‘[t]he task of the issuing
magistrate is simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit . . . there is a fair probability that
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contraband or evidence of a crime will be found in a particular place.’” Jackson
v. State, 908 N.E.2d 1140, 1142 (Ind. 2009) (quoting Illinois v. Gates, 462 U.S.
213, 238 (1983)). The duty of the reviewing court is to determine whether the
magistrate had a “substantial basis” for concluding that probable cause existed.
Id. A substantial basis requires the reviewing court, with significant deference
to the magistrate’s determination, to focus on whether reasonable inferences
drawn from the totality of the evidence support the determination of probable
cause. Id. (citing Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997)). “Although we
review de novo the trial court’s substantial basis determination, we nonetheless
afford ‘significant deference to the magistrate’s determination’ as we focus on
whether reasonable inferences drawn from the totality of the evidence support
that determination.” Id. (quoting Houser, 678 N.E.2d at 98-99).
[25] Probable cause is a fluid concept, which is decided based on the facts of each
case. Hurst v. State, 938 N.E.2d 814, 817 (Ind. Ct. App. 2010). Probable cause
to search premises is established when a sufficient basis of fact exists to permit a
reasonably prudent person to believe that a search of those premises will
uncover evidence of a crime. Id. Indiana Code section 35-33-5-2(b) requires
that when a warrant is based on hearsay, the affidavit must either: “(1) contain
reliable information establishing the credibility of the source and of each of the
declarants of the hearsay and establishing that there is a factual basis for the
information furnished; or (2) contain information that establishes that the
totality of the circumstances corroborates the hearsay.” The trustworthiness of
hearsay for the purpose of proving probable cause can be established in a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 16 of 36
number of ways, including where: (1) the informant has given correct
information in the past; (2) independent police investigation corroborates the
informant’s statements; (3) some basis for the informant’s knowledge is
demonstrated; or (4) the informant predicts conduct or activity by the suspect
that is not ordinarily easily predicted. Bradley v. State, 4 N.E.3d 831, 840-41
(Ind. Ct. App. 2014), trans. denied. These examples, however, are not exclusive,
and, depending on the facts, other considerations may factor in when
establishing the reliability of the informant or the hearsay. Id. at 841.
[26] Reese contends that statements made by Officer Matthew McFadden12 (“Officer
McFadden”) regarding Reese being a known associate of Randolph and known
to frequent the Spann Avenue residence where Randolph and Cherry lived were
uncorroborated hearsay. He also takes issue with evidence that was found
when the search was conducted at Reese’s storage unit because the affiant was
not present. However, the affiant was allowed to rely on this information under
the collective or imputed knowledge doctrine. Under that doctrine, “an arrest
or search is permissible where the actual arresting or searching officer lacks the
specific information to form the basis for probable cause or reasonable suspicion
but sufficient information to justify the arrest or search was known by other law
enforcement officials initiating or involved with the investigation.” State v.
Gray, 997 N.E.2d 1147, 1153 (Ind. Ct. App. 2013), trans. denied. “So long as
12
No relation to Putnam County Sheriff’s Department Detective Patrick McFadden.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 17 of 36
fellow officers applying for a search warrant collectively have probable cause,
‘their individual knowledge can be imputed to the officer signing the affidavit in
support of the search warrant.’” McGrath v. State, 95 N.E.3d 522, 530 (Ind.
2018) (quoting Utley v. State, 589 N.E.2d 232, 236 (Ind. 1992), cert, denied, 506
U.S. 1058 (1993)). The collective-knowledge doctrine presumes a fellow
officer’s credibility, and, therefore, no special showing of reliability need be
made as a part of the probable cause determination. Id.
[27] Here, prior to the probable cause affidavit being filed, Officer McFadden had
been engaged in an investigation of Reese as a suspect in the present offense;
therefore, the statement attributed to him in the probable cause affidavit did not
need to be independently corroborated to be relied upon as credible information
supporting probable cause. As to the evidence discovered as a result of the
search of the storage unit, the search was conducted by law enforcement
pursuant to a valid search warrant supported by probable cause. This evidence
and information gained by other officers could be imputed to the affiant in
signing the affidavit in support of the search warrant for cell phone records. No
special showing of reliability was needed.
