COA: Lack of ‘breaking’ evidence in liquor store burglary leads to reversal

Evidence was sufficient to identify a Huntington man as the perpetrator of a liquor store robbery, but there wasn’t enough proof to sustain his conviction for breaking and entering in the same crime, the Indiana Court of Appeals ruled in a Monday reversal.

During the early morning hours of May 25, 2019, a liquor store robbery took place in Huntington. The perpetrator was a man wearing black shoes, black pants, a black hoodie, “green and gray gloves” and a bandana over his face. The man robbed a cashier at Save-On Liquor, taking $150 in cash and rolls of coins in a paper bag from the store.

Anthony Wilburn, who was walking near the store, was later apprehended and searched by law enforcement, who discovered rolls of coins and a brown paper bag containing loose dollar bills in his pants. The bag had a marking similar to those used at the store.

Wilburn was wearing black pants, boots and a white tank top at the time he was found. Meanwhile, police found a black jacket with a hood, a baseball cap, a black, yellow and white bandana, two gloves and a replica handgun on the streets near the liquor store. A subsequent DNA analysis of the jacket showed “very strong support for the proposition that Anthony T. Wilburn is a contributor to the DNA profile.”

The cashier of the store who was working at the time of the crime later informed officers that she thought Wilburn was the robber. She said Wilburn was a friend of another Save-On Liquor employee and had frequented the store many times before, adding that she was familiar with his voice.

Wilburn was subsequently convicted of Level 2 felony burglary and Level 3 robbery, both merged at sentencing, as well as Class A misdemeanor resisting law enforcement. He also entered on admission to a habitual offender enhancement and was sentenced to an aggregate of 34 years.

During trial, Wilburn had lost on a motion to exclude evidence regarding infrared photography comparison because he was not informed of Sgt. Timothy Dolby’s expert testimony pursuant to a Huntington County local rule. The state had argued Dolby was a skilled, not expert, witness.

Dolby testified that he took photographs of the bandana, boots and pants using his infrared camera and compared the photographs to the surveillance video taken by the infrared-assisted security camera at the store. He testified that the pants, bandana and boots were “similar” to those on the footage.

“Without this testimony, the jury would not likely have been able to understand the significance of the infrared-assisted surveillance video and the photographs taken of the pants, boots, and bandana. Sergeant Dolby’s testimony, however, did not rise to the level of expert testimony,” Judge Elizabeth Tavitas wrote for the COA in partially affirming the trial court.

Although the COA found the Huntington Circuit Court did not abuse its discretion when it admitted the sergeant’s testimony as skilled witness opinion, it did find insufficient evidence to sustain Wilburn’s conviction for burglary of a business that was open to the public during business hours.

“… (U)nder the State’s argument, whether a person has consent to enter is dependent upon the person’s intent,” Tavitas wrote. “A burglary offense would be complete when a person entered a public business during business hours with the intent to commit a felony even if the person changed his or her mind and merely shopped in the store.

“The burglary statute requires that the defendant ‘breaks and enters the building or structure of another person, with intent to commit a felony or theft in it,’” the judge continued. “… Accordingly, the statute requires both a breaking and entering and the intent to commit a felony or theft. Under the State’s argument, the breaking element would be ignored.

“Here, Save-On Liquor was still open for business, and Wilburn entered through the unlocked front door. We conclude that the evidence is insufficient to sustain Wilburn’s conviction for burglary of a business open to the public during business hours because there is a lack of evidence as to breaking.”

But the appellate court rejected Wilburn’s argument that there was insufficient evidence identifying him as the perpetrator, finding the cashier’s testimony was not incredibly dubious.

The court therefore reversed Wilburn’s conviction and ordered on remand that the trial court enter judgment of conviction for robbery and resentence him accordingly. The case is Anthony Wilburn v. State of Indiana, 20A-CR-1709.