MEMORANDUM DECISION Oct 08 2015, 8:46 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cortez Boxley, October 8, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1503-CR-171 v. Appeal from the Marion Superior Court. The Honorable Virginia Caudill, State of Indiana, Judge Pro Tempore. Appellee-Plaintiff. Cause No. 49F18-1411-F6-50410
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 1 of 7 Statement of the Case [1] Cortez Boxley appeals from his conviction after a bench trial of one count of 1 attempted residential entry charged as a Level 6 felony. We reverse and
remand for a new trial.
Issue [2] Boxley presents the following dispositive issue for our review: whether the trial
court erred by failing to consider Boxley’s mistake-of-fact defense believing that
residential entry was a strict liability offense for which there is no specific intent
required.
Facts and Procedural History [3] On November 5, 2014, at approximately 6:00 p.m., Laura Peak and her ten-
year-old daughter were inside the living room of their townhouse in the
Churchill Ranch Apartment complex in Marion County. They heard someone
jiggling the doorknob in an attempt to enter the front door. Peak opened the
front door because she guessed there might be children playing outside her
door. However, when she opened the front door, she encountered Boxley, a
man she did not know.
[4] When Boxley placed his foot inside Peak’s doorway, she yelled at him, asked
him what he was doing, pushed him out of the doorway, and closed and locked
1 Ind. Code § 35-43-2-1.5 (2013) (residential entry); Ind. Code § 35-41-5-1 (2014) (attempt).
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 2 of 7 the front door. Peak immediately dialed 911. Boxley remained outside Peak’s
door jiggling the doorknob while Peak and her daughter retreated upstairs.
Peak was frightened by Boxley’s actions, called 911 a second time, and asked
the police officers to hurry.
[5] Officer John Clark of the Lawrence Police Department responded to the
dispatch and observed Boxley, who was bent over at Peak’s door “trying to
mess with the door handle.” Tr. p. 28. Officer Clark ordered Boxley to step
away from the door, but Boxley did not respond to that command. Officer
Clark thought he observed Boxley attempt to insert a key into the lock of the
front door. Officer Clark informed Boxley several times that if he did not step
away from the front door, the officer would use a taser. Officer Clark repeated
his command several more times to no avail. Instead, Boxley continued to try
to get in the front door. In the end, Officer Clark used his taser thereby
allowing another officer to handcuff Boxley. Officer Clark observed that
Boxley seemed “completely out of it” and “appeared to be on something.” Id.
at 32. Officer Clark called the medics for assistance.
[6] As a result of those events, the State charged Boxley with attempted residential
entry. The charging information stated as follows:
On or about November 5, 2014, [Boxley] did attempt to commit the crime of Residential Entry, by engaging in conduct which constitutes a substantial step toward the commission of said crime of Residential Entry, that is: pushed the door open and attempted to push his way past Laura Peak when she cracked the door open.
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 3 of 7 Appellant’s Appendix p. 15. At trial, Boxley testified that his sister lived in a
townhouse in the same apartment complex. He had a key to her townhouse
which he had been to multiple times. Boxley testified that earlier on that date
he had smoked a cigarette that contained embalming fluid and “hit the drink
one time, a couple of times.” Tr. pp. 35-36. He claimed that the only thing he
could remember was bending down to the door with the key. He did not recall
talking to Peak and stated he “was at the wrong address, the wrong door.” Id.
at 38.
[7] During closing argument, Boxley’s counsel argued that Boxley was “in a
blackout state” and did not see Peak or anything else when she opened the
door. Id. at 42. While conceding that intoxication was not a valid defense to
the charged crime, Boxley’s counsel argued as follows:
I do believe that [Boxley’s] intoxication led him to make a mistake about where he was. [Boxley] did not intend to enter Ms. Peak’s address. He was intending to go to his sister’s house who [sic] lived in a townhouse in the same apartment complex. Anybody who has ever been to an apartment complex knows that everything looks the same. And if you are in some state of intoxication—you know, there are jokes about that all the time. There have commercials about people who live in those cookie cutter neighborhoods and, you know, you have a drink and you go home and you can’t find your house. Id. at 43. Boxley’s counsel explained that “[Boxley] was intoxicated. He made
a mistake about which house he was at. He never intended to enter or tried to
enter Ms. Peak’s house. He was trying to get into his sister’s house.” Id. at 44.
The State argued that Boxley admitted he put himself in an intoxicated state
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 4 of 7 and, therefore, could not use the mistake-of-fact defense to negate his
culpability for the crime.