[28] Reese also takes issue with information included in the affidavit, which was
gained from an informant who was incarcerated at the time he provided
information to the police. Michael Hostetter (“Hostetter”) was inside the
Spann Avenue house, where Randolph and Cherry lived, when the search
warrant was executed on that house and items stolen from the McCarter
residence as well as gloves similar to those one of the perpetrators wore were
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 18 of 36
found. Appellant’s App. Vol. 3 at 42. After the search occurred, Randolph, who
would have known that items stolen in the burglary had been collected by the
police, told Hostetter about the burglary of the McCarters and that Reese and
Drake, as well as Randolph, were at the McCarter burglary. Id. Hostetter later
provided this information to the police. Id. The police later searched Reese’s
storage unit and found mail addressed to the McCarters inside the storage unit.
Id. at 43. The timing of Randolph’s disclosure to Hostetter, as well as the fact
that items stolen from the McCarters during the burglary were found in
Randolph’s house and in Reese’s storage unit, connecting those two to the
burglary, sufficiently corroborated the statements Hostetter made to the police
that implicated Reese and Randolph in the crimes; therefore, the totality of the
circumstances sufficiently corroborated Hostetter’s hearsay statements.
[29] Moreover, even if the search warrant affidavit was defective, the exclusion of
the evidence is not necessary if the officers acted in good faith when relying
upon the search warrant. “Exclusion of evidence recovered pursuant to a
search warrant issued by a judge or magistrate is not required when the officer
obtaining the warrant has acted in objective good faith and within the scope of
the warrant.” Gerth v. State, 51 N.E.3d 368, 375 (Ind. Ct. App. 2016) (citing
United States v. Leon, 468 U.S. 897, 920 (1984)). The good faith exception to the
warrant requirement was created in large part because of the practical reality
that once a neutral and detached magistrate has issued a search warrant, “‘there
is literally nothing more the policeman can do in seeking to comply with the
law.’” Jackson, 908 N.E.2d at 1144 (quoting Figert v. State, 686 N.E.2d 827, 832-
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 19 of 36
33 (Ind. 1997) (quoting Leon, 468 U.S. at 921)). Officers are required to have a
reasonable knowledge of what the law prohibits, but “imposing on officers the
obligation to second guess a magistrate’s decision in all but the most obvious
instances of an affidavit lacking an indicia of probable cause is not a burden the
law anticipates.” Id. The good faith exception will not apply if the warrant was
based on false information knowingly or recklessly supplied or if the affidavit or
sworn testimony upon which probable cause rests is so lacking in indicia of
probable cause as to render an official belief in the existence of the warrant
unreasonable. Hoop v. State, 909 N.E.2d 463, 470-71 (Ind. Ct. App. 2009), trans.
denied.
[30] Reese contends that the good faith exception does not apply here because the
information in the affidavit was misleading because it stated that the affiant
found a phone number for “Paul Reese” on a cell phone determined to belong
to Cosand. Appellant’s App. Vol. 2 at 42. Reese asserts this information was
false because the affiant did not find a phone number for Paul Reese on
Cosand’s cell phone; he found three numbers for “Paul” on the contacts of
Cosand’s cell phone. The statement by the affiant was not factually inaccurate,
however, because Hillenburg had confirmed that one of the numbers for “Paul”
found in Cosand’s cell phone contact list belonged to Reese before the affidavit
was written.13 Tr. Vol. 3 at 2-4, 23; Appellant’s App. 3 at 42-43. Further, the
13
By the time the affidavit was submitted, the police had already learned that Hillenburg had pawned the
stolen bracelets and that she and Reese shared a storage unit which the police had already searched. Tr. Vol. 3
at 2-4, 23; Appellant’s App. Vol. 3 at 43.
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affiant’s omission of the fact that there were three numbers listed for “Paul” is
irrelevant. The lack of this information does not make it any less true that the
number for which the affiant sought a search warrant belonged to Reese. We,
therefore, conclude that the good faith exception could apply. The trial court
did not abuse its discretion in admitting the evidence obtained through the
search warrant for Reese’s cell phone records because the warrant was
supported by probable cause, and even if it was not, the good faith exception
applied.
[31] Reese next argues that the trial court abused its discretion when it allowed the
Oxygen Forensics report to be admitted at trial. He contends that the report
should not have been admitted because Detective Darren Chandler (“Detective
Chandler”) did not meet the requirements for the admission of expert testimony
under Indiana Evidence Rule 702. Specifically, Reese claims that the State
failed to establish the foundation and reliability necessary to admit the report.
