Kevin Terry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 6, 2016
• Docket: 11A05-1605-CR-1010
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 06 2016, 6:36 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel C. Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Ellen Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Terry, December 6, 2016 Appellant-Defendant, Court of Appeals Case No. 11A05-1605-CR-1010 v. Appeal from the Clay Circuit Court State of Indiana, The Honorable Joseph D. Trout, Appellee-Plaintiff. Judge Trial Court Cause No. 11C01-1509-F1-660

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 1 of 9 Case Summary [1] During the early morning hours of September 30, 2015, Appellant-Defendant

Kevin Terry forcibly entered the garage of Darlene Greenley. Upon entering

Greenley’s garage, Terry, who was accompanied by a pit bull and armed with a

machete, demanded that Greenley let him in her home. These demands where

threatening in nature. Greenley notified the police. When the police arrived,

Terry was placed under arrest. During a search incident to Terry’s arrest, police

recovered two condoms, a sexual device, and a baggie containing what was

later determined to be methamphetamine.

[2] Terry was subsequently charged with (1) Level 1 felony attempted rape, (2)

Level 2 felony attempted burglary, (3) Level 5 felony intimidation, (4) Level 6

felony attempted residential entry, (5) Level 6 felony possession of

methamphetamine, and (6) Class A misdemeanor criminal mischief. Following

a jury trial, Terry was found guilty of attempted burglary, intimidation,

attempted residential entry, possession of methamphetamine, and criminal

mischief. The trial court subsequently merged the attempted residential entry

conviction with the attempted burglary conviction and sentenced Terry to an

aggregate twenty-five year term.

[3] On appeal, Terry challenges the sufficiency of the evidence to sustain his

attempted burglary conviction. Concluding that the evidence is sufficient to

sustain the challenged conviction, we affirm.

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 2 of 9 Facts and Procedural History [4] Greenley arrived home from her shift as a registration clerk at the Putnam

County Hospital at approximately 1:40 a.m. on September 30, 2015. Upon

arriving home, Greenley parked her vehicle in her home’s attached garage. The

garage door was broken, so Greenley used a pole placed inside the tracking to

prop the door up and keep it open. Greenley went into her home through the

door in the garage, leaving the garage door propped open. After entering her

home, Greenley locked and deadbolted the door. She also placed a dining

room chair underneath the doorknob as extra security.

[5] A few minutes later, Greenley heard the garage door crash down. She ran to

the door to confirm by pulling back the curtain to look through a glass panel

into the garage. Greenley observed Terry, a shirtless “very large man” standing

in her garage with a leashed pit bull and armed with a machete. Tr. p. 258.

Terry, who was holding the machete blade towards Greenley “in a threatening

manner,” said “You have a big, black n[*****] in your garage now b[****].

What you gonna do?” Tr. p. 259. Greenley responded, “Call the cops. Get

out of my house.” Tr. p. 259. Greenley then screamed for one of her two

daughters who were present in the home to bring her the telephone so that she

could call 911.

[6] While Greenley called 911, her daughter sat on the floor against the door and

used the car keys to continuously hit the panic button to sound the car alarm.

While Greenley’s daughter continued to hit the panic button, Terry said to

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 3 of 9 “Turn off the alarm,” tr. p. 325, and to “Just open the door. Let me in.” Tr. p.

283. Greenley and her two daughters then heard loud banging noises from the

garage. Terry also indicated that Greenley was a “dumb white b[****] who

hasn’t been f[*****] and needed to get some.” Tr. p. 325.

[7] When the police arrived, Greenley led the responding officers to her garage

through her residence, as they could not enter the garage any other way. Once

in the garage, the responding officers saw the machete on the hood of

Greenley’s vehicle with about half of the blade stuck in between the hood and

the front quarter panel. They also observed Terry. When the responding

officers instructed Terry to leave the garage, he told them that his dog was

“vicious” and could not be let go. Tr. p. 345. Greenley provided the officers

with a leash to tie the dog to the railing of the garage. Terry was then placed

under arrest and escorted from the garage.

[8] During a search incident to Terry’s arrest, officers recovered the following from

Terry’s person: (1) two Trojan brand condoms, (2) a silver metal ring, and (3) a

plastic white container holding a baggie of what was later determined to be .65

grams of methamphetamine. The silver ring found on Terry was determined to

be a steel “cock ring” which is a sexual device used by men to “restrict blood

flow of the penis so that an erection is sustained for a longer period” of time.

Tr. p. 486.

[9] It was subsequently determined that Terry had caused approximately $3000

worth of damage to Greenley’s vehicle. Terry also caused damage to the door

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 4 of 9 into the home that appeared to be hack or slash marks that appeared to be

caused by the point of the machete.

