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 de fense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : PATRICK A. DUFF GREGORY F. ZOELLER Duff Law, LLC Attorney General of Indiana Evansville, Indiana LARRY D. ALLEN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEA LS OF INDIANA

FILIBERTO RIVERA, ) ) Appellant

- Defendant, ) ) vs. ) No. 82A04

- 1305

- CR

- 264 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT

The Honorable Robert J. Pigman, Judge Cause No. 82D02

- 1206

- FC

- 684
March 18, 2014 MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Chief Judge2 Case Summary Filiberto Rivera appeals his convictions for Class C felony burglary, Class D felony theft, and two counts of C lass B misdemeanor criminal mischief, arguing that the evidence is insufficient to sustain them. He also argues that the trial court erred in ordering one criminal

- mischief sentence to be served consecutively to his other
concurrent sentences. Finding sufficient evidence and no abuse of discretion in sentencing, we affirm. Facts and Procedural History On June 20 , 2012, Evansville law

- enforcement officers were conducting rolling surveillance on a black, two

- door Acura. A round 1: 3 0 a.m., after temporarily losing sight of the Acura, officers spotted it parked outside Jaya’s Authentic Foods , a local restaurant that was closed for construction

. While officers watched, two men dressed in dark clothing ran out of Jaya’s , got into the Acura, and drove away. Tr. p. 50. O fficers approached Jaya’s and chec ked for signs of entry. They observed damage to the restaurant doors. Meanwhile, other officers followed the Acura, which parked in an apartment

complex parking lot near Lawndale Shopping Center. Id. at 59. Officers saw t wo men get out of the Acura an d approach the shopping center. The men were out of sight for a short time, but then reappeared atop the roof of the shopping center , above Roger s Jewelers

. Id. at 61. After moving around the roof for five or ten minutes, an audible alarm went off, and the men quickly returned to the Acura and drove away. Id. at 62. Officers check ed the roo f for signs of entry into Roger s Jewelers

. A ventilation shaft had3

been removed and the door to an air

- conditioning room above the jewelry store had been pried open . Through the ventilation shaft, officers saw foot prints and displaced ceiling tiles. Id. at 30, 157

- 58, 196

- 97. The Acura then traveled to Evansville ’s west side , and officers continued to follow
it

. Around 3:00 a.m., the Acura parked in an other apar tment

- complex parking lot. Id. at 68. T wo men got out of the Acura and walked toward Taste of China, a nearby
restaurant. A short time later , the two men were spotted on the rest au ra nt roof. L ights and movement were seen at different areas inside the r estaurant. Id. at 72, 305. Officers who had stationed themselves at different positions around Taste of China converged on the restaurant. Inside, t he restaurant was in disarray: t he cash register was
open and money had been removed. Id. at 35

- 36 . El ectronics, including a laptop and video

- game console , were piled near the door

. Id. at 35, 75

. The restaurant’s large air

conditioning unit had been moved , and the night sky was visible through the ceiling

. Id. at 36, 76

. O fficers found two men dressed in black clothing , Rivera and Myles Robinson, lying on the roof. A red Nike sports bag filled with tools , including screwdrivers, was found nearby. Id. at 84 , 92, 588. Both men were arrested. The officers took Rivera to the Vanderburgh County Sheriff ’s Department for questioning. After waiving his Miranda rights, Rivera told detectives that he and Robinson had been dropped off at Taste of China by an unknown man in a white car. Id. at 384, 386. He admitted that he and Robinson had entered Taste of C hina through a hole where the air

- conditioning unit had been

. Id. at 426. Rivera said when he saw police4

approaching Taste of China, he got nervous and climbed back to the roof without taking anything. Id. Rivera denied being present at Jaya’s or Lawnd ale Shopping Center. Id. The State charged Ri vera with twenty

- four counts, which were later consolidated
to seven: 1. Class C felony burglary (Taste of China)