[32] Reese failed to preserve this issue for appeal. At trial, Detective Chandler
testified that he recovered a cell phone belonging to Randolph during the search
of the garage at 3835 Spann Avenue, that he obtained a search warrant to
conduct a forensic examination of the contents of the phone, and that he
“hooked” the phone up to the Oxygen Forensics computer program to pull data
from the phone. Tr. Vol. 3 at 42. Detective Chandler then testified that data
pulled from the phone showed that Randolph’s phone contained contacts for
“Justin,” “Paul,” and “Drake,” along with their respective phone numbers. Id.
at 43. Detective Chandler also stated that the phone had been activated on
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April 3, 2017, and several days later, a Google search was performed searching
for information about a home invasion in Putnam County. Id. at 43-44. Reese
did not object to any of this testimony regarding the data obtained from the
phone using the Oxygen Forensics program. Id. 42-44. He only objected when
the State moved to admit the printed report containing the information about
which Detective Chandler had already testified, contending that the State had
failed to establish that the program was reliable or accurate. Id. 45-46.
Therefore, at the time Reese objected, the information of evidentiary value from
the report had already been admitted through Detective Chandler’s testimony.
A defendant must make a contemporaneous objection at the time the evidence
is introduced to preserve a claim of evidentiary error for purposes of appeal.
Laird v. State, 103 N.E.3d 1171, 1175 (Ind. Ct. App. 2018), trans. denied.
Because he failed to do so, we conclude that Reese has waived this issue on
appeal.
[33] Moreover, even if the admission of the Oxygen Forensics report was error, it
was harmless. We will not reverse a conviction due to evidentiary error unless
that error affects the substantial rights of the defendant. Teague v. State, 978
N.E.2d 1183, 1189 (Ind. Ct. App. 2012). An error is harmless if there is
substantial independent evidence of guilt, and we are satisfied that there is no
substantial likelihood the challenged evidence contributed to the conviction. Id.
[34] Substantial independent evidence was presented to establish that Reese
committed the crimes for which he was convicted. Hours after the burglary was
committed, a dually truck, which was the type of truck suspected of making the
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tire tracks found in the McCarters’ yard, was observed on surveillance footage
entering the storage facility, where Reese had a storage unit, by using Reese’s
PIN code. Tr. Vol. 2 at 193-95; Tr. Vol. 3 at 11-14, 54. Reese was also seen on
surveillance footage at the storage unit facility wearing clothing that matched
the description of clothing worn by the men who committed the burglary. Tr.
Vol. 3 at 14-15, 85. Multiple items stolen from the McCarters’ residence during
the burglary were found inside of Reese’s storage unit, including a blue tub
containing Terry’s tools, a money box, a wooden drawer from a piece of
furniture, a clock, a box of several cameras, and mail addressed to the
McCarters. Id. at 39, 47-50, 84-88. Only Reese and Hillenburg had access to
the storage unit, and she testified that she had only been there about five times.
Id. at 55, 61. When officers arrived to search the storage unit, Reese attempted
to run over and flee from the officers, which showed consciousness of guilt. Id.
at 24. After Reese’s truck was stuck, he called his girlfriend during the ensuing
standoff and told her he was going to kill himself because he had been caught.
Id. at 73, 76. Reese’s truck was searched when he was arrested, and one of
Terry’s stolen rifles was found in the backseat. Id. at 33-34, 83.
[35] Evidence was also presented that Reese stayed at 3835 Spann Avenue with
Cherry, who was linked to the burglary through prints from his boots, and
where police found items of clothing matching the description of those worn by
the perpetrators as well as items stolen from the McCarters’ home. Tr. Vol. 2 at
214, 231-32, 235-37, 241, 246-47; Tr. Vol. 3 at 71-72, 76. Furthermore, the
McCarters’ Buick Rendezvous was seen near and recovered from 3835 Spann
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Avenue. Tr. Vol. 2 at 210-11, 224. Reese had also given jewelry stolen from the
McCarters to Hillenburg to pawn. Tr. Vol. 3 at 55-56. Further, Reese confessed
to his girlfriend that he was involved in the home invasion and discussed
several items that they had stolen, including the Buick Rendezvous, jewelry,
and a long gun. Id. at 75-76. Additionally, the challenged Oxygen Forensics
report was mostly cumulative of other properly admitted evidence that Reese
does not challenge on appeal. A cell phone belonging to Cosand was recovered
during the search of 3835 Spann Avenue, and that phone was also searched and
contained the same contact information for “Justin,” “Drake,” and “Paul” that
was found on Randolph’s phone. Tr. Vol. 2 at 233; Tr. Vol. 3 at 2. See Hunter v.
