MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 11 2015, 5:50 am 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 Kristin A. Mulholland Gregory F. Zoeller Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Major Loren Wilson, August 11, 2015 Appellant-Defendant, Court of Appeals Case No. 45A03-1412-CR-425 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff. Boswell, Judge Trial Court Cause No. 45G03-1403-FA-10
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 1 of 7 [1] Major Loren Wilson was convicted of criminal deviate conduct 1 as a Class A
felony and burglary2 as a Class B felony, was adjudicated a habitual offender,
and was sentenced to an aggregate 100 years of incarceration. He appeals and
raises the following restated issue for our review: whether the State presented
sufficient evidence to support his conviction for Class B felony burglary.
[2] We affirm.
Facts and Procedural History [3] In the early morning hours of March 4, 2014, T.R. was alone in the apartment
she shared with her mother. T.R.’s mother had left for work and locked the
door when she left. T.R. was in her bedroom watching television when, at
approximately 2:00 a.m., she heard someone in the apartment. She assumed
her mother had forgotten something and returned. T.R. looked up and saw a
man standing in her bedroom doorway, holding a knife and wearing a black ski
mask and yellow latex gloves. He entered the bedroom and told T.R. to turn
off the television so she would not recognize his face. T.R. unplugged the
television from the outlet behind the bed. She attempted to get off of the bed,
1 See Ind. Code § 35-42-4-2. We note that, effective July 1, 2014, this statute was repealed. However, as Wilson committed his crimes prior to that date, he was charged under the version of the statute in effect at the time he committed the crimes. 2 See Ind. Code § 35-43-2-1. We note that, effective July 1, 2014, a new version of this criminal statute was enacted. Because Wilson committed his crimes prior to July 1, 2014, we will apply the statute in effect at the time he committed his crimes.
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 2 of 7 but the intruder pushed her back on the bed and put the knife against her neck.
The man then ordered T.R. to remove all of her clothes and to lie on the bed.
[4] T.R. recognized the man’s voice as having the distinct accent of her downstairs
neighbor, Wilson. As T.R. was lying on the bed, Wilson rubbed his gloved
hand over her body and ordered her to turn over onto her stomach, while he
continued to rub her body. Wilson then told T.R. to again lie on her back, and
he removed the glove off of his right hand and inserted his finger into her
vagina. After that, Wilson removed the part of his ski mask that covered his
mouth and performed oral sex on T.R. During the entire assault, Wilson held
the knife in his hand.
[5] Afterward, Wilson ordered T.R. to go to the bathroom and followed her with
the knife in his hand. He told her to clean her vagina with a washcloth and
watched as she did so. Wilson then had T.R. go back to the bedroom and lie
back on the bed. He directed T.R. to turn the television back on. He then took
several photos of her vagina with his cell phone. Wilson asked T.R. what she
was going to do next, and she replied that she was going to sleep. Wilson left
the apartment, but T.R. was too frightened to call the police at that time. She
put her clothes back on and tried to fall asleep, which she was eventually able to
do.
[6] The next morning, Wilson knocked on T.R.’s door, and when she answered the
door, he handed her a note. The note stated, “[T.R.] as I said, don’t say
anything to anyone, not even your mother.” State’s Ex. 7. T.R. recognized the
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 3 of 7 handwriting as being Wilson’s because he had previously given her and her
mother holiday cards. After he handed T.R. the note, Wilson returned to his
own apartment.
[7] When T.R.’s mother returned from work, T.R. told her mother what happened,
and her mother called the police. The police arrived and arrested Wilson. T.R.
went to a local hospital, and a rape kit was performed. A minor DNA profile
consistent with Wilson’s DNA was located on toilet paper that was lining
T.R.’s underwear at the time of the assault. This minor DNA profile consistent
with Wilson’s DNA would likely only occur once in eighty-three million
unrelated individuals. T.R. identified Wilson as her attacker from a
photographic array and later identified him in court as well. A handwriting
analysis was performed on the note Wilson gave T.R., and a conclusion was
made that Wilson wrote the note.
[8] The State charged Wilson with Class A felony criminal deviate conduct, two
counts of Class B felony criminal deviate conduct, Class B felony criminal
confinement, Class B felony burglary, Class B felony burglary while armed with
a deadly weapon, Class C felony battery by means of a deadly weapon, Class C
felony sexual battery, Class D felony sexual battery, and Class D felony
criminal confinement. The State also alleged that Wilson was a habitual
offender. Wilson was found guilty as charged at the conclusion of a jury trial,
and Wilson admitted to being a habitual offender. The trial court entered
judgment only for Wilson’s convictions of Class A felony criminal deviate
conduct and Class B felony burglary while armed with a deadly weapon and
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 4 of 7 found Wilson to be a habitual offender. Wilson was sentenced to fifty years for
the criminal deviate conduct conviction, enhanced by thirty years for the
habitual offender finding, and twenty years for the burglary conviction, for a
total executed sentence of 100 years. Wilson now appeals.
