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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 defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jul 17 2008, 9:47 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: GREGORY PAUL KAUFFMAN Bluffton, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ARTURO RODRIGUEZ, II Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ALLEN LEE HOWELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A03-0804-CR-183

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Jerome Frese, Judge Cause No. 71D03-0606-FC-161

July 17, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Allen Lee Howell appeals his conviction for Class C felony burglary. Specifically, he contends that the evidence is insufficient to support his conviction and that the trial court erred in ordering him to pay $125,000 in restitution to the owner of the building he burglarized. Concluding that the evidence is sufficient to support Howell's conviction and that the trial court did not abuse its discretion in ordering Howell to pay $125,000 in restitution, we affirm. Facts and Procedural History On May 30, 2006, Officer Chris Krueger of the South Bend Police Department drove by a vacant industrial building that was for sale at 921 South Louise Street and noticed that a door was open. Officer Krueger was unable to secure the door because it could only be locked from the inside. He called the listing agent and left a message that the door was open. The following day, Officer Krueger met broker Doris Portolese to assist her in securing the building. However, the door that was open the previous day was now shut and locked. Portolese thought this to be impossible because she had the only key. Officer Krueger and Portolese walked around the building and noticed two cars. Officer Krueger heard voices and tools operating inside the building. Because Joseph Grabill, the building's owner, had not given anyone permission to use the building, Officer Krueger immediately instructed Portolese to go to her car and called for backup. When backup arrived, Officer Krueger and another officer, Corporal Demler, positioned themselves outside a door. A man, later identified as Howell's brother, 2

Charles Howell, 1 walked outside wearing work-type clothes and safety glasses and carrying tools and a flashlight. After Howell's brother was quickly handcuffed, Corporal Demler ordered those remaining inside to exit the building or else he would release his K-9. Howell exited the building wearing dirty clothes and safety glasses. Howell was then handcuffed. Grabill, who had since arrived on the scene, then entered the building to survey the damage. The building was "trashed," and there "was conduit ripped down all over the place." Tr. p. 134. There was water running into the building because the brothers had cut an active water line, which was a high-pressure water line. In addition, service panels, which were loaded with copper, were pried open and ripped apart. Thereafter, the State charged Howell with Class C felony burglary and also alleged that he was a habitual offender. Following a jury trial, the jury found him guilty of burglary. However, the judge found that Howell was not a habitual offender. At the sentencing hearing, Grabill testified that the estimates he received to repair the damage to 921 South Louise Street were "well in excess of $125,000." Sent. Tr. p. 19. The trial court sentenced Howell to "six years in the DOC as a condition of probation . . . for a very specific reason which is that I can at any time modify that condition of probation and I can release you from prison. And the State is not going to be able to say, well, you have to have our approval." Sent. Tr. p. 54. The court also ordered Howell to pay $125,000 in restitution to Grabill. Howell now appeals. Discussion and Decision

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Charles Howell ultimately pled guilty to theft for his role in these events.

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Howell raises two issues on appeal.

First, he contends that the evidence is

insufficient to support his conviction for burglary. Second, he contends that the trial court erred in ordering him to pay $125,000 in restitution to Grabill. I. Sufficiency of the Evidence Howell contends that the evidence is insufficient to support his conviction for burglary. When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder'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. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider only the evidence most favorable to the trial court's ruling. Id. Appellate courts affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. (quotation omitted). It is therefore not necessary that the evidence "overcome every reasonable hypothesis of innocence." Id. at 147 (quotation omitted). The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. In order to convict Howell of Class C felony burglary as charged in this case, the State had to prove that Howell broke and entered the building at 921 South Louise Street in South Bend, Indiana, with the intent to commit a theft therein. Ind. Code

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