State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017) (“The improper admission of
evidence is harmless error when the erroneously admitted evidence is merely
cumulative of other evidence before the trier of fact.”), trans. denied. The
Google search for a news story on the burglary by Randolph had no bearing on
Reese’s guilt. Based on the substantial independent evidence presented in
support of Reese’s convictions, we conclude that the admission of the Oxygen
Forensics report, if error, was harmless.
II. Sufficient Evidence
[36] Reese argues that the evidence presented at trial was insufficient to support his
convictions. When we review the sufficiency of evidence to support a
conviction, we do not reweigh the evidence or assess the credibility of the
witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.
denied. We consider only the evidence most favorable to the verdict and the
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reasonable inferences that can be drawn from that evidence. Fuentes v. State, 10
N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied. We also consider conflicting
evidence in the light most favorable to the trial court’s ruling. Oster v. State, 992
N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied. We will not disturb the
verdict if there is substantial evidence of probative value to support it. Fuentes,
10 N.E.3d at 75. We will affirm unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Delagrange v. State, 5
N.E.3d 354, 356 (Ind. 2014). A conviction can be sustained on only the
uncorroborated testimony of a single witness, even when that witness is the
victim. Dalton v. State, 56 N.E.3d 644, 648 (Ind. Ct. App. 2016), trans. denied.
[37] Reese first contends that the evidence was insufficient to support his convictions
because neither of the McCarters could identify him as one of the perpetrators.
He asserts that the four men who broke into the McCarters’ home wore masks
and gloves, and neither Terry nor Patsy could identify any of the four.
[38] Identity may be established entirely by circumstantial evidence and the logical
inferences drawn therefrom. Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App.
2016), trans. denied. Identification testimony need not necessarily be
unequivocal to sustain a conviction. Id. “When the evidence of identity is not
entirely conclusive, the weight to be given to the identification evidence is left to
the determination of the jury, as determining identity is a question of fact.”
Harbert v. State, 51 N.E.3d 267, 275 (Ind. Ct. App. 2016) (citing Whitt v. State,
499 N.E.2d 748, 750 (Ind. 1986)), trans. denied.
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[39] As previously stated, evidence was presented that the driver of a similar truck to
that used in the burglary used Reese’s PIN number to enter Reese’s storage unit
hours after the burglary, and numerous stolen items were discovered in that
unit. Surveillance footage showed Reese wearing similar clothing to that of the
perpetrators in the robbery shortly after the crimes occurred. One of Terry’s
stolen rifles was found in the backseat of Reese’s truck. Reese stayed at 3835
Spann Avenue with the others implicated in the burglary, and items of clothing
similar to those worn by the perpetrators and numerous stolen items from the
burglary were found at that address. Reese gave jewelry stolen during the
burglary to Hillenburg to pawn. Additionally, Reese’s cell phone records
showed that between 8:12 and 8:50 p.m., his cell phone traveled from
Indianapolis to Greencastle, where the McCarters lived, his phone remained
active in Greencastle until 3:22 a.m., and Reese traveled from Greencastle back
to Indianapolis between 5:25 and 6:08 a.m. Tr. Vol. 3 at 118-19; State’s Ex. 133.
Furthermore, Reese confessed that he was involved in the burglary to his
girlfriend. Even though the McCarters were not able to identify Reese,
sufficient evidence was presented to establish that Reese was one of the men
who committed the burglary.
[40] Reese next argues that the State failed to present sufficient evidence to support
his convictions for conspiracy to commit burglary and conspiracy to commit
armed robbery. Specifically, he asserts that insufficient evidence was presented
to establish an agreement between him and Cherry, Randolph, or Drake to
support a criminal conspiracy. Reese contends that none of the men testified,
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and the only evidence of an agreement were phone calls between cell phones,
which he maintains was not sufficient.
