Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 1 of 8 A TTORNEY FOR A PPELLANT Elizabeth A. Bellin Elkhart, Indiana A TTORNEYS FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Antoine D. Bates, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff May 23, 2017 Court of Appeals Case No. 20A03-1612-CR-2896 Appeal from the Elkhart Superior Court The Honorable Stephen R. Bowers, Judge Trial Court Cause No. 20D02-1409-FB-74
Vaidik, Chief Judge.Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 2 of 8 

# Case Summary
[1] At Antoine D. Bates’s jury trial for Clas s B felony burglary, the State disclosed for the first time that a wa llet (which the owner had lost over two years earlier) had been found in the area of the burg lary. Bates argued that this late disclosure violated Brady v. Maryland, 373 U.S. 83 (1963), which requires the prosecution to disclose evidence that is favorable to the defendant. The trial court found no Brady violation, and Bates was conv icted as charged. Bates now appeals, arguing a Brady violation and that the evid ence is insufficient to support his conviction.

[2] Because Brady does not impose a general requir ement of pretrial disclosure, Bates gives us no reason to believe th at the wallet’s owner could have offered evidence favorable to him, and Bates did not request a continuance when the disclosure was first made at trial, we find no Brady violation. In addition, because the victim saw Bates running aw ay from her house carrying property that had been inside, we find that the evidence is sufficient to support his burglary conviction. We therefore affirm. 

# Facts and Procedural History
[3] In November 2013, Nancy Medina and her husband, Manuel Torres, lived at Nancy’s parents’ house in Harrison Ridge subdivision in Goshen along with Nancy’s parents and three of her younger siblings. Nancy’s youngest brother was one year old at the time.Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 3 of 8 [4] On the night of November 9, Nancy and Manuel went with another couple to a dance club in South Bend to celebrat e Manuel’s twenty-sec ond birthday. The group left the club around 3 a.m., an d the other couple drove Nancy and Manuel home. Nancy was the first to en ter the house and left the door open for her husband. As Nancy h eaded to the bathroom, she saw a man standing in the kitchen. Tr. Vol. II p. 227; Tr. Vol. III p. 4. The man, later identified as Bates, said, “Don’t yell,” but Nanc y yelled for her husband and ran out of the house. Tr. Vol. II pp. 229-30. Bates followed Na ncy out of the house and ran into the street. Manuel, who was in the drivew ay, chased Bates for a short time but then stopped. During this time, Na ncy saw that Bates was carrying her brother’s Winnie the Pooh diaper bag that had been sitting on the kitchen table. It contained baby clothes an d a camera.

[5] Sergeant Scott Frey with the Elkhart Co unty Sheriff’s Department responded to a report of a burglary in progress at 3:35 a.m. After speaking with Nancy, he walked around the house to see if he could find a poin t of entry. Sergeant Frey found a screwdriver by the sliding-gla ss door. The locking mechanism on the sliding-glass door wa s damaged, as if something had been pushed into it. The screwdriver did not belong to Nancy or her family.

[6] Undercover Officer (UC) 152 1 also responded to the report of a burglary in progress. After receiving a de scription of Bates, he helped other officers set up a

1 This officer was not working undercover at the time of the burglary, but he wa s working undercover at the time of trial.Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 4 of 8 perimeter around the subdivision. Shortly thereafter, UC 152 saw a man matching the description walk out from a wooded area in the subdivision. UC 152 eventually apprehended an d arrested Bates. Officers did not find the diaper bag.

[7] Several days later, on November 15, offi cers, including a K-9 officer, searched “every inch” of the subdivision for the diaper bag but still did not find it. Id. at 191. The K-9 officer, however, found a wallet in the subdivision. He tracked down the wallet’s owner, who said he had lost his wallet over two years earlier. Id. at 207. The officers determined that the wallet was unrelated to this case and did not tell Bates about its discovery.

[8] Thereafter, the State charged Bates with Class B felony burglary. At the jury trial, one of the searching officers brie fly testified about the discovery of the wallet by the K-9 officer (who did not testify at trial). Id. at 207. Defense counsel cross-examined the officer a bout the wallet but did not ask for a continuance to pursue the matter.

[9] Instead, after the State completed its case in chief, Bates argued that the State’s failure to disclose the existence of the wallet before trial violated Brady . The trial court found no Brady violation, Tr. Vol. III pp. 61, 90-91, and the defense rested without presenting any evidence. Th e jury found Bates guilty as charged.

[10] Bates now appeals.Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 5 of 8 

# Discussion and Decision
[11] Bates raises two issues on a ppeal. First, he renews his Brady challenge. Second, he contends that th e evidence is insufficient to support his conviction. 