Discussion and Decision [9] The deferential standard of review for sufficiency claims is well settled. This
court will neither reweigh the evidence nor assess the credibility of witnesses.
Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.
State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only
the evidence and reasonable inferences most favorable to the trial court’s ruling.
Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt. Tooley, 911
N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to
support the conclusion of the trier of fact, then the verdict will not be disturbed.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 11 2015, 5:50 am 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 Kristin A. Mulholland Gregory F. Zoeller Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Major Loren Wilson, August 11, 2015 Appellant-Defendant, Court of Appeals Case No. 45A03-1412-CR-425 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff. Boswell, Judge Trial Court Cause No. 45G03-1403-FA-10
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 1 of 7 [1] Major Loren Wilson was convicted of criminal deviate conduct 1 as a Class A
felony and burglary2 as a Class B felony, was adjudicated a habitual offender,
and was sentenced to an aggregate 100 years of incarceration. He appeals and
raises the following restated issue for our review: whether the State presented
sufficient evidence to support his conviction for Class B felony burglary.
[2] We affirm.
Facts and Procedural History [3] In the early morning hours of March 4, 2014, T.R. was alone in the apartment
she shared with her mother. T.R.’s mother had left for work and locked the
door when she left. T.R. was in her bedroom watching television when, at
approximately 2:00 a.m., she heard someone in the apartment. She assumed
her mother had forgotten something and returned. T.R. looked up and saw a
man standing in her bedroom doorway, holding a knife and wearing a black ski
mask and yellow latex gloves. He entered the bedroom and told T.R. to turn
off the television so she would not recognize his face. T.R. unplugged the
television from the outlet behind the bed. She attempted to get off of the bed,
1 See Ind. Code § 35-42-4-2. We note that, effective July 1, 2014, this statute was repealed. However, as Wilson committed his crimes prior to that date, he was charged under the version of the statute in effect at the time he committed the crimes. 2 See Ind. Code § 35-43-2-1. We note that, effective July 1, 2014, a new version of this criminal statute was enacted. Because Wilson committed his crimes prior to July 1, 2014, we will apply the statute in effect at the time he committed his crimes.
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 2 of 7 but the intruder pushed her back on the bed and put the knife against her neck.
The man then ordered T.R. to remove all of her clothes and to lie on the bed.
[4] T.R. recognized the man’s voice as having the distinct accent of her downstairs
neighbor, Wilson. As T.R. was lying on the bed, Wilson rubbed his gloved
hand over her body and ordered her to turn over onto her stomach, while he
continued to rub her body. Wilson then told T.R. to again lie on her back, and
he removed the glove off of his right hand and inserted his finger into her
vagina. After that, Wilson removed the part of his ski mask that covered his
mouth and performed oral sex on T.R. During the entire assault, Wilson held
the knife in his hand.
[5] Afterward, Wilson ordered T.R. to go to the bathroom and followed her with
the knife in his hand. He told her to clean her vagina with a washcloth and
watched as she did so. Wilson then had T.R. go back to the bedroom and lie
back on the bed. He directed T.R. to turn the television back on. He then took
several photos of her vagina with his cell phone. Wilson asked T.R. what she
was going to do next, and she replied that she was going to sleep. Wilson left
the apartment, but T.R. was too frightened to call the police at that time. She
put her clothes back on and tried to fall asleep, which she was eventually able to
do.
[6] The next morning, Wilson knocked on T.R.’s door, and when she answered the
door, he handed her a note. The note stated, “[T.R.] as I said, don’t say
anything to anyone, not even your mother.” State’s Ex. 7. T.R. recognized the
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 3 of 7 handwriting as being Wilson’s because he had previously given her and her
mother holiday cards. After he handed T.R. the note, Wilson returned to his
own apartment.
[7] When T.R.’s mother returned from work, T.R. told her mother what happened,
and her mother called the police. The police arrived and arrested Wilson. T.R.
went to a local hospital, and a rape kit was performed. A minor DNA profile
consistent with Wilson’s DNA was located on toilet paper that was lining
T.R.’s underwear at the time of the assault. This minor DNA profile consistent
with Wilson’s DNA would likely only occur once in eighty-three million
unrelated individuals. T.R. identified Wilson as her attacker from a
photographic array and later identified him in court as well. A handwriting
analysis was performed on the note Wilson gave T.R., and a conclusion was
made that Wilson wrote the note.
