MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Mar 29 2017, 10:36 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Davis, March 29, 2017
Appellant-Defendant, Court of Appeals Case No. 71A05-1607-CR-1607 v. Appeal from the St. Joseph Superior Court. The Honorable Jane Woodward State of Indiana, Miller, Judge. Appellee-Plaintiff. Trial Court Cause No. 71D01-1512- F5-284
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 1 of 6 Statement of the Case 1 [1] Richard Davis appeals from his conviction of Level 5 felony burglary,
contending that there is insufficient evidence to support his conviction. We
affirm.
Issue [2] The sole issue presented in this appeal is whether there is sufficient evidence of
intent to support Davis’ conviction of Level 5 felony burglary.
Facts and Procedural History [3] On December 17, 2015, Danny Warner was alone at his home on 2526 Bonds
Avenue in South Bend, Indiana, recuperating from a recent knee surgery. His
girlfriend and her son, who both lived with him at that address, had left to do
some shopping.
[4] Warner had installed a motion activated security system in his detached garage
because someone had broken into his garage during the summer. When
activated, the security system only makes a beeping sound in the house, much
like a smoke detector does.
[5] On that day, Warner was in bed icing and elevating his knee when he heard the
alarm system signal that something or someone was in his garage. He initially
1 Ind. Code § 35-43-2-1 (2013).
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 2 of 6 thought it was a false alarm because previously he had issues with animals
entering his garage through a broken window, setting off the alarm.
Nonetheless, he went outside to investigate, not bothering to put on his knee
brace or take his cell phone with him.
[6] Once outside, Warner noticed that the door to his garage was ajar. The door
should have been closed and locked. Warner, who had paused before
investigating further, was startled when Davis rushed out of the garage and ran
directly into him, knocking both of them to the ground. A struggle ensued.
[7] Warner grabbed Davis and dragged him into his house. Davis escaped
Warner’s grasp once inside, but Warner grabbed him and they struggled again.
Warner kicked Davis’ legs out from underneath him and sat on him while
calling 911 on his cell phone. Repeatedly, during the scuffle from the backyard
to the house, Davis implored Warner to let him go, asked him if he had a god,
and stated that he could not go back to jail.
[8] While Warner was sitting on Davis, waiting for the police to arrive, Davis
pulled out a screwdriver and tried to bring it up to the side of Warner’s body,
attempting to stab him. Warner was able to grab Davis’ wrist and beat his hand
on the floor until Davis was disarmed. The two remained there, with Warner
sitting on Davis’ chest, until police officers arrived.
[9] South Bend Police Department Officer Justin Gorny was dispatched to
Warner’s house. Because the front door of Warner’s house was locked, Warner
had to get up and take Davis with him to meet the officer. Warner described to
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 3 of 6 Officer Gorny what had occurred and that Davis had entered Warner’s garage
without his permission.
[10] Warner went with the responding officers to his garage. They observed that the
door casing and the lock had marks indicative of having been pried open.
Those marks were not there prior to that incident. Inside the garage, they
observed that a toolbox, a corded drill, and a refrigeration weight had been
moved to a work bench closer to the garage door.
[11] The State charged Davis with burglary as a Level 5 felony. After a jury trial, at
which Davis proceeded pro se, the jury found him guilty as charged. The trial
court sentenced Davis to a term of six years executed. Davis now appeals.
Discussion and Decision [12] Davis contends that there is insufficient evidence that he broke and entered
Warner’s garage and intended to commit a felony therein.
[13] To establish beyond a reasonable doubt that Davis committed burglary, the
State was required to prove that Davis broke and entered Davis’ garage with the
intent to commit theft in it. See Ind. Code § 35-43-2-1.
[14] When reviewing the sufficiency of the evidence, we consider only the evidence
and reasonable inferences most favorable to the conviction, neither reweighing
evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958
(Ind. 2016). We will affirm the judgment unless no reasonable factfinder could
find the defendant guilty. Id.
