Court of Appeals of Indiana | Memorandum Decision 18A-CR-1872 | May 2, 2019 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

James C. Spencer

Dattilo Law Office

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandon McGaughey,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 2, 2019

Court of Appeals Case No.

18A-CR-1872

Appeal from the Jefferson Superior 

Court

The Honorable Michael J. 

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 2 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.