Arturo Martinez, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 24, 2016
• Docket: 27A02-1511-CR-1981
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 24 2016, 8:41 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jerry T. Drook Gregory F. Zoeller Marion, Indiana Attorney General of Indiana

Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Arturo Martinez, Jr., June 24, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1511-CR-1981 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Warren Haas, Appellee-Plaintiff. Judge Trial Court Cause No. 27D03-1406-FD-244 27D03-1504-F6-133

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 1 of 6 [1] Arturo Martinez, Jr. appeals his conviction after a jury trial of Level 6 felony

attempted residential entry. 1 He argues the evidence was insufficient to support

his conviction because the State did not prove he acted with the requisite intent

or took a substantial step toward commission of the crime. Because the

evidence was sufficient for the jury to find Martinez guilty beyond a reasonable

doubt, we affirm.

Facts and Procedural History [2] On April 9, 2015, Amber Meeks lived close to a building where Martinez had

been living for about a month. Sometime in the early evening, Meeks,

Martinez, and their mutual acquaintance, Michael Shrout, chatted briefly.

Meeks and Shrout then left to retrieve Meeks’ vehicle.

[3] About thirty minutes later, Meeks and Shrout returned together in Meeks’

vehicle. As they turned into the alley, the vehicle’s headlights pointed directly

at Meek’s front door. Meeks and Shrout saw Martinez at her door on his knees

holding a flashlight in one hand and some object in the other. Meeks described

the object in his hand as a screwdriver, while Shrout was not able to identify it.

Meeks shouted at Martinez and asked him what he was doing. He turned to

face them and, without responding, ran to his apartment. Meeks and Shrout

1 Ind. Code § 35-43-2-1.5.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 2 of 6 both noticed fresh damage to the door, and Meeks called 911 to report a

burglary.

[4] Officer Humberto Antonio Arauz responded to the call. Officer Arauz also

noticed the damage to Meeks’ door and agreed that it looked as if someone

tried to pry the door open. Officer Arauz and another officer banged on

Martinez’s door and windows, but Martinez did not answer the door.

Approximately twenty minutes later, Martinez exited his residence and

explained to Officer Arauz that he took his trash out around 12:19 a.m. and

heard Meeks yell, but thought that she was arguing with Shrout, so he went

back inside.

[5] The State charged Martinez with Level 6 felony attempted residential entry.

After a jury found him guilty, the trial court entered a judgment of conviction.

Discussion and Decision [6] When reviewing sufficiency of the evidence in support of a conviction, we

consider only probative evidence in the light most favorable to the trial court’s

judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

verdict comes before us with a presumption of legitimacy, and we will not

substitute our judgment for that of the jury. Id.

We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact . . . . [We] affirm the conviction unless no

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 3 of 6 reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. This evidence need not overcome every reasonable hypothesis of innocence; it is sufficient so long as an inference may reasonably be drawn from it to support the verdict.

Pillow v. State, 986 N.E.2d 343, 344-45 (Ind. Ct. App. 2013) (internal citations

and quotations omitted).

[7] The elements of Level 6 felony attempted residential entry are met when a

person knowingly or intentionally performs a substantial step toward breaking

and entering the dwelling of another. Ind. Code § 35-41-5-1 (attempt); Ind.

Code § 35-43-2-1.5 (residential entry). A substantial step is any overt act

beyond mere preparation and in furtherance of an intent to commit the crime.

Williams v. State, 685 N.E.2d 730, 734 (Ind. Ct. App. 1997). To show a

breaking occurred, the State need only introduce evidence that the slightest

force was used, which could even be pushing open a slightly ajar door. Jenkins

v. State, 34 N.E.3d 258, 261 (Ind. Ct. App. 2015), trans. denied.

[8] Martinez argues the evidence was insufficient for two reasons. First, he

contends there was a lack of evidence he intended to break and enter Meeks’

house. Second, he claims his actions were not a substantial step. In support

thereof, he notes no tool was conclusively identified, and Meeks and Shrout did

not see him prying on the door. He contends his presence near Meeks’ door,

without more, is not enough to prove the elements of attempted residential

entry beyond a reasonable doubt. While true, there is more.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 4 of 6 [9] The facts most favorable to the judgment show that Martinez knew Meeks and

Shrout would be gone. Meeks and Shrout both saw Martinez directly in front

of Meeks’ door on his knees with a flashlight and some other object in his hand.

Martinez “took off running” back to his apartment when Meeks yelled at him.

(Tr. 38). There was fresh damage to the door as if someone had tried to pry it

open.

[10] The evidence is not insufficient simply because the object in Martinez’s hand

was not conclusively identified. See Word v. State, 261 N.E.2d 225, 227 (Ind.

1970) (sufficient evidence to establish a breaking where a screwdriver was used

to gain entry to a car leaving pry marks on the door, even though no eyewitness

conclusively identified the object, proved the pry marks were made when Word

entered, or proved the screwdriver belonged to him). Nor is the evidence

insufficient simply because they did not see him prying, when he had a tool and

left pry marks on the door. See Jenkins, 34 N.E.3d at 261 (pushing open a

slightly ajar door is breaking). Rather, from the evidence presented, the jury

could reasonably infer Martinez knowingly or intentionally performed the

substantial step of prying on the door for the purpose of breaking and entering

into Meeks’ dwelling. See Peak v. State, 520 N.E.2d 465, 467-68 (Ind. Ct. App.

1988) (sufficient evidence supported attempt to break and enter where Peak was

unsuccessful in kicking down door and fled after seeing police). Martinez’s

arguments are an invitation to reweigh the evidence, which we cannot do. See

Pillow, 986 N.E.2d at 344-45.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 5 of 6 Conclusion [11] Sufficient evidence supported Martinez’s conviction of Level 6 felony attempted

residential entry. Accordingly, we affirm.

[12] Affirmed.

Baker, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 6 of 6