Durkin v. State

988 N.E.2d 407

James M. DURKIN, Sr., Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 45A03–1207–CR–314.

Court of Appeals of Indiana.

May 24, 2013.

Appeal from the Lake Superior Court; The Honorable Salvador Vasquez, Judge; Cause No. 45G01–1004–FA–13.

P. Jeffrey Schlesinger, Appellate Public Defender, Crown Point, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

KIRSCH, Judge.

James M. Durkin, Sr. (“Durkin”) was convicted after a jury trial of robbery ¹ as a Class A felony and sentenced to thirty years executed. He appeals, raising the following restated issues for our review:

I. Whether the trial court abused its discretion when it allowed security camera footage showing some of Durkin's illegal conduct to be admitted into evidence;

II. Whether sufficient evidence was presented to support Durkin's conviction for robbery as a Class A felony;

III. Whether the trial court erred when it admitted merchandise tags into evidence that were inside the pocket of a jacket that was previously admitted and not objected to by Durkin; and

IV. Whether Durkin's sentence was inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 7, 2010, William Brittingham (“Brittingham”) and Jason Michael (“Michael”) were both working as loss prevention officers at Sears in the Southlake Mall in Hobart, Indiana. The loss prevention officers divided their time so that sometimes both officers would watch the cameras, sometimes one officer would be on the sales floor while the other watched the cameras, and sometimes both would be on the sales floor. Sears had over thirty security cameras located throughout the store that captured images of the cash registers, exits, and other areas in the store. The loss prevention officers could monitor the cameras from their office which contained monitors to observe the images captured by the cameras. The office was equipped with two large monitors on which the officers could watch selected views from different cameras. The office also had between eight and twelve smaller monitors. The images viewed on the larger monitors were recorded. The loss prevention officers received on-the-job training and approximately one week of computer training. Sears provided the officers with handcuffs, two-way radios, and identification cards. The primary goal for loss prevention officers was to recover stolen merchandise and return it to the sales floor for purchase.

During his shift on March 7, Brittingham was in the security office watching the sales floor from the monitors and observed a customer later identified as Durkin from a camera located in the men's cologne section. Men's cologne was a “high risk area” for the store. Tr. at 37. Durkin seemed “a little suspicious” and was “just not acting right.” Id. Brittingham observed Durkin put a cologne bottle in his jacket pocket and then take two more bottles. By following him with the store cameras, Brittingham saw Durkin leave the men's cologne section and enter men's clothing. While in men's clothing, Durkin selected some merchandise, took off his jacket, put on some merchandise, and then put his jacket back on over the top. From two or three different cameras and angles, Brittingham observed Durkin select other merchandise, roll it up, and put it in his jacket pockets. Durkin also unpackaged the cologne, placed the bottles back in his jacket, and discarded the packaging in one of the clothing racks.

Brittingham then left the security office to watch Durkin from the sales floor while Michael remained to watch the security cameras. While out on the sales floor, Brittingham saw Durkin head toward an exit door. He walked past two cash registers and toward a set of exit doors, which consisted of an inner set of doors, an empty space about eight to ten feet wide that serves as a breezeway, and then an outer set of doors that exited onto a sidewalk around the parking lot.

After Durkin passed all points of purchase and placed his hand on the first set of doors, Brittingham approached, identified himself as a Sears loss prevention officer, and asked Durkin to return to the store. Durkin turned back into the store, and Brittingham requested that Durkin put his hands on the wall, which Durkin did. However, Durkin was “real fidgety” and asked Brittingham to “please let me go, give me a break, just give me a break.” Id. at 43. Brittingham asked Durkin to place his hands behind his back so that Brittingham could handcuff him, and Durkin “turned into” Brittingham and “started to fight.” Id. Durkin attempted to get past Brittingham and exit the store. A struggle ensued, during which, Durkin pushed Brittingham into the first set of doors and “drove [him] through the second set of doors.” Id. at 44. Once the two were outside, Durkin continued to push Brittingham, and Brittingham's ankle snapped. Brittingham then fell to the ground. Durkin went around Brittingham, but Brittingham grabbed Durkin's jacket, and Durkin fell on top of him. Durkin continued to fight, and Brittingham maintained his hold on Durkin's jacket. Brittingham was “screaming in agony for someone to help.” Id. Durkin was able to pull loose from his jacket and flee the scene through the parking lot, leaving the jacket behind. A silver cell phone and bottles of cologne from the store were found inside the jacket.

