ELLIS v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Andrew L. Ellis appeals his convictions for Level 4 felony conspiracy to commit burglary,¹ Level 6 felony attempted theft,² and Class B misdemeanor unlawful use of a police radio.³ A jury also found Ellis is a habitual offender.⁴ Ellis raises one issue for our review: Did the State present sufficient evidence to support his convictions? We affirm.

Facts and Procedural History

[2] Rhonda Aslinger owns a home at 946 East Short Street in Winchester (the “Aslinger house”). In February 2023, Rhonda was in a nursing home, and her son, Christopher Aslinger (“Chris”), who was also known as “Ace,” was incarcerated. So Rhonda's granddaughter, Briahna Aslinger (“Bri”), had “Power of Attorney over” the house and was “[p]retty much” the one “in charge of looking after the property[.]” Tr. Vol. 2 at 116, 170. Although neither Bri nor Chris were living there, they had personal property in the house, including sports trading cards Chris collected. The house had been broken into a few times, so Bri had boarded up an unfixable back window.

[3] On the night of February 20, Bri was staying at a friend's house. The Winchester Police Department received a phone call saying some people were going to break into the Aslinger house at sunrise. Sergeant Nathaniel Detro (“Sergeant Detro”) and Officer Keagan Guffey (“Officer Guffey”) responded around 4:20 a.m. and went to check out the property. They parked down the street and approached the house from behind. Railroad tracks ran behind the house, and the backyard was fenced and partially wooded. They saw “no forced entry to the backdoor” and noticed the back window was still boarded up. Id. at 125. The adjacent property was vacant, so the officers waited near a pole barn on that property to watch the Aslinger house.

[4] After a few minutes, the officers saw two men—later identified as Ellis and William Clarkson—approach the Aslinger house from the railroad tracks. The men threw rocks in the general area where the officers were hiding before proceeding through the gate and to the back of the house. The officers heard the men pry the wood off the boarded-up back window. When the officers moved, a motion sensor light on the pole barn went off and the men ran. The officers yelled, “Police,” and a foot chase ensued with each officer pursuing one of the men. Id. at 159. When Sergeant Detro detained Ellis, Ellis was wearing a black sweatshirt, black sweatpants, a camouflage ski mask, and gloves. Ellis also had a CB radio tuned to the Randolph County dispatch frequency; as Sergeant Detro was talking with dispatch, he could hear himself through Ellis’ radio. The officers searched the property and discovered a pair of gloves and a baseball card outside beneath the broken-in window, sports cards just inside the window, and a flashlight and screwdriver along the fence line where Clarkson jumped it during the chase. The officers also found Clarkson's truck parked along the railroad tracks. Police contacted Bri, who told them Ellis did not have permission to be at the house.

[5] During his investigation, Sergeant Detro applied for and obtained a search warrant for business records from Clarkson's Facebook account. The records included messages sent between Clarkson's account and a user named “Andrew Ellis.” On February 4, Ellis wrote, “I gotta little tip for ya ․ there's some money in it for ya but you'd have to hurry[.]” Ex. Vol. 3 at 43. Clarkson asked, “Does anyone stay there ․ Like bree,” and Ellis responded, “Na they all went.” Id. at 44. On February 13, Ellis told Clarkson, “I'm ready to find some s*** in there that's money in the bank take it someplace tomorrow and it sell no problem for some dollars.” Id. at 47. Ellis also said, “I'ma take the dog some food to occupy it so we can jam the front door shut and unlock the back one incase some body shows up that way we can split.” Id. at 48. A few hours later, Ellis wrote, “Wth happened to ya son?? I never found that briefcase that he had [a] bunch of cards in. ․ I couldn't find anything that had any big name rookie cards ․ and I know [he's] gotta have [them.]” Id. Then, around 10:30 p.m. on February 19, Ellis sent the following messages to Clarkson:

Bro I got to thinking. ․ I've never seen anyone produce any serious cards or items in general ․ and then it hit me that I was told when the cops had gone to [Ace's] house over the stolen trailer ․ that [A]ce was in there the whole time hiding in this spot that I know how to get to and I wonder if he ain't got s*** stashed there․

I think it's time to throw on some black clothes and go back in there one last time and actually check the place out decently real fast. Just gotta make sure and mask up cause there was talk of someone sticking trail cams around there somewhere.

Id. at 50–51. At around 1:00 a.m. on February 20, Ellis wrote, “Yup we're going.” Id. at 51.

[6] For these actions, the State charged Ellis with Level 4 felony attempted burglary, Level 4 felony conspiracy to commit burglary, Level 6 felony attempted theft, and Class B misdemeanor unlawful use of a police radio. The State also alleged Ellis was a habitual offender.