[41] Reese was convicted of both conspiracy to commit burglary and conspiracy to
commit armed robbery. “A person conspires to commit a felony when, with
intent to commit the felony, the person agrees with another person to commit
the felony.” Ind. Code § 35-41-5-2(a). The State must also prove that “the
person or the person with whom he or she agreed performed an overt act in
furtherance of the agreement.” I.C. § 35-41-5-2(b). Therefore, in order to
convict Reese of the two conspiracy charges, the State was required to prove
that he agreed with Cherry, Randolph, or Drake to break and enter into the
McCarters’ home with the intent to commit theft or a felony inside and to take
property from the McCarters by using or threatening the use of force while
armed with a deadly weapon. I.C. §§ 35-43-2-1, 35-42-5-1.
[42] The State is not required to prove the existence of an express agreement, but
there must be enough evidence to infer an agreement. Purvis v. State, 87 N.E.3d
1119, 1126 (Ind. Ct. App. 2017) (citing Kemper v. State, 35 N.E.3d 306, 310
(Ind. Ct. App. 2015), trans. denied). “‘It is sufficient if the minds of the parties
meet understandingly to bring about an intelligent and deliberate agreement to
commit the offense.’” Porter v. State, 715 N.E.2d 868, 870-71 (Ind. 1999)
(quoting Williams v. State, 274 Ind. 94, 96, 409 N.E.2d 571, 573 (1980)). The
agreement may be proved by either direct or circumstantial evidence. Id. at
871. However, mere association with the co-conspirator, standing alone, is
insufficient to support a conviction for conspiracy. Id.
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[43] Here, the men’s actions upon entering the McCarters’ residence showed that
they had entered into an agreement to burglarize and rob the McCarters.
Immediately after gaining entrance into the home by breaking the glass door,
one man, while armed with a weapon, forced Terry to the ground, and the
other three men then entered and began ransacking the house. One of those
three men went to the bedroom, pointed a gun at Patsy, and told her, “You’re
going to be robbed.” Tr. Vol. 2 at 170. While these two men confined the
McCarters, the other two men methodically went through the McCarters’
home, garage, and barn, ransacking the area and taking numerous items.
Afterwards, the men ordered both Terry and Patsy into the sunroom, and after
threatening Patsy and hitting Terry in the head with a gun, the men locked the
McCarters in the room and left. The actions of the men while in the
McCarters’ home showed that they had formulated a plan as to how to divide
their efforts while in the home which supports the conclusion that there was an
agreement between the men to commit the crimes of burglary and armed
robbery.
[44] Further, the cell phone records which were admitted at trial also supported this
conclusion. Based on cell phone tower data taken from April 1, 2017 and the
morning of April 2, when the burglary occurred, Reese, Cherry, and Drake
traveled from Indianapolis to Greencastle in different intervals at various times
in the evening. Tr. Vol. 3 at 115-19; State’s Ex. 133. The cell phone evidence
also showed that there were communications between Reese and the other two
men in the hours leading up to the burglary; the records showed that Cherry
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and Drake had been communicating with one another and that Drake and
Reese had been communicating with each other during that time period. Tr.
Vol. 3 at 125; State’s Exs. 123, 126, 129. Based on the actions of the men while
committing the burglary and armed robbery and the cell phone records, we
conclude that the jury could infer that Reese had agreed with either Cherry,
Randolph, or Drake to commit the crimes of burglary and armed robbery.
Sufficient evidence was presented to support Reese’s convictions for conspiracy
to commit burglary and conspiracy to commit armed robbery.
III. Double Jeopardy
[45] Reese argues that several of his nine convictions violate the prohibition against
double jeopardy. The Fifth Amendment to the United States Constitution
provides, “No person shall be subject for the same offence to be twice put in
jeopardy of life or limb.” Article 1, Section 14 of the Indiana Constitution sets
forth that “[n]o person shall be put in jeopardy twice for the same offense.”