[8] The trial court stated the following:
With all of that said, I will say that misapprehension of one’s circumstances is not a defense and intoxication as is set forth by both the case law as well [as] the statute is also not a defense. Certainly it might be considered [a] mitigating circumstances [sic] if this was, say, the first time the gentleman had ever engaged in smoking—I can’t even believe I’m saying this— embalming fluid, but it is, in fact, not a defense. Tr. p. 45. The trial court then found Boxley guilty of attempted residential
entry as a Level 6 felony. The abstract of judgment states under the crime
charged “35-43-2-1.5/F6: Residential Entry break and enter dwelling NOTE—
this does not require any intent.” Appellant’s Appendix p. 12. Boxley now
appeals.
Discussion and Decision [9] Boxley challenges his conviction for attempted residential entry, contending
that the trial court erred by failing to consider his mistake-of-fact defense.
[10] In order to establish that Boxley committed the offense of attempted residential
entry, the State was required to prove beyond a reasonable doubt that Boxley
knowingly or intentionally broke and entered Peak’s townhome. Ind. Code §
35-43-2-1.5. Because the crime was charged as an attempt, the State was
required to prove that Boxley acted with the culpability required for the
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MEMORANDUM DECISION Oct 08 2015, 8:46 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cortez Boxley, October 8, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1503-CR-171 v. Appeal from the Marion Superior Court. The Honorable Virginia Caudill, State of Indiana, Judge Pro Tempore. Appellee-Plaintiff. Cause No. 49F18-1411-F6-50410
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 1 of 7 Statement of the Case [1] Cortez Boxley appeals from his conviction after a bench trial of one count of 1 attempted residential entry charged as a Level 6 felony. We reverse and
remand for a new trial.
Issue [2] Boxley presents the following dispositive issue for our review: whether the trial
court erred by failing to consider Boxley’s mistake-of-fact defense believing that
residential entry was a strict liability offense for which there is no specific intent
required.
Facts and Procedural History [3] On November 5, 2014, at approximately 6:00 p.m., Laura Peak and her ten-
year-old daughter were inside the living room of their townhouse in the
Churchill Ranch Apartment complex in Marion County. They heard someone
jiggling the doorknob in an attempt to enter the front door. Peak opened the
front door because she guessed there might be children playing outside her
door. However, when she opened the front door, she encountered Boxley, a
man she did not know.
[4] When Boxley placed his foot inside Peak’s doorway, she yelled at him, asked
him what he was doing, pushed him out of the doorway, and closed and locked
1 Ind. Code § 35-43-2-1.5 (2013) (residential entry); Ind. Code § 35-41-5-1 (2014) (attempt).
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 2 of 7 the front door. Peak immediately dialed 911. Boxley remained outside Peak’s
door jiggling the doorknob while Peak and her daughter retreated upstairs.
Peak was frightened by Boxley’s actions, called 911 a second time, and asked
the police officers to hurry.
[5] Officer John Clark of the Lawrence Police Department responded to the
dispatch and observed Boxley, who was bent over at Peak’s door “trying to
mess with the door handle.” Tr. p. 28. Officer Clark ordered Boxley to step
away from the door, but Boxley did not respond to that command. Officer
Clark thought he observed Boxley attempt to insert a key into the lock of the
front door. Officer Clark informed Boxley several times that if he did not step
away from the front door, the officer would use a taser. Officer Clark repeated
his command several more times to no avail. Instead, Boxley continued to try
to get in the front door. In the end, Officer Clark used his taser thereby
allowing another officer to handcuff Boxley. Officer Clark observed that
Boxley seemed “completely out of it” and “appeared to be on something.” Id.
at 32. Officer Clark called the medics for assistance.
[6] As a result of those events, the State charged Boxley with attempted residential
entry. The charging information stated as follows:
On or about November 5, 2014, [Boxley] did attempt to commit the crime of Residential Entry, by engaging in conduct which constitutes a substantial step toward the commission of said crime of Residential Entry, that is: pushed the door open and attempted to push his way past Laura Peak when she cracked the door open.
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 3 of 7 Appellant’s Appendix p. 15. At trial, Boxley testified that his sister lived in a
townhouse in the same apartment complex. He had a key to her townhouse
which he had been to multiple times. Boxley testified that earlier on that date
he had smoked a cigarette that contained embalming fluid and “hit the drink
one time, a couple of times.” Tr. pp. 35-36. He claimed that the only thing he
could remember was bending down to the door with the key. He did not recall
talking to Peak and stated he “was at the wrong address, the wrong door.” Id.
at 38.
