Herbert F. Breneman v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 03 2015, 5:38 am
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 ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Gregory F. Zoeller
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Herbert F. Breneman, December 3, 2015
Appellant-Defendant, Court of Appeals Case No.
82A04-1506-CR-550
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff Judge
Trial Court Cause No.
82C01-1501-F6-469
Baker, Judge.
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[1] Herbert Breneman appeals his conviction for Theft,1 a Level 6 felony.
Breneman argues that the evidence is insufficient to establish that he has a prior
unrelated conviction warranting the elevation of the crime from a class A
misdemeanor to a Level 6 felony. Finding the evidence sufficient, we affirm.
[2] On January 20, 2015, Wal-Mart loss prevention officer David Shephard
watched Breneman take a computer off of a shelf, remove the security alarm,
and attempt to leave the store without paying for the computer. On January 22,
2015, the State charged Breneman with class A misdemeanor theft and included
an enhancement to a Level 6 felony based upon a prior theft conviction. On
April 14, 2015, a jury found Breneman guilty of class A misdemeanor theft and
also found that he had a prior theft conviction, enhancing the conviction to a
Level 6 felony. The trial court sentenced Breneman to two and one-half years
imprisonment.
[3] Breneman’s sole argument on appeal is that the evidence does not support the
jury’s finding that he has a prior theft conviction. When reviewing the
sufficiency of the evidence supporting a conviction, we will neither reweigh the
evidence nor assess witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
(Ind. 2009). We will consider only the evidence supporting the judgment and
any reasonable inferences that may be drawn therefrom, and we will affirm if a
1
Ind. Code § 35-43-4-2(a).
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reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Id.
[4] Our Supreme Court has discussed the use of documents to establish the
existence of prior felony convictions:
“Certified copies of judgments or commitments containing a
defendant’s name or a similar name may be introduced to prove
the commission of prior felonies. Schlomer v. State, 580 N.E.2d
950, 958 (Ind. 1991) (citing Andrews v. State, 536 N.E.2d 507 (Ind.
1989)). While there must be supporting evidence to identify the
defendant as the person named in the documents, the evidence
may be circumstantial. Id.; see also Coker v. State, 455 N.E.2d 319,
322 (Ind. 1983). If the evidence yields logical and reasonable
inferences from which the finder of fact may determine beyond a
reasonable doubt that it was a defendant who was convicted of
the prior felony, then a sufficient connection has been shown.
Pointer v. State, 499 N.E.2d 1087, 1089 (Ind. 1986).”
Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (quoting Hernandez v. State, 716
N.E.2d 948, 953 (Ind. 1999)).
[5] In this case, the State offered into evidence certified copies of the charging
information, chronological case summary, and abstract of judgment for State of
Indiana v. Herbert Frank Breneman, No. 82C01-1307-FD-760. These documents
establish that Herbert F. Breneman was charged with class D felony theft on
July 11, 2013, that he pleaded guilty to the charge on August 8, 2014, and that
on the same date, he was sentenced to eighteen months imprisonment for the
crime.
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[6] Additionally, loss prevention officer Shephard, who observed Breneman
commit the theft in the case before us, was the same individual who
apprehended Breneman in his prior theft. Shephard testified that on June 12,
2013,2 he apprehended Breneman. He positively identified Breneman as the
same person who had committed theft in the past.
[7] In sum, the evidence shows the following: Shephard identified Breneman as
the individual who was charged with committing theft in the past. The
documents establish that the case number for that arrest is the same as the case
number showing that Breneman pleaded guilty to and was sentenced for that
crime. The name, including the middle name, was identical to the defendant
before the jury in this case. All of this circumstantial evidence leads to a logical
and reasonable inference that the Herbert F. Breneman in this case was the
same Herbert F. Breneman who was convicted of theft in 2014. We find this
evidence sufficient to support the jury’s finding that Breneman has a prior theft
conviction that enhances his current conviction to a Level 6 felony.
[8] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
2
We infer that the prosecutor made an inadvertent error by referring to June 2014 rather than June 2013
when asking Shephard about the prior incident.
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