[46] Under the federal constitution, multiple convictions will not be precluded if
each statutory offense requires proof of an additional fact which the other does
not. Robinson v. State, 835 N.E.2d 518, 522 (Ind. Ct. App. 2005) (citing
Blockburger v. United States, 284 U.S. 299, 304 (1932)). The Indiana Supreme
Court has developed a two-part test for Indiana double jeopardy claims, holding
that two or more offenses are the “same offense” in violation of Article 1,
Section 14, if, with respect to either the statutory elements of the challenged
crimes or the actual evidence used to convict, the essential elements of one
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 29 of 36
challenged offense also establish the essential elements of another challenged
offense. Sharp v. State, 951 N.E.2d 282, 286 (Ind. Ct. App. 2011) (citing
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Under the “statutory
elements test,” multiple convictions will not be precluded if each statutory
offense requires proof of an additional fact which the other does not. Id. (citing
Robinson, 835 N.E.2d at 522). We look only to the statutory elements of the
offenses in making this analysis. Id. Under the “actual evidence test,” the
evidence presented at trial is examined to determine whether each challenged
offense was established by separate and distinct facts. Lee v. State, 892 N.E.2d
1231, 1234 (Ind. 2008). To show that two challenged offenses constitute the
“same offense,” a defendant must demonstrate a reasonable possibility that the
evidentiary facts used by the factfinder to establish the essential elements of one
offense may also have been used to establish the essential elements of a second
challenged offense. Sharp, 951 N.E.2d at 287. “Application of this test requires
the court to identify the essential elements of each of the challenged crimes and
to evaluate the evidence from the factfinder’s perspective.” Id.
[47] Reese contends that his conviction for both Level 1 felony burglary and Level 2
felony burglary violate the double jeopardy prohibition. The State concedes
that these two convictions were improper because Level 2 felony burglary is a
lesser included offense of Level 1 felony burglary. See Ind. Code § 35-38-1-6
(“Whenever: (1) a defendant is charged with an offense and an included
offense in separate counts; and (2) the defendant is found guilty on both counts;
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 30 of 36
judgment and sentence may not be entered against the defendant for the
included offense.”).
[48] Reese also argues that his convictions for Level 2 felony conspiracy to commit
burglary and Level 3 felony conspiracy to commit armed robbery violate double
jeopardy under the actual evidence test because the two convictions rely on the
same evidence. The State also concedes that Reese’s convictions for both Level
2 felony conspiracy to commit burglary and Level 3 felony conspiracy to
commit armed robbery violate the double jeopardy prohibition because at trial
the State relied on same facts to establish both conspiracies.
[49] When a double jeopardy violation has occurred, the “reviewing court may
remedy the violation by reducing either conviction to a less serious form of the
same offense if doing so will eliminate the violation.” Thompson v. State, 82
N.E.3d 376, 383 (Ind. Ct. App. 2017) (citing Richardson, 717 N.E.2d at 54),
trans. denied. However, if doing so will not eliminate the violation, one of the
convictions must be vacated. Id. Reducing Reese’s convictions will not
eliminate the double jeopardy violations, so we must vacate Reese’s convictions
for Level 2 felony burglary and Level 3 felony conspiracy to commit armed
robbery since they are the convictions with lesser penal consequences. Vacating
these convictions and the corresponding sentences does not affect Reese’s
aggregate seventy-two-year sentence because the sentences for Level 2 felony
burglary and Level 3 felony conspiracy to commit armed robbery were ordered
to run concurrently with, and were lesser sentences than, the sentences for the
Level 1 felony burglary conviction and the two Level 3 felony armed robbery
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 31 of 36
convictions, which are the three sentences that comprise the seventy-two-year
aggregate sentence. Appellant’s App. Vol. 3 at 64; Tr. Vol. 3 at 172.14
IV. Inappropriate Sentence
[50] Reese asserts that his seventy-two-year aggregate sentence is inappropriate.
Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
[c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Our Supreme Court has explained
that the principal role of appellate review should be to attempt to leaven the
outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the
nature of Reese’s offense and his character under Appellate Rule 7(B) with
substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether
the defendant’s sentence is appropriate or if another sentence might be more
appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.
State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a
sentence is inappropriate ultimately depends upon “the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
14
Reese also argues that his convictions for two counts of armed robbery and his conviction for conspiracy to
commit armed robbery violate double jeopardy. However, this argument is rendered moot because we have
vacated Reese’s conviction for Level 3 felony conspiracy to commit armed robbery.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 32 of 36
of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224. Reese bears the burden of persuading us that his sentence is
inappropriate. Id.
