Lawrence Kelshaw v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 31, 2014
• Docket: 49A02-1406-CR-387
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 31 2014, 9:13 am 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:

DEBORAH MARKISOHN GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Appellate Division Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

LAWRENCE KELSHAW, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1406-CR-387 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Amy J. Barbar, Magistrate Cause No. 49G02-1212-FB-81322

December 31, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge Case Summary

Lawrence Kelshaw appeals his conviction for class B felony burglary following a jury

trial. The sole issue presented for our review is whether the State presented sufficient

evidence to sustain his conviction. Finding the evidence sufficient, we affirm.

Facts and Procedural History

The facts most favorable to the verdict indicate that, on the night of December 1,

2012, Debbie Durbin was asleep in the bedroom of her home when she was awakened by

knocking at her front door. Durbin got out of bed and looked out her bedroom window but

did not see anyone. Durbin started to go back to bed when she heard knocking again,

followed by a loud bang that indicated to her that someone had broken open her door and was

inside the house. Durbin grabbed a gun, some bullets, and her cell phone, and hid in her

closet. While in the closet, Durbin called 911. As she was hiding and speaking on the phone

with authorities, Durbin could hear someone moving around her house and talking. When

the police arrived, Durbin heard a “mad scramble right outside my bedroom door which

[was] right where the front door exits the house. Like people were trying to get out the

door.” Tr. at 29.

Indianapolis Metropolitan Police Department Officers Greg Bowles and Brian Burnett

arrived at Durbin’s residence in response to her emergency call. Officer Bowles heard the

front door of the residence bang and he observed Kelshaw exit the front door. Officer

Bowles yelled, “Stop, Police,” and shined his flashlight in Kelshaw’s face. Id. at 47.

Kelshaw looked at Officer Bowles for “about fifteen – to twenty seconds” before fleeing

2 across the street. Id. at 48. Multiple officers pursued Kelshaw and eventually apprehended

him.

After Kelshaw was in custody, Officers Bowles and Burnett returned to Durbin’s

house to investigate. The officers walked around the house with Durbin so that she could

determine if any of her property was missing. Durbin observed that her laptop computer,

which had been on the table in her kitchen when she went to bed, was no longer there but that

the speakers that had been attached to the computer remained on the table. Durbin then

noticed that the laptop had been moved and placed into a bag that was sitting on the floor

next to her table.

The State charged Kelshaw with class B felony burglary and class A misdemeanor

resisting law enforcement. Following a trial, the jury found Kelshaw guilty as charged. This

appeal ensued.

Discussion and Decision

Kelshaw challenges the sufficiency of the evidence to support his burglary

conviction.1 When reviewing a challenge to the sufficiency of the evidence, we neither

reweigh evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). Rather, we consider only the evidence and reasonable inferences most favorable to

the verdict, and will affirm the conviction unless “no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt.” Id. (citation omitted). It is not

necessary for the evidence to overcome every reasonable hypothesis of innocence. Id. The

1 Kelshaw does not appeal his resisting law enforcement conviction.

3 evidence will be deemed sufficient if an inference may reasonably be drawn from it to

support the conviction. Id.

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

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

burglary.”2 Burglary is a class B felony if the building or structure is a “dwelling,” which

includes “a person’s home or place of lodging.” Ind. Code §§ 35-43-2-1, 35-31.5-2-107.

The State charged Kelshaw with breaking and entering Durbin’s home with the intent to

commit a felony therein, that is, theft, which is the knowing or intentional exertion of

“unauthorized control over property of another person, with intent to deprive the person of

any part of its value or use.” Ind. Code § 35-43-4-2.

Kelshaw’s sole assertion on appeal is that the evidence was not sufficient to prove that

he intended to commit theft when he broke and entered Durbin’s home. A burglar’s intent to

commit a specific felony at the time of breaking and entering may be inferred from the

circumstances. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.

“Evidence of intent need not be insurmountable, but there must be a specific fact that

provides a solid basis to support a reasonable inference that the defendant had the specific

intent to commit a felony.” Id. (citations and quotation marks omitted). Such evidence

2 This section has since been amended, effective July 1, 2014, and now reads, “[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….”

4 includes a showing that a defendant “touched, disturbed, or even approached valuable

property.” Cash v. State, 557 N.E.2d 1023, 1024 (Ind. 1990).3

Here, Durbin testified that on the night Kelshaw broke into her home, her laptop

computer had been on her kitchen table when she went to bed. After the break-in, Durbin

discovered that her laptop computer had been unhooked from its speakers and placed in a bag

on the floor. The jury could reasonably infer from this evidence that Kelshaw touched and

disturbed the laptop with the specific intent to exercise unauthorized control over the laptop

and to deprive Durbin of its value and use. The evidence supports a reasonable inference that

Kelshaw intended to commit theft when he broke and entered Durbin’s home. His class B

felony burglary conviction is affirmed.

Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.

3 Our supreme court has clarified that evidence of intent does not require evidence that the property approached or disturbed by the defendant was “valuable” because “the crime of theft places no minimum threshold on the value of property necessary to constitute the felony.” Baker v. State, 968 N.E.2d 227, 231 (Ind. 2012). Indeed, it is enough “that the defendant committed an act which could support an inference that he was searching for something to steal, no matter the value.” Id.