2. Class D felony theft (Taste of China) 3. Class B misdemeanor criminal mischief (Taste of China) 4. Class C felony attempted burglary ( Roger s Jewelers) 5. Class C felony attempted burglary (Jaya’s restaurant) 6. Class B misdemeanor criminal mischief (Jaya’s restaurant) 7. Class B misde meanor criminal mischief (Roger s Jewelers)
See Appellant’s App. p. 11 (CCS); Tr. p. 702

- 09. At Rivera’s trial, the State presented physical and circumstantial evidence tying
him to Lawndale Shopping Center and Taste of China

. 1 T he State told the jury that the
Acura driven to Jaya’s, Lawndale Shopping Center, and Taste of China belonged to Rivera’s mother. A forensic scientist testified that footprints found on the roofs of Lawndale Shopping Center and Taste of China matched the tread of the Timberland boots Rivera was wearing when he was arrested. See State’s Ex. 210

- 213. The State introduced evidence of damage and repair costs for Lawndale Shopping Center ($100) and Taste of China ($1000). Tr. p. 32, 36. Officers present at Taste of China recounted watching two men ente r the restaurant and move around, and described the ope n cash register and electronics stacked by the door. The officers also described locating Rivera and Robinson on the roof, and the sports bag filled with tools nearby. In addition, detectives who interviewed Rivera after his arrest recounted his admissio n that he entered Taste of China. The State also disputed the suggestion that a third man named Sean

1 Robinson wa s tried separately. See Appellant’s App. p. 20 (CCS, motion to sever).5

Lucci was involved, explaining that authorities could locate no one by that name or a similar name. 2 See id. at 355

- 60. The State also introduced trans cripts of s everal calls Rivera made to family members during his trial

. 3 During one call , Rivera told his mother that he lied to detectives about being dropped off at Taste of China by an unknown man. Id. at 519 (“I lied to [the detective] you know[,] I said you know I was dropped off.”). In another call,
Rivera told his fiancée

— Robinson’s sister

— to instruct Robinson on what to say when he testified. Id. at 540

- 47

. Rivera testified and gave his account of the night’s events . He said that he drove th e Acura to Jaya’s and Lawndale Shopping Center, but waited in the car while Robinson
and Lucci went inside. Id. at 610

- 12. He said that he drove to Taste of China but waited in the car while Robinson and a man he did not know went inside

. Id. at 611

- 13. After hearing a loud noise, Rivera got “upset and scared” and went up on the roof to see what was happening. Id. at 61 4 . Rivera said that he called out to Robinson until Robinson “popped his head out of the hole [in the roof].” Id. at 616. Rivera cla imed that he and Robinson then argued until police arrived, but he “did not go into [Taste of China] at all.”
Id. at 621. Robinson made similar claims when he testified on Rivera’s behalf

. Robinson explained t hat he broke into Jaya’s, Roger s Jewelers, a nd Taste of China to support his drug habit, and that Rivera was not aware of or involved in this plan. Id. at 575

- 76.

2 It is not clear from the record who first provided the name Sean Lucci. Robinson testified that the alleged third man involved in the night’s events was Sean, but he said that he d id not know his last name. Tr. p. 572.

3 Rivera’s objection to this evidence was overruled. Tr. p. 465.6

The jury found Rivera guilty of four of the seven charges: Class C felony burglary (Count 1, Taste of China), Class D felony theft (Co unt 2, Taste of China) , and two counts of C lass B misdemeanor criminal mischief (Count 3, Tas te of China and Count 7, Roger s Jewelers). Appellant’s App. p. 30

- 32, 36. In sentencing Rivera, the trial co urt found his criminal history, which included fi ve p revious felony convictions