When Michael saw Durkin pass the last point of sale without paying for any merchandise, he exited the loss prevention office. He ran from the office to the exit doors, and when he approached the doors, he saw Brittingham lying on the ground. Michael pursued Durkin across the parking lot, but was not able to catch him.

An ambulance was called, and Brittingham was taken to the hospital. It was determined that two bones in his lower leg were broken. Brittingham had surgery to place screws and plates in his leg to hold the bones together. A second surgery was also required, and a third surgery was also possible in the future.

Hobart City Police Detective Stephen Houck (“Detective Houck”) recovered the cell phone from Durkin's jacket. Although the service for the phone was no longer active, Detective Houck could view the stored phone numbers on the cell phone. The detective dialed a number labeled “kids,” and a person answered who identified himself as “James Durkin, Jr.” Id. at 213. That person gave Detective Houck the number for Durkin. Durkin returned the detective's call and denied any involvement with shoplifting or the attack on Brittingham. On March 19, 2010, Detective Houck showed Brittingham a photographic array, and Brittingham selected Durkin's picture as the man who shoplifted from Sears and attacked him.

The State charged Durkin with robbery as a Class A felony, robbery as a Class B felony, battery as a Class C felony, and theft as a Class D felony. A jury trial was held, at the beginning of which, the State dismissed the theft charge. At the conclusion of the trial, the jury found Durkin guilty of Class A felony robbery and Class B felony robbery and not guilty of Class C felony battery. The trial court only entered judgment on one count of Class A felony robbery and sentenced Durkin to thirty years executed. Durkin now appeals. Additional facts will be added as necessary.

DISCUSSION AND DECISION

I. Admission of the Security Video Footage

The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. Bradford v. State, 960 N .E.2d 871, 873 (Ind.Ct.App.2012) (citing Wilson v. State, 765 N.E .2d 1265, 1272 (Ind.2002)). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id. (citing Smith v. State, 754 N.E.2d 502, 504 (Ind.2001)). Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission of evidence constituted harmless error. Combs v. State, 895 N.E.2d 1252, 1255 (Ind.Ct.App.2008), trans. denied. Error is harmless if it does not affect the substantial rights of the defendant. Id. at 1258.

Durkin argues that the trial court abused its discretion when it admitted recorded video footage from the security cameras into evidence at trial. He specifically contends this was improper because the video recording was edited and was not a complete recording of what transpired in the Sears store. Durkin asserts that the edited recording did not show everything that occurred, including allegations that he took a jacket from the store, his walking past the cash registers, or any part of the altercation with Brittingham. Because his serious charges were based on such things, he claims that it was an abuse of discretion to admit an edited recording that did not include them.

Initially, we note that Durkin has failed to submit both the security footage that was admitted into evidence and the alleged relevant omitted footage to this court for our review. As a general rule, matters not contained in the record are not proper subjects for review. Herron v. State, 808 N.E.2d 172, 178 (Ind.Ct.App.2004), trans. denied. It is the duty of an appellant to present a record that is complete and that supports his claim of error so that an intelligent review of the issues may be made. Turner v. State, 508 N.E.2d 541, 543 (Ind.1987). “An appellant must see that the record of proceedings contains all pleadings, papers, and transcripts of testimony which disclose and have any bearing on the error he is alleging.” Id. Durkin's entire argument is that the trial court erred when it admitted the security camera footage, which was admitted as trial as State's Exhibit 5. Because of Durkin's failure to make sure that the security camera footage was a part of the record...