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 4 of 6 [15] “Burglars rarely announce their intentions at the moment of entry.” Gilliam v.
State, 508 N.E.2d 1270, 1271 (Ind. 1987). “Intent to commit a given felony
may be inferred from the circumstances, but some fact in evidence must point
to an intent to commit a specific felony.” Justice v. State, 530 N.E.2d 295, 297
(Ind. 1988). Furthermore, intent to commit a felony may not be inferred from
proof of breaking and entering alone. Id. “The evidentiary inference pointing to
the defendant’s intent must be separate from the inference of the defendant’s
breaking and entering.” Baker v. State, 968 N.E.2d 227, 230 (Ind. 2012).
[16] The evidence in this appeal shows that Warner was headed to investigate what
might have triggered the security system in his garage when he observed that
the garage door, which should have been closed and locked, was ajar. Warner
froze for a moment upon seeing this. Davis then ran from the garage and
collided with him, forcing both of them to the ground where a struggle ensued.
[17] Warner grabbed Davis and brought him into his house where he could retrieve
his cell phone to call 911. The two scuffled again, but Warner prevailed, sitting
on Davis’ chest while placing the call. Davis pulled out a screwdriver and
attempted to strike Warner in the side with it. Warner, however, was able to
disarm Davis until the police arrived. During the scuffle, Davis pleaded with
Warner to let him go, asked if he had a god, and stated he did not want to
return to jail.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Mar 29 2017, 10:36 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Davis, March 29, 2017
Appellant-Defendant, Court of Appeals Case No. 71A05-1607-CR-1607 v. Appeal from the St. Joseph Superior Court. The Honorable Jane Woodward State of Indiana, Miller, Judge. Appellee-Plaintiff. Trial Court Cause No. 71D01-1512- F5-284
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 1 of 6 Statement of the Case 1 [1] Richard Davis appeals from his conviction of Level 5 felony burglary,
contending that there is insufficient evidence to support his conviction. We
affirm.
Issue [2] The sole issue presented in this appeal is whether there is sufficient evidence of
intent to support Davis’ conviction of Level 5 felony burglary.
Facts and Procedural History [3] On December 17, 2015, Danny Warner was alone at his home on 2526 Bonds
Avenue in South Bend, Indiana, recuperating from a recent knee surgery. His
girlfriend and her son, who both lived with him at that address, had left to do
some shopping.
[4] Warner had installed a motion activated security system in his detached garage
because someone had broken into his garage during the summer. When
activated, the security system only makes a beeping sound in the house, much
like a smoke detector does.
[5] On that day, Warner was in bed icing and elevating his knee when he heard the
alarm system signal that something or someone was in his garage. He initially
1 Ind. Code § 35-43-2-1 (2013).
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 2 of 6 thought it was a false alarm because previously he had issues with animals
entering his garage through a broken window, setting off the alarm.
Nonetheless, he went outside to investigate, not bothering to put on his knee
brace or take his cell phone with him.
[6] Once outside, Warner noticed that the door to his garage was ajar. The door
should have been closed and locked. Warner, who had paused before
investigating further, was startled when Davis rushed out of the garage and ran
directly into him, knocking both of them to the ground. A struggle ensued.
[7] Warner grabbed Davis and dragged him into his house. Davis escaped
Warner’s grasp once inside, but Warner grabbed him and they struggled again.
Warner kicked Davis’ legs out from underneath him and sat on him while
calling 911 on his cell phone. Repeatedly, during the scuffle from the backyard
to the house, Davis implored Warner to let him go, asked him if he had a god,
and stated that he could not go back to jail.
[8] While Warner was sitting on Davis, waiting for the police to arrive, Davis
pulled out a screwdriver and tried to bring it up to the side of Warner’s body,
attempting to stab him. Warner was able to grab Davis’ wrist and beat his hand
on the floor until Davis was disarmed. The two remained there, with Warner
sitting on Davis’ chest, until police officers arrived.
