Audrico Berry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 19, 2016
• Docket: 49A02-1509-CR-1355
• Status: Published

Opinion

FILED MEMORANDUM DECISION Apr 19 2016, 7:57 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court

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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael G. Moore Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Audrico Berry, April 19, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1509-CR-1355 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff Klineman, Judge Trial Court Cause No. 49G17-1503-F6-8630

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 1 of 5 [1] Audrico Berry appeals his conviction for Residential Entry,1 a Level 6 felony.

Berry argues that there was insufficient evidence presented to support his

conviction. Finding sufficient evidence, we affirm.

Facts [2] In 2013, Berry and Jamika Walker ended their relationship, but continued to

co-parent their daughter, A.W. Walker and A.W. moved to a new apartment,

and Walker gave Berry a key to the apartment. On March 6, 2015, Berry was

scheduled to pick up his child, but he arrived earlier than Walker had expected.

Walker had a male friend, Anthony Kimmons, in her apartment at the time.

Berry knocked on the door, and Walker went to the balcony and told Berry that

he could not come into her apartment. While Berry was returning to his

vehicle, Kimmons went on to Walker’s balcony and said “yeah, you can’t come

here”. Berry became upset and approached the front door. Kimmons

proceeded to the front door to prevent Berry from coming inside, while Walker

locked herself and A.W. in the bathroom. Berry entered the apartment after he

damaged the front door’s sill plate and destroyed the frame, then he engaged in

a scuffle with Kimmons. Berry went to the bathroom and yelled at Walker to

unlock the bathroom door. Berry punched the door, leaving a hole in it. He

then went to his car to retrieve his car keys. Walker ran with A.W. into the

bedroom and locked herself and A.W. in the bedroom closet. Berry re-entered

1 Ind. Code § 35-43-2-1.5.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 2 of 5 the apartment, broke the closet door, and damaged the door frame. Walker

called the police, but Berry left before officers responded to the scene.

[3] On March 19, 2015, the State charged Berry with residential entry as a Level 6

felony, battery as a Level 6 felony, and battery as a Class B misdemeanor. On

August 11, 2015, a bench trial was held. The trial court found Berry guilty of

Level 6 felony residential entry but not guilty of the other charges. On the same

day, Berry was sentenced to 365 days, with 357 days suspended to probation.

Berry now appeals.

Discussion and Decision [4] Berry has one argument on appeal: that there was insufficient evidence

presented to support his conviction. In reviewing a challenge to the sufficiency

of the evidence, this Court does not reweigh the evidence or judge the

credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

This Court will affirm a conviction “if probative evidence and reasonable

inferences drawn from the evidence could have allowed a reasonable trier of

fact to find the defendant guilty beyond a reasonable doubt.” Id.

[5] To convict Berry of Level 6 felony residential entry, the State had the burden to

prove beyond a reasonable doubt that he: (1) knowingly or intentionally, (2)

broke and entered, (3) the dwelling of Jamika Walker. I.C. § 35-43-2-1.5. On

appeal, Berry does not contest that he knowingly or intentionally broke and

entered Walker’s apartment. Instead, he argues that he had Walker’s consent

to enter her residence.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 3 of 5 [6] Lack of consent is not an element of residential entry that the State has to

prove. Holman v. State, 816 N.E. 2d 78, 81 (Ind. Ct. App. 2004). Instead, it is

the defendant’s burden to claim and prove consent as a defense. McKinney v.

State, 653 N.W.2d 115, 118 (Ind. Ct. App. 1995). A defendant’s belief that he

has permission to enter a residence must be reasonable in order for him to avail

himself of the defense of consent. Id. Once a defendant successfully raises the

defense of consent, the State has the burden of disproving the defense beyond a

reasonable doubt. Holman, 816 N.E.2d at 81. In this case, Berry’s argument at

trial focused on disproving the element of breaking and entering rather than on

the defense of consent. Berry concedes that he did “not explicitly” raise the

defense of consent at trial. Appellant’s Br.p.7. It is well-settled that a party

cannot argue on appeal an issue which was not properly presented to the trial

court. Franklin Bank and Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind.1990).

[7] Even if Berry had raised the defense of consent, the record contains more than

enough evidence to support the factfinder’s determination that he did not

reasonably believe that he had consent to enter. Walker testified that she told

Berry that he could not enter the apartment when he arrived early to pick up

A.W. It is evident that Berry knew he did not have consent to enter the

apartment because he had initially knocked on the door and then returned to

his vehicle after he was denied entry. If Berry reasonably believed he had

consent to enter the apartment, he would not have demanded that Walker open

the door for him or break down the door in order to enter. Under these

circumstances, a reasonable factfinder could easily have concluded that Berry

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 4 of 5 did not have a reasonable belief that Walker had consented to his entry into the

apartment.

[8] Berry argues that his possession of a key proves that he had consent to enter the

apartment. The record reveals that Walker gave Berry a key to the apartment

for the limited purpose of exchanging A.W. with Walker. At the time Berry

broke into the apartment, he was not entering for the purpose of picking up

A.W. Instead, he forced open the door because he was upset that Kimmons

was in the apartment, he aggressively confronted Walker multiple times, and he

left the apartment without the child before the police arrived. This evidence is

sufficient to support Berry’s conviction.

[9] The judgment of the trial court is affirmed.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 5 of 5