The Indiana Court of Appeals has affirmed a man’s various felony theft and burglary convictions after finding there was sufficient evidence to prove he broke into the dwelling of nursing home residents and stole narcotics worth more than $3,000.
In Caleb Sullivan v. State of Indiana, 52A02-1610-CR-2499, Caleb Sullivan and his friend, Wally Taylor, devised a plan to break into a nursing home where Sullivan formerly worked and steal narcotics from the facility. When they arrived at the facility, Sullivan put on a mask and blue surgical gloves, took a BB-gun from his vehicle and entered the facility from a side entrance.
Doreen Brunner, an employee on duty that night, unlocked a box and placed blister packs of narcotics into a bag Sullivan handed her, then provided him with the code to exit the facility. Despite his disguise, Brunner, Sullivan’s former boss, recognized him from his build and gait and the fact that he knew the facility’s entrance code and the location of the narcotics box.
Sullivan and Taylor split the 642 pills they had stolen in half, and Taylor sold 60 to 70 of his pills for a total of $400, or about $5 each. Meanwhile, Brunner called 911, and police eventually found and arrested Sullivan. He was charged with a slew of felonies, including burglary, robbery, residential entry, conspiracy to commit dealing in a controlled substance and theft, as well as a misdemeanor possession charge.
A jury found Sullivan guilty as charged, but the trial court vacated to residential entry conviction to avoid double jeopardy concerns. Sullivan was then sentenced to an aggregate of eight years. On appeal, he argued the evidence was insufficient to support his convictions for burglary and theft.
But in a Thursday opinion, the Indiana Court of Appeals rejected that argument, with Judge John Baker writing the common dining area through which Sullivan had entered the nursing facility constituted a “dwelling” for purposes of Indiana Code 35-31-5.2-107. That determination is sufficient to support a burglary conviction, Baker wrote.
Further, Baker wrote there was sufficient evidence to establish the value of the stolen pills at roughly $5 each, or roughly $3,200, and there was no reason to question that evidence simply because it was based on the black-market value, not the commercial “pharmacy” value. Thus, the court also affirmed Sullivan’s theft conviction.
Finally, because the state charged Sullivan’s theft offense as a Level 6 felony, “it needed to take the additional step of proving that the stolen property valued at least $750 – evidence that is not needed to establish the overt act element of the conspiracy (to commit dealing in a controlled substance) charge.” Thus, charging Sullivan with both theft and conspiracy was not a double jeopardy violation, the court found.