[8] The State charged Wilson with Class A felony criminal deviate conduct, two
counts of Class B felony criminal deviate conduct, Class B felony criminal
confinement, Class B felony burglary, Class B felony burglary while armed with
a deadly weapon, Class C felony battery by means of a deadly weapon, Class C
felony sexual battery, Class D felony sexual battery, and Class D felony
criminal confinement. The State also alleged that Wilson was a habitual
offender. Wilson was found guilty as charged at the conclusion of a jury trial,
and Wilson admitted to being a habitual offender. The trial court entered
judgment only for Wilson’s convictions of Class A felony criminal deviate
conduct and Class B felony burglary while armed with a deadly weapon and
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 4 of 7 found Wilson to be a habitual offender. Wilson was sentenced to fifty years for
the criminal deviate conduct conviction, enhanced by thirty years for the
habitual offender finding, and twenty years for the burglary conviction, for a
total executed sentence of 100 years. Wilson now appeals.
Discussion and Decision [9] The deferential standard of review for sufficiency claims is well settled. This
court will neither reweigh the evidence nor assess the credibility of witnesses.
Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.
State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only
the evidence and reasonable inferences most favorable to the trial court’s ruling.
Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt. Tooley, 911
N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to
support the conclusion of the trier of fact, then the verdict will not be disturbed.
Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006).
[10] Wilson argues that the State failed to present sufficient evidence to support his
conviction for Class B felony burglary while armed with a deadly weapon. He
specifically alleges that the State failed to prove that he broke into T.R.’s
apartment because no evidence was presented to establish how he “might have
entered the apartment.” Appellant’s Br. at 9. Wilson contends that, because
there was no evidence as to how he could have gotten into the apartment, the
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 5 of 7 State failed to meet its burden of proof, and insufficient evidence was presented
to support his burglary conviction.
[11] In order to convict Wilson of Class B felony burglary while armed with a
deadly weapon, the State was required to prove beyond a reasonable doubt that
he broke and entered the dwelling of T.R. with the intent to commit the felony
of sexual battery while armed with a deadly weapon. Ind. Code § 35-43-2-1.
“‘Using even the slightest force to gain unauthorized entry satisfies the breaking
element of the crime.’” Hall v. State, 870 N.E.2d 449, 462-63 (Ind. Ct. App.
2007) (quoting Davis v. State, 770 N.E.2d 319, 322 (Ind. 2002)), trans. denied. As
an example, “‘opening an unlocked door or pushing a door that is slightly ajar
constitutes a breaking.’” Id. at 463 (quoting Davis, 770 N.E.2d at 322 (citation
omitted)). Circumstantial evidence alone can prove the occurrence of a
breaking. Payne v. State, 777 N.E.2d 63, 66 (Ind. Ct. App. 2002).
[12] Here, the evidence presented at trial showed that T.R.’s mother had shut and
locked the apartment door when she left for work about thirty minutes before
Wilson entered the apartment. T.R. was alone in the apartment watching
television when she noticed Wilson in her bedroom doorway. Wilson does not
challenge the sufficiency for his conviction of criminal deviate conduct and,
therefore, does not challenge the fact that he was present in the apartment, he
merely alleges that there was insufficient evidence to prove how he got into the
apartment.
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 6 of 7 [13] In Cockerham v. State, 246 Ind. 303, 307-08, 204 N.E.2d 654, 657 (1965), our
Supreme Court held that a jury can reasonably conclude that “no one could
enter the home with the windows and doors [locked] and closed without
opening such doors or windows.” The Supreme Court went on to state, “This
would constitute a ‘breaking’ even though there be no physical marks showing
that force was used . . . [because] [a]s a matter of logic, no one could conclude
otherwise than that a door or window had to be pushed open to get inside the
house.” 246 Ind. at 308, 204 N.E.2d at 657.
[14] We, therefore, conclude that, based on the evidence presented, the jury could
reasonably infer that Wilson broke and entered T.R.’s apartment with the intent
to commit sexual battery. The State was not required to prove the exact means
of Wilson’s entry into the apartment or that force was used to gain entry. It was
sufficient to prove that Wilson was inside the apartment and could only have
gotten inside by opening the door, which T.R.’s mother had shut and locked
when she left for work. We conclude that the State presented sufficient
evidence to support Wilson’s conviction for burglary.
[15] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015 Page 7 of 7