## I. Brady Violation
[12] Bates first contends that the State’s failur e to disclose the existence of the wallet before trial violated Brady. Brady and its progeny apply to the State’s failure to disclose favorable evidence th at is material to the accu sed’s guilt or punishment. Cone v. Bell , 556 U.S. 449, 469 (2009); Brady , 373 U.S. at 87. There are three components to a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is excu lpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice (materiality inquiry). Strickler v. Greene , 527 U.S. 263, 281-82 (1999). Evidence is materi al when there is a reason able probability that, had the evidence been disclosed, the resu lt of the proceeding would have been different. Cone , 556 U.S. at 470.

[13] Although Brady itself involved a request for pr etrial disclosure, most courts agree that Brady does not impose a general requirement of pretrial disclosure of exculpatory evidence. 6 Wayne R. LaFave et al., Criminal Procedure § 24.3(b) (4th ed. 2015); see also Williams v. State , 714 N.E.2d 644, 649 (Ind. 1999). For most exculpatory evidence, the prosecution is able to satisfy its constitutional obligation by disclosing the ev idence at trial. 6 LaFave, § 24.3(b). The burden rests with the defendant to establish that “the lateness of the disclosure soCourt of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 6 of 8 prejudiced defendant’s preparation or pr esentation of his defense that he was prevented from receiving his constitu tionally guaranteed fair trial.” Id. (quotation omitted). Moreover, if the defendant fails to request a continuance when the disclosure is first made at tria l, that failure may be viewed as negating any claim of actual prejudice. Id. ; see also Braswell v. State , 550 N.E.2d 1280, 1283 (Ind. 1990) (explaining that a co ntinuance could have been a proper remedy when the evidence was disclo sed during—and not before—trial; however, the defendant did not request a continuance).

[14] Bates’s Brady challenge fails for two reasons. Although Bates cross-examined the officer about the wallet, Bates claims that he was unable to question the wallet’s owner. But Bates gives us no reason to believe th at the owner could have offered evidence that was favora ble to him, either because it was exculpatory or impeaching. This is especi ally so given that the evidence before the court was that the owner had lost th e wallet two years earlier. Moreover, to the extent Bates argues that the State’ s late disclosure prevented him from making such a showing, Bates did not as k the trial court for a continuance to pursue the matter. We therefore find no Brady violation. 

## II. Sufficiency of the Evidence
[15] Bates next contends that the evidence is insufficient to supp ort his conviction for Class B felony burglary. When review ing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferenc es supporting the verdict. Sallee v. State , 51Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 7 of 8 N.E.3d 130, 133 (Ind. 2016). It is the fa ct-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. It is not necessary that the evidence “overcome every reasonab le hypothesis of innocence.” Id. (quotation omitted). “[T]he evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.” Drane v. State , 867 N.E.2d 144, 147 (Ind. 2007) (quotation omitted).

[16] In order to convict Bates of Class B felo ny burglary as charged here, the State had to prove that he brok e into and entered Nancy’s dwelling with intent to commit a felony, to wit: theft, in it. A ppellant’s App. Vol. II p. 40; Ind. Code Ann. § 35-43-2-1 (West 2012). Bates’s sole argument on appeal is that “there was no direct evidence that [he] formed the requisite intent to commit felony Theft at the time entry in to the home was made.” Appellant’s Br. p. 13.

[17] “Burglars rarely announce their intent ions at the moment of entry.” Baker v. State , 968 N.E.2d 227, 229 (Ind. 2012). A ccordingly, a burglar’s intent to commit a specific felony at the time of the breaking and entering may be inferred from the circumstances. Id. Here, when Nancy walked into the house, she saw Bates standing in the kitchen. She did not see anythi ng in his hands at the time. But when Nancy saw Bates running away from the house moments later, she saw that he was carrying her br other’s diaper bag that had been sitting on the kitchen table. Bates does not dispute Nancy’s testimony that she saw him carrying her brother’s diaper bag. Po ssession of stolen property supports an inference of intent to commit theft at the time of the breaking and entering.Court of Appeals of Indiana | Opinion 20A03-1612-CR-2896 | May 23, 2017 Page 8 of 8 Patterson v. State , 729 N.E.2d 1035, 1042 (Ind. Ct. App. 2000); McBride v. State , 597 N.E.2d 992, 994 (Ind. Ct. App. 19 92). Accordingly, we find that the evidence is sufficient to supp ort his conviction for Class B felony burglary.

[18] Affirmed. Bailey, J., and Robb, J., concur.