[7] Before trial, the State moved to exclude evidence of Chris’ criminal history and incarceration at the time of the relevant events. Ellis objected, arguing that to establish a defense, he needed to show the police never contacted Chris during the investigation despite knowing where Chris was. The trial court granted the State's motion and directed the parties “not to mention that [Chris] was incarcerated at the Randolph County Jail on criminal charges in opening statement, or to question the State's witness about such information.” Appellant's App. Vol. 2 at 59.

[8] A two-day jury trial began February 5, 2024. During phase one, Bri testified she did not permit Ellis to be on the property or enter the Aslinger house. Chris testified he never gave anyone permission to enter the house on February 20, but also that he had known Ellis for over fifteen years and “never had a problem with him being out” at the house. Tr. Vol. 2 at 169. Despite the trial court's ruling on the motion in limine, the State then elicited Chris’ testimony that he was in jail during the relevant events. Sergeant Detro confirmed he never interviewed Chris during the investigation.

[9] The jury found Ellis not guilty of attempted burglary and guilty of conspiracy to commit burglary, attempted theft, and unlawful use of a police radio. In phase two, Ellis stipulated to certain prior convictions, and the jury found Ellis was a habitual offender. The trial court sentenced Ellis to eight years for conspiracy to commit burglary, enhanced by nine years for the habitual offender adjudication, for a total of seventeen years; two years for attempted theft; and one hundred eighty days for unlawful use of a police radio. The trial court ordered Ellis to serve the terms concurrently, with fifteen years executed in the Department of Correction and two years suspended to probation.

The State presented sufficient evidence to sustain Ellis’ convictions.

[10] Ellis challenges the sufficiency of the evidence to support his convictions. A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[11] As to his conspiracy to commit burglary and attempted theft convictions, Ellis’ chief complaint on appeal is the State failed to prove beyond a reasonable doubt he had no permission to be at the Aslinger house. To convict Ellis of Level 4 felony conspiracy to commit burglary as charged, the State was required to prove Ellis agreed with Clarkson to break and enter the Aslinger house with intent to commit theft and committed an act in furtherance of the agreement by traveling to the house. See I.C. § 35-43-2-1(1); I.C. § 35-41-5-2; Appellant's App. Vol. 2 at 42. To convict Ellis of Level 6 felony attempted theft as charged, the State was required to prove Ellis—who had a prior unrelated conviction for criminal conversion—removed a window screen, plywood, and sports cards, which constituted a substantial step toward knowingly or intentionally exerting unauthorized control over Bri's or Chris’ sports cards with intent to deprive them of any part of the use or value of the cards. See I.C. § 35-43-4-2(a)(1)(C)(ii);⁵ I.C. § 35-41-5-1; Appellant's App. Vol. 2 at 43.

[12] Ellis argues there was no documentary evidence that Bri had power of attorney over the property, as she testified. But the State was not required to prove Bri's precise legal relationship with the property. Burglary is the breaking and entering of the building or structure “of another person” with the intent to commit a specific felony therein. I.C. § 35-43-2-1. Officer Guffey testified Rhonda owned the Aslinger house, Bri testified she was responsible for taking care of it, and Chris testified Bri oversaw the property while he was in jail.⁶ This was sufficient evidence to prove the Aslinger house was not Ellis’ property.

[13] Ellis also claims because Chris knew Ellis for around fifteen years, the relationship “raises reasonable doubt about Ellis's intent to commit a crime, as it suggests a possible misunderstanding, rather than criminal intent.” Appellant's Br. at 17. A burglar's intent to commit a specific felony when breaking and entering may be inferred from the circumstances. Baker v. State, 968 N.E.2d 227, 229–30 (Ind. 2012). Indeed, “the mens rea element for a criminal offense is almost inevitably, absent a defendant's confession or admission, a matter of circumstantial proof.” Hampton v. State, 961 N.E.2d 480, 487 (Ind. 2012). And although the State in this case presented both direct and circumstantial evidence, a “burglary or theft conviction may be sustained by circumstantial evidence alone.” Ward v. State, 439 N.E.2d 156, 159 (Ind. 1982).

[14] Here, immediately before Ellis and Clarkson arrived on scene, Sergeant Detro observed the back window of the Aslinger house was boarded up. Police then saw the men sneak into the backyard from across the railroad tracks sometime around 4:30 a.m., when it was dark. The officers heard Ellis and Clarkson removing boards from the back window, and when the officers approached, the men fled. When apprehended, Ellis was dressed head to toe in black clothing, a ski mask, and gloves. The police found a screwdriver and flashlight near the fence Clarkson jumped. Ellis was carrying an operating CB radio tuned to the local emergency dispatch frequency. The officers found at least one baseball card on the ground outside the broken window and more sports cards within reach just inside it. Police found Clarkson's truck parked by the railroad tracks at the back of the house. Bri testified Ellis did not have permission to be in the house at the time of the crimes. Although Chris was equivocal in his testimony about whether he allowed Ellis to be there, we respect the jury's exclusive role to weigh conflicting evidence and judge witness credibility. See Brantley, 91 N.E.3d at 570.