[9] South Bend Police Department Officer Justin Gorny was dispatched to
Warner’s house. Because the front door of Warner’s house was locked, Warner
had to get up and take Davis with him to meet the officer. Warner described to
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 3 of 6 Officer Gorny what had occurred and that Davis had entered Warner’s garage
without his permission.
[10] Warner went with the responding officers to his garage. They observed that the
door casing and the lock had marks indicative of having been pried open.
Those marks were not there prior to that incident. Inside the garage, they
observed that a toolbox, a corded drill, and a refrigeration weight had been
moved to a work bench closer to the garage door.
[11] The State charged Davis with burglary as a Level 5 felony. After a jury trial, at
which Davis proceeded pro se, the jury found him guilty as charged. The trial
court sentenced Davis to a term of six years executed. Davis now appeals.
Discussion and Decision [12] Davis contends that there is insufficient evidence that he broke and entered
Warner’s garage and intended to commit a felony therein.
[13] To establish beyond a reasonable doubt that Davis committed burglary, the
State was required to prove that Davis broke and entered Davis’ garage with the
intent to commit theft in it. See Ind. Code § 35-43-2-1.
[14] When reviewing the sufficiency of the evidence, we consider only the evidence
and reasonable inferences most favorable to the conviction, neither reweighing
evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958
(Ind. 2016). We will affirm the judgment unless no reasonable factfinder could
find the defendant guilty. Id.
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 4 of 6 [15] “Burglars rarely announce their intentions at the moment of entry.” Gilliam v.
State, 508 N.E.2d 1270, 1271 (Ind. 1987). “Intent to commit a given felony
may be inferred from the circumstances, but some fact in evidence must point
to an intent to commit a specific felony.” Justice v. State, 530 N.E.2d 295, 297
(Ind. 1988). Furthermore, intent to commit a felony may not be inferred from
proof of breaking and entering alone. Id. “The evidentiary inference pointing to
the defendant’s intent must be separate from the inference of the defendant’s
breaking and entering.” Baker v. State, 968 N.E.2d 227, 230 (Ind. 2012).
[16] The evidence in this appeal shows that Warner was headed to investigate what
might have triggered the security system in his garage when he observed that
the garage door, which should have been closed and locked, was ajar. Warner
froze for a moment upon seeing this. Davis then ran from the garage and
collided with him, forcing both of them to the ground where a struggle ensued.
[17] Warner grabbed Davis and brought him into his house where he could retrieve
his cell phone to call 911. The two scuffled again, but Warner prevailed, sitting
on Davis’ chest while placing the call. Davis pulled out a screwdriver and
attempted to strike Warner in the side with it. Warner, however, was able to
disarm Davis until the police arrived. During the scuffle, Davis pleaded with
Warner to let him go, asked if he had a god, and stated he did not want to
return to jail.
[18] After the police arrived, Warner walked to the garage with the responding
officers. They observed marks on the garage door casing and lock area that
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 5 of 6 were not there before the incident. They also observed that a toolbox, a corded
drill, and a refrigeration weight had been moved to a work bench closer to the
garage door. Warner told the officers that despite the disarray in his garage, he
knew that these items had been moved. The refrigeration weight was unique
and of particular value such that it would never have been left in such a
precarious position. This circumstantial evidence is sufficient to establish
Davis’ intent to steal those items.
[19] To the extent Davis points to inconsistencies between the information Warner
provided to police officers during the 911 call and initial statements, and his
testimony at trial, that argument is an invitation to reweigh the evidence. Our
standard of review does not allow us to engage in such an evaluation. Griffith,
59 N.E.3d at 958. The evidence is sufficient to support Davis’ conviction.
Conclusion [20] In light of the foregoing, we affirm the trial court’s decision.
[21] Affirmed.
Riley, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017 Page 6 of 6