[7] During closing argument, Boxley’s counsel argued that Boxley was “in a
blackout state” and did not see Peak or anything else when she opened the
door. Id. at 42. While conceding that intoxication was not a valid defense to
the charged crime, Boxley’s counsel argued as follows:
I do believe that [Boxley’s] intoxication led him to make a mistake about where he was. [Boxley] did not intend to enter Ms. Peak’s address. He was intending to go to his sister’s house who [sic] lived in a townhouse in the same apartment complex. Anybody who has ever been to an apartment complex knows that everything looks the same. And if you are in some state of intoxication—you know, there are jokes about that all the time. There have commercials about people who live in those cookie cutter neighborhoods and, you know, you have a drink and you go home and you can’t find your house. Id. at 43. Boxley’s counsel explained that “[Boxley] was intoxicated. He made
a mistake about which house he was at. He never intended to enter or tried to
enter Ms. Peak’s house. He was trying to get into his sister’s house.” Id. at 44.
The State argued that Boxley admitted he put himself in an intoxicated state
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 4 of 7 and, therefore, could not use the mistake-of-fact defense to negate his
culpability for the crime.
[8] The trial court stated the following:
With all of that said, I will say that misapprehension of one’s circumstances is not a defense and intoxication as is set forth by both the case law as well [as] the statute is also not a defense. Certainly it might be considered [a] mitigating circumstances [sic] if this was, say, the first time the gentleman had ever engaged in smoking—I can’t even believe I’m saying this— embalming fluid, but it is, in fact, not a defense. Tr. p. 45. The trial court then found Boxley guilty of attempted residential
entry as a Level 6 felony. The abstract of judgment states under the crime
charged “35-43-2-1.5/F6: Residential Entry break and enter dwelling NOTE—
this does not require any intent.” Appellant’s Appendix p. 12. Boxley now
appeals.
Discussion and Decision [9] Boxley challenges his conviction for attempted residential entry, contending
that the trial court erred by failing to consider his mistake-of-fact defense.
[10] In order to establish that Boxley committed the offense of attempted residential
entry, the State was required to prove beyond a reasonable doubt that Boxley
knowingly or intentionally broke and entered Peak’s townhome. Ind. Code §
35-43-2-1.5. Because the crime was charged as an attempt, the State was
required to prove that Boxley acted with the culpability required for the
commission of the crime and engaged in conduct constituting a substantial step
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 5 of 7 toward the commission of that crime. Ind. Code § 35-41-5-1. In addition,
breaking is established by showing that even slight force was used to gain
unauthorized entry. Carson v. State, 963 N.E.2d 670, 683 (Ind. Ct. App. 2012),
trans. denied.
[11] The burden of proving each element of a criminal offense beyond a reasonable
doubt rests with the State. Geljack v. State, 671 N.E.2d 163, 164 (Ind. Ct. App.
1996). A defendant bears an initial burden of proof by a preponderance of
evidence on any affirmative defense he raises. Wilson v. State, 4 N.E.3d 670,
676 (Ind. Ct. App. 2014), trans. denied. However, it is the State that bears the
burden of negating beyond a reasonable doubt any defense sufficiently raised by
the defendant. Id.
[12] Indiana Code section 35-41-3-7 (1977) provides that “[i]t is a defense that the
person who engaged in the prohibited conduct was reasonably mistaken about a
matter of fact, if the mistake negates the culpability required for commission of
the offense.”
[13] Here, Boxley testified that his sister lived in a townhouse in the same apartment
complex as Peak. He further testified that he mistakenly believed he was at the
door of his sister’s townhouse and was trying to open the door with a key his
sister had given to him to use. Boxley’s testimony established that he was
aware that he was trying to enter someone’s house, but was mistaken about
whose house he was trying to enter. If he were in fact entering his sister’s
townhouse, he would not have committed a criminal offense, as the entry
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 6 of 7 would have been authorized. However, since he was mistaken about whose
house he was attempting to enter, his attempt to enter Peak’s townhouse was
unauthorized. Boxley’s intoxication was relevant to the determination of
whether he had made an honest and reasonable mistake-of-fact, but
intoxication is not available to him as a defense under these facts.
[14] Boxley’s counsel acknowledged that an intoxication defense was unavailable to
him, but asked the trial court to consider the mistake-of-fact defense. The court
declined to do so, asserting that the State need not prove the element of intent.
That belief was further expressed in the abstract of judgment.
[15] The trial court mistakenly believed that the State need not prove the element of
intent. Therefore, the trial court also mistakenly declined to consider Boxley’s
mistake-of-fact defense. We must reverse Boxley’s conviction and remand this
matter to the trial court for a new trial during which the trier of fact should
consider Boxley’s mistake-of-fact defense. In doing so, we express no opinion
on the merits of the defense.
Conclusion [16] In light of the foregoing, we reverse Boxley’s conviction and remand the matter
for a new trial.
[17] Reversed and remanded for a new trial.
Robb, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015 Page 7 of 7