— including convictions for burglary and theft

— to be an aggravating factor. See Tr. p. 83 5, 83 7. The court found no mitigating factors. Id. at 837. The court sentenced Rivera to seven years on Count 1, two years on Count 2 , 180 days on count 3 , and 180 days on Count 7 , with 316 credit days. The court ordered
concurrent sen tences on Counts 1, 2, and 3 , but ordered Count 7 to be served consecutively to the others. Id. Rivera now appeals. Discussion and Decision On appeal, R ivera argues that the evidence is insufficient to sustain his convictions for burglary, theft, and two counts of criminal mischief. He also argues that the trial court erred when it ordered one of his sentences to be served consecutively to the other thre e. I. Sufficiency of the Evidence Rivera argues that the evidence is insufficient to sustain his convictions. When reviewing an insufficient

- evidence claim, we “consider[] only the evidence most favorable to the verdict and any reasonable inferences that m ay be drawn from that evidence. If a reasonable finder of fact could determine from the evidence that the7

defendant was guilty beyond a reasonable doubt, then we will uphold the verdict.” Baker
v. State , 968 N.E.2d 227, 299 (Ind. 2012) (citation omitted)

. We do not reweigh the evidence or judge witness credibility

— th ose evaluations are r eserved for the trier of fact. Id. (citations omitted). “In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be draw n from the evidence presented.” Id. (citation omitted).
A. Burglary and Theft In order to convict Rivera of Count 1, Class C felony burglary, the State was required to prove beyond a reasonable doubt that he broke and entered Taste of China

w ith the intent to commit theft inside

. See Ind

. Code § 35

- 43

- 2

- 1 ; Tr. p. 701. “Circumstantial evidence alone is sufficient to sustain a burglary conviction.” Baker , 968 N.E.2d at 230. To prove that Rivera committed Class D felony theft, the State was required to pro ve beyond a reasonable doubt that Rivera knowingly or intentionally exerted unauthorized control over Taste of China’s property with the intent to deprive the restaurant of any part of its value or use. See Ind. Code § 35

- 43

- 4

- 2; Tr. p. 702. Like burglar y, a theft conviction may be based on circumstantial evidence alone. Mork v.
State , 912 N.E.2d 408, 411 (Ind. Ct. App. 2009). The State presented sufficient evidence from which the jury could reasonably conclude that Rivera committed burglary and theft

. F ootprints found on Taste of China’s
roof match ed the Timberland boots Rivera was wearing when he was arrested , and i n his first interview with detectives, Rivera admitted entering the restaurant after 3:00 a.m. At trial, the State explained that the me n gained access to Taste of China by moving the air

-8

conditioning unit , damaging it in the process

. An officer observing the restaurant testified that he saw lights and movement at different areas inside. When Rivera and Robinson , both wearing black cloth ing, were caught on the restaurant roof , authorities

saw that the restaurant had been ransacked : the cash register was open and money was missing, and electronics, including a laptop and video

- game console, were piled near the door. Officers found a sport s bag filled with screwdrivers and other tools nearby

. In concluding that Rivera committed burglary and theft, the jurors, as triers of fact, were entitled to reject Rivera’s alternate description of the night’s events, particularly in light
of the incrim inating statements he made in phone calls to family members during his trial.
B. Criminal Mischief
There is also sufficient evidence to support Rivera’s convictions for two counts of criminal mischief

— Count 3 ( Taste of China ) and Count 7 ( Roger s Jewelers). In order to convict Rivera of Class B criminal mischief as charged, the State was required to prove beyond a reasonable doubt that he recklessly, knowingly, or intentionally damaged or def aced Taste of China’s and Roger s Jewelers ’ property without the cons ent of either entity. See Ind. Code § 35

- 43

- 1

- 2(a)(1); Tr. p. 703, 709. The evidence set forth previously is sufficient to sustain Rivera’s conviction for criminal mischief as to Taste of China. In addition to Rivera’s presence at the scene,
there was significant circumstantial evidence that he and Robinson moved Taste of China’s air

- conditioning unit to gain access to the restaurant. At trial, one law

enforcement officer testified that the unit was so heavy that one man alone could not9

move it. See Tr . p. 146 . The owner of Taste of China testified that the unit was damaged when it was moved and cost $1000 to repair. From this, a jury could reasonably conclude that Rivera committed criminal mischief. There is also sufficient evidence to sustain River a’s conviction for criminal mischief as to Rogers Jewelers. The State produced physical evidence