[10] On September 30, 2015, Appellee-Plaintiff the State of Indiana (“the State”)

charged Terry with the following crimes: (1) Level 1 felony attempted burglary,

(2) Level 1 felony attempted rape, (3) Level 6 felony possession of

methamphetamine, and (4) Class A misdemeanor criminal mischief. The State

subsequently filed an amended charging information in which it reduced the

attempted burglary charge from a Level 1 to Level 2 felony and added charges

of Level 5 felony intimidation and Level 6 felony attempted residential entry.

[11] The case proceeded to trial, at the conclusion of which the jury found Terry

guilty of attempted burglary, intimidation, criminal mischief, possession of

methamphetamine, and attempted residential entry but not guilty of attempted

rape. During an April 5, 2016 sentencing hearing, the trial court merged the

conviction of Level 6 felony attempted residential entry into the Level 2 felony

attempted burglary and sentenced Terry to an aggregate term of twenty-five

years. This appeal follows.

Discussion and Decision [12] Terry contends that the evidence is insufficient to sustain his conviction for

Level 2 felony attempted burglary.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 5 of 9 the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

quotations omitted). “In essence, we assess only whether the verdict could be

reached based on reasonable inferences that may be drawn from the evidence

presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

original). Upon review, appellate courts do not reweigh the evidence or assess

the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

2002).

[13] Indiana Code section 35-43-2-1 provides that “[a] person who breaks and enters

the building or structure of another person, with intent to commit a felony or

theft in it, commits burglary, a Level 5 felony.” However, the offense is a Level

2 felony if it: “(A) is committed while armed with a deadly weapon; or (B)

results in serious bodily injury to any person other than a defendant[.]” Ind.

Code § 35-43-2-1(3). Indiana Code section 35-41-5-1(a) further provides that

“[a] person attempts to commit a crime when, acting with the culpability

required for commission of the crime, the person engages in conduct that

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 6 of 9 constitutes a substantial step toward commission of the crime.” “An attempt to

commit a crime is a felony or misdemeanor of the same level or class as the

crime attempted.” Ind. Code § 35-41-5-1(a). Thus, in order to prove that Terry

committed the charged Level 2 felony offense, the State was required to prove

that Terry, while armed with a deadly weapon, attempted to break and enter

the building of another with the intent to commit a felony or theft therein.

[14] In challenging his conviction, Terry argues that the evidence is insufficient to

prove that he had the requisite mens rea, i.e., that he intended to commit a

felony or theft once inside Greenley’s home. “Intent, being a mental state, can

only be established by considering the behavior of the relevant actor, the

surrounding circumstances, and the reasonable inferences to be drawn

therefrom.” Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App. 2006)

(citing Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003), trans. denied).

The Indiana Supreme Court has held that in order to sufficiently prove a

burglary charge, “the State must prove a specific fact that provides a solid basis

to support a reasonable inference that the defendant had the specific intent to

commit a felony.” Freshwater v. State, 853 N.E.2d 941, 944 (Ind. 2006). The

evidence to prove intent, however, “need not be insurmountable, but only

provide a solid basis to support a reasonable inference that the defendant

intended to commit the underlying felony charged.” Gilliam v. State, 508

N.E.2d 1270, 1271 (Ind. 1987). “In other words, the evidence must support

each inference—felonious intent and breaking and entering—independently,

and neither inference should rely on the other for support.” Baker v. State, 968

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 7 of 9 N.E.2d 227, 230 (Ind. 2012). “This is not to say, however, that the same piece

of evidence cannot support both inferences.” Id.

[15] Here, the State alleged that Terry intended to commit either the felony of rape

or battery. At the time of his attempted entry into Greenley’s home, Terry (1)

was not wearing a shirt, (2) was armed with a machete, (3) had what he

described to be a “vicious” pit bull with him, tr. p. 345, (4) acted in a

threatening manner, and (5) had condoms and a steel “cock ring” on his

person. Tr. p. 486. Again, a “cock ring” is a sexual device used by men in an

effort to sustain an erection “for a longer period” of time. Tr. p. 486. Terry

also made comments indicating that Greenley was a “dumb white b[****] who

hasn’t been f[*****] and needed to get some.” Tr. p. 325. One could also

reasonably infer that Terry attempted to conceal himself in Greenley’s garage

by causing the garage door to close.

[16] Upon review, we conclude that Terry’s statements, together with (1) the

threatening manner which he acted, (2) the condoms and sexual device

recovered from Greenley’s person, and (3) the inference that he actively tried to

conceal himself in Greenley’s garage are sufficient to create a reasonable

inference that Terry intended to commit the felony of rape once inside

Greenley’s home. Terry’s claim to the contrary amounts to nothing more than

an invitation for this court to reweigh the evidence, which we will not do. See

Stewart, 768 N.E.2d 433, 435.

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

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 8 of 9 Vaidik, C.J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 11A05-1605-CR-1010 | December 6, 2016 Page 9 of 9