[51] Initially, we note that, although he argues that his aggregate sentence of
seventy-two years executed is inappropriate because it constitutes a sentence for
the “substantial balance of his life,” Appellant’s Br. at 38, Reese has not
undertaken an analysis of why his sentence is inappropriate in light of the
nature of the offense and his character as is required under Appellate Rule 7(B).
He has therefore, waived this argument for failure to present a cogent
argument. Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015), trans.
denied. Although Reese has waived is inappropriateness argument, we will
proceed to address this issue on the merits.
[52] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, Reese
and his co-conspirators broke and entered the home of the McCarters, who
were both over the age of sixty-five, robbed them at gunpoint, destroyed their
home, and stole multiple items. After ransacking the house, the perpetrators
ordered the McCarters into the sunroom, where they threatened Patsy by
pointing a gun at her head, and then hit Terry in the head with the butt of a
gun, which caused severe injury that required surgery to relieve pressure on
Terry’s brain. The actions by Reese and his co-conspirators caused extensive
damage to the McCarters’ home. They ransacked the inside of the home,
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destroying many pieces of furniture, paintings, and other items that they did not
steal. Patsy testified that the furniture in their living room was covered in glass
shards and had to be thrown away. Tr. Vol. 2 at 178. The men stole Patsy’s
lifetime collection of jewelry, which included items of little monetary value but
great sentimental value to her that can never be replaced because they were
from her deceased mother. Id. at 170. The men also stole numerous other
items and $6,000 in cash that will never be returned to the McCarters. Reese’s
crimes caused physical harm and significant financial loss to the McCarters as
well as undermining their sense of security. We do not find that Reese’s
sentence is inappropriate in light of the nature of his offense.
[53] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d at 13. When considering the character of the
offender, one relevant fact is the defendant’s criminal history. Johnson v. State,
986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence presented at the
sentencing hearing showed that Reese has an extensive criminal history. His
criminal activity began when he was a juvenile with adjudications for
conversion, criminal mischief, and possession of marijuana. Appellant’s App.
Vol. 4 at 5-6. As an adult, before committing the present crimes, Reese had
been convicted of Class A misdemeanor resisting law enforcement, Class A
misdemeanor possession of marijuana, and Class A misdemeanor invasion of
privacy. Id. at 7-8. He also had convictions for Level 6 felony criminal
recklessness committed with a deadly weapon and Level 6 felony domestic
battery. Id. After he committed the instant offenses, Reese committed and was
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convicted twice for Level 6 felony resisting law enforcement, Level 5 felony
carrying a handgun with a felony conviction, and Class A misdemeanor
unlawful possession of a firearm by a domestic batterer. Id. at 9. At the time of
sentencing, Reese also had two pending cases, one where he had been arrested
and charged with Level 2 felony dealing in methamphetamine, Level 3 felony
possession of methamphetamine, Level 5 felony carrying a handgun with a
felony conviction, and Level 5 felony possession of a narcotic drug, and one
where he had been arrested and charged with Level 2 felony burglary with a
deadly weapon, Level 3 felony robbery, Level 3 felony criminal confinement,
Level 5 felony corrupt business influence, and Level 6 felony auto theft. Id. at
8-9. This criminal history shows that, rather than being deterred by his past
interactions with the criminal justice system, Reese has continued to commit
new crimes, many of which were still pending at the time he was sentenced in
the present case. We do not find that Reese’s sentence is inappropriate in light
of his character. We, therefore, conclude that Reese’s aggregate seventy-two-
year sentence in not inappropriate.
[54] In conclusion, we find that the trial court did not abuse its discretion in
admitting the evidence obtained as a result of the search warrant for Reese’s cell
phone records. We also conclude that, even if it was error for the trial court to
admit the Oxygen Forensics report, it was harmless error. We also find that
sufficient evidence was presented to establish that Reese was one of the men
who committed the burglary and to support Reese’s convictions for conspiracy
to commit burglary and conspiracy to commit armed robbery. Reese’s
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convictions for Level 2 felony burglary and Level 3 felony conspiracy to
commit armed robbery violated the double jeopardy prohibition, and we reverse
those convictions and remand to the trial court to vacate. However, vacating
those two convictions does not alter Reese’s aggregate sentence of seventy-two
years, and we do not find his sentence to be inappropriate in light of the nature
of the offense and character of the offender.
[55] Affirmed in part, reverse in part, and remanded with instructions.
Vaidik, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1985 |September 16, 2019 Page 36 of 36