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Sullivan v. State

Court of Appeals of Indiana

May 25, 2017

Caleb Sullivan, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Miami Circuit Court No. 52C01-1509-F2-35 The Honorable Timothy P. Spahr, Judge.

          Attorney for Appellant Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana.

          BAKER, JUDGE.

         [¶1] Caleb Sullivan appeals his convictions for Level 4 Felony Burglary, [1] Level 6 Felony Conspiracy to Commit Dealing in a Controlled Substance, [2] and Level 6 Felony Theft.[3] Sullivan raises two arguments: (1) there is insufficient evidence supporting his convictions for burglary and theft; and (2) his convictions for conspiracy to commit dealing in a controlled substance and theft are barred by the prohibition against double jeopardy. Finding sufficient evidence and no double jeopardy violation, we affirm.

         Facts

         [¶2] On the night of September 23, 2015, Sullivan was staying in Peru with his friend, Wally Taylor, and Taylor's girlfriend, Jennifer Rairigh. Sullivan and Taylor were regular drug users and wanted to get high. Sullivan brought up the idea of robbing a nursing home where he used to work. Sullivan knew how to gain access to the nursing home and knew that there were narcotics inside. Sullivan and Taylor agreed to steal narcotics from the nursing facility and then sell those drugs for money to buy heroin.

         [¶3] Around 1:00 a.m. on September 24, 2015, Taylor and Sullivan took Rairigh's minivan and drove to the Aperion Health Care nursing home facility. Sullivan exited the van to see who was working that night; when he returned, he told Taylor that his old boss, Doreen Brunner, was on duty. Sullivan donned a mask and blue surgical gloves, took a black BB-gun from the minivan, and entered the Aperion facility from the side entrance. Taylor waited in the minivan in the parking lot.

         [¶4] Inside, Brunner looked up and saw a masked man approach the nurse's station in the common dining room area. Sullivan appeared to be holding a gun at his waist and ordered Brunner to "open the box." Tr. Vol. II p. 150-51. He flipped open a drawer on the cart where the narcotics were stored and told Brunner, "Hurry up. I'm not playing." Id. at 151. Brunner noticed that Sullivan was trying to disguise his voice. She unlocked the box and placed blister packs of narcotics into a bag that Sullivan handed her. Sullivan then asked for the code he could use to exit the facility, which she provided.[4] Sullivan ran to the door, punched in the code, and exited the building.

         [¶5] Brunner immediately called 911. Although Sullivan had been wearing a mask, Brunner recognized him from his gait and general body build. She also believed it was him because he knew the security code to enter the facility, knew that he needed a different code to exit the facility, and knew where the narcotics box was located.

         [¶6] Following the burglary, Sullivan returned to the minivan, which Taylor drove back to Rairigh's home. Rairigh was angry because she had been trying to contact Taylor and he had not responded, so she refused to let the men inside the house. Sullivan and Taylor walked to an abandoned house a couple of blocks away, where they removed the medication from the blister packs. In total, Sullivan had taken 642 pills of controlled substances, including Vicodin, Xanax, Percocet, Ultram, and Ambien. Sullivan and Taylor each took half of the pills. After they parted ways, Taylor sold sixty to seventy of the pills for a total of $400, or about $5 apiece.

         [¶7] Police eventually found and arrested Sullivan. On September 30, 2015, the State charged Sullivan with multiple offenses. After a later amendment, Sullivan was ultimately charged with the following crimes: Level 4 felony burglary, Level 5 felony robbery, Level 6 felony residential entry, Level 6 felony conspiracy to commit dealing in a controlled substance, Level 6 felony theft, and Class A misdemeanor possession of a controlled substance.

         [¶8] On August 31, 2016, following a trial, a jury found Sullivan guilty as charged. The trial court vacated the residential entry conviction to avoid double jeopardy concerns. On September 30, 2016, following a sentencing hearing, the trial court sentenced Sullivan to the following concurrent terms: eight years, with two years suspended to probation, for Level 4 felony burglary; eight years, with two years suspended to probation, for Level 5 felony robbery; one year and 182 days for Level 6 felony conspiracy; ...


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