— footprints matching the Timberland boots Rivera was wearing when he was arrested

— placing Rivera on the roof of the shopping center just above the jewelry stor e. When officers checked the roof for signs of entry into Rogers Jewelers, they saw that a ventilation shaft had been removed and the door to an air

- conditioning room above the store had been pried open. Through the ventilation shaft, the officers saw fo ot prints and dis placed ceiling tiles. At Rivera’s trial, a witness testified that repair to this area of the shopping center cost $100. Although Rivera maintains that he waited in the car and was not involved in breaking into the jewelry store, th e jur y was entitled to determine that Rivera’s claim was not credible and could have reasonably conclude d that he committed a second count of criminal mischief.
II. Consecutive Sentencing Rivera also conten ds that the trial court erred when it order ed a consecuti ve sentence on Count 7 , Class B misdemeanor criminal mischief

. We will reverse

s entencing decisions, including the imposition of consecutive sentences, only upon a showing of abuse of discretion. Hull v. State , 839 N.E.2d 1 250, 1254 (Ind. Ct. App. 2005).10

A trial court may impose consecutive sentences “if warranted by the aggravating circumstances” under Indiana Code section 35

- 50

- 1

- 2

. Monroe v. State , 886 N.E.2d 578, 579 (Ind. 2009). It is well settled that a single aggravating circumstance may justify consecutive sentencing. Mathews v. State , 849 N.E.2d 578, 589 (Ind. 2006); Gilliam v.
State , 901 N.E.2d 72, 74 (Ind. Ct. App. 2009). Here, the trial court ordered Rivera’s 180

- day sentence on Count 7 (criminal mischief for Roger s Jewelers ) to b e serve d consecutive ly to his aggregate seven

- year
sentence on Counts 1, 2, and 3 (burglary, theft, and criminal mischief for Taste of China )

. In sentencing Rivera, the trial court noted a single, undisputed aggravating circumstance

— Rivera’s five previous felony convictions , including convictions for burglary and theft

— and found that there were no mitigating circumstances

. Rivera argues that , contrary to the trial court’s finding, there were a number of mitigating circumstance s. See Appellant’s Br. p. 23

- 24. Defense counsel’s sole argument regarding mitigation was that the crimes “appeared to be calculated to avoid violence of any kind.” Tr. p. 835. On appeal, Rivera appears to refer to this argument in claiming that the trial court erred in rejecting as a m itigating circumstance that the crimes “neither caused nor threatened serious harm to persons or property, or that [he] did not think it would do so.” Appellant’s Br. p. 23. But as our Supreme Court has said, whether or not to accept proffered mitigators is “the trial court’s call.” Anglemyer v. State , 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g , 875 N.E.2d 218 (Ind. 2007) . We cannot say that the trial court erred by declining to give mitigating weight to the contention that11

this offense neither caused nor threatened serious harm , particularly in light of the evid ence of financial damage. The remaining alleged mitigating circumstances, including the hardship Rivera’s incarceration would impose on his family, were not argued before the trial court. S ee Tr. p. 835. This fact is fatal to Rivera’s claim. A trial cou rt does not abuse its discretion in failing to consider a mitigating circumstance not raised at sentencing. See Anglemyer , 875 N.E.2d at 200. The trial court did not err in sentencing Rivera. 4
Affirmed. RILEY, J., and MAY, J., concur.

4 Rivera also suggests that the trial court erred because it did not discuss potential mitigating circumstances

—

it only stated that there were non e . See Appellant’s Br. p. 24

- 25. But a trial court is not required to expressly reject every potential mitigating circumstance

. See Stidham v. State , 637 N.E.2d 140, 144 (Ind. 1994) (Trial court was “not required to make an affirmative finding expressly negating each potential mitigating factor.”).