[15] Moreover, days before the crimes, Ellis sent Clarkson messages about a collection of sports cards inside the Aslinger house he thought might be worth money.⁷ He told Clarkson he believed the Aslinger house was empty. He wrote about going to the house and jamming the front door so if someone showed up, “we can split.” Ex. Vol. 3 at 48. Mere hours before the events, Ellis sent Clarkson a message about masking up and throwing on black clothes to search the house. Ellis then confirmed, “Yup we're going.” Id. at 51. These messages show Ellis knew he did not have permission to be in the house or exercise control over the sports trading cards.

[16] In sum, the State presented overwhelming evidence to sustain Ellis’ convictions. See Williams v. State, 983 N.E.2d 661, 669 (Ind. Ct. App. 2013) (evidence the defendant and his co-conspirator discussed a plan to steal items from the victim's house a month before the burglary, and the defendant's acts of driving to the victim's house, entering the home, and touching and moving the victim's property once inside could sustain a conviction for conspiracy to commit burglary); Lewis v. State, 700 N.E.2d 485, 487–88 (Ind. Ct. App. 1998) (evidence the defendant broke and entered a building and moved some property outside before being apprehended while fleeing was sufficient to support a conviction for attempted theft).

[17] Ellis also argues “the prosecution did not present evidence that Ellis used the radio to facilitate the commission of a crime[.]” Appellant's Br. at 18. To convict Ellis of Class B misdemeanor unlawful use of a police radio as charged, the State was required to prove Ellis knowingly or intentionally possessed a portable police radio to avoid detection by law enforcement. See I.C. § 35-44.1-2-7(a)(3)(C); Appellant's App. Vol. 2 at 43. Ellis was carrying the CB radio while committing two crimes. The radio was tuned to the local dispatch frequency, and the arresting officer heard himself through the radio after apprehending a fleeing suspect. This was sufficient evidence to support a reasonable inference Ellis was using the radio to avoid detection by law enforcement.

Conclusion

[18] Sufficient evidence supports Ellis’ convictions.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-2-1(1) (2014) (burglary); I.C. § 35-41-5-2 (2014) (conspiracy).

2.   I.C. § 35-43-4-2(a)(1)(C)(ii) (2022) (theft); I.C. § 35-41-5-1 (2014) (attempt). The judgment of conviction and sentencing order indicate the jury found Ellis guilty of theft under subsection (a)(1)(A) (theft where the value of property is at least $750 and less than $50,000); however, Ellis was charged, tried, and convicted under subsection (a)(1)(C)(ii) (theft if the person has a prior unrelated conviction for criminal conversion).

3.   I.C. § 35-44.1-2-7(a)(3)(C) (2019). The judgment of conviction and sentencing order indicate the jury found Ellis guilty under subsection (a)(1) of the statute (possession of a police radio), but Ellis was charged, tried, and convicted under subsection (a)(3)(C) (possession of a police radio to avoid detection by a law enforcement agency).

4.   I.C. § 35-50-2-8 (2023).

5.   The State presented evidence of Ellis’ prior conversion conviction, and Ellis does not challenge the sufficiency of this element on appeal.

6.   Even though the trial court granted the State's motion in limine, the State elicited testimony from Chris at trial that he was in jail at the relevant times. Ellis briefly argues on appeal the trial court abused its discretion in granting the motion in limine and excluding testimony about Chris’ location. But because the evidence was ultimately admitted, we cannot provide Ellis relief on this issue and agree with the State it is now moot. See Bell v. State, 1 N.E.3d 190, 192 (Ind. Ct. App. 2013) (“[W]hen we are unable to provide effective relief upon an issue, the issue is deemed moot, and we will not reverse the trial court's determination where absolutely no change in the status quo will result.”) (quotation omitted).

7.   Ellis also briefly argues the Facebook messages were “admitted without a link to Ellis,” apparently arguing the trial court admitted them despite “a lack of proper foundation and authenticity.” Appellant's Br. at 19, 18. Ellis does not cite the applicable Indiana Evidence Rule, any case law, or the appropriate standard of review to support his argument. Our appellate rules require the appellant's contentions to be “supported by citations to the authorities, statutes, and the Appendix or part of the Record on Appeal relied on” and “the argument must include for each issue a concise statement of the applicable standard of review[.]” Ind. Appellate Rule 46(A)(8)(a)–(b). We will not become an advocate for a party or address arguments too poorly developed to be understood. See Terpstra v. Farmers & Merchs. Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985), trans. denied. And “it is well settled that where appellants fail to cite any authority in support of their arguments, the issues are waived.” Id. Accordingly, Ellis waived his argument concerning the admissibility of the Facebook messages.

Kenworthy, Judge.

Mathias, J., and Brown, J., concur.