Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                   Sep 12 2013, 6:00 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:

PATRICIA CARESS MCMATH                             GREGORY F. ZOELLER
Marion County Public Defender Agency               Attorney General of Indiana
Indianapolis, Indiana
                                                   ELLEN H. MEILAENDER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

OSCAR DIAZ-FLORES,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 49A02-1302-CR-184
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Grant Hawkins, Judge
                            Cause No. 49G05-1206-FA-44464



                                       September 12, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Oscar Diaz-Flores broke into his ex-girlfriend’s apartment, attacked her, physically

prevented her from leaving the apartment, and made her go into the bedroom. He was

convicted of, among other crimes, class A felony burglary and two counts of class C felony

criminal confinement. He appeals his conviction for class A felony burglary, arguing that the

evidence was insufficient to prove that he intended to commit criminal confinement at the

time he broke and entered the apartment. He also appeals his criminal confinement

convictions, arguing that one must be vacated because the offenses were so continuous as to

constitute a single transaction.

       We conclude that the evidence is sufficient to support his burglary conviction and

affirm it. We further conclude, and the State concedes, that his criminal confinement of the

victim constitutes a single transaction and can only support one criminal confinement

conviction and therefore vacate one.

                              Facts and Procedural History

       Diaz-Flores and Josselin Tatiana Rogel were in a romantic relationship for two years,

during which time they lived together for one and a half years at Carmel Creek Apartments

and had a son. In February 2010, they stopped living together. Rogel took Diaz-Flores’s key

to the apartment and had the locks to the apartment changed. As of June 19, 2012, a no

contact order had been issued in connection with another case, prohibiting Diaz-Flores from

having contact with Rogel or visiting locations where he knew her to be.




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       On June 19, 2012, Diaz-Flores called Rogel several times. Rogel eventually answered

one of his calls, and Diaz-Flores told her that he wanted to see her. She told him no. Rogel

went to her mother’s apartment with her son. Around 11:00 p.m., Rogel returned to her

apartment to retrieve clothing for herself and her son because they were going to spend the

night at her mother’s. When Rogel got to her apartment, she sat on the stairs to her living

room, folding clothes and talking on the phone. Rogel saw Diaz-Flores come out of the

living room closet. He was angry and told her that he was going to kill her. He grabbed her

hair, threw her to the floor, and struck her multiple times with his fists and his foot. He

grabbed her head with both hands and hit it against the floor. All this was very painful.

Diaz-Flores told her that she deserved the beating and deserved to die. He threw her on the

couch where there was a belt. He grabbed the belt and held it down on her neck with all his

strength. It was very difficult for Rogel to breathe. She bit Diaz-Flores’s hand, he released

her, and she ran to the stairs. He grabbed her shirt, so she slipped out of it and continued

running. Then he grabbed her hair. He put his hand in front of her nose and mouth so she

could not breathe. Again, she broke away, but he blocked the door. Rogel was crying and

shaking and begging Diaz-Flores to leave her alone. He wanted her to go to the bedroom.

She did not want to go to the bedroom with Diaz-Flores, but she eventually complied. When

they got to the bedroom, Rogel managed to open the window and jump out, breaking her foot

as she landed. She also had bruises on her head and arms and visible fingerprints on her neck

from the attack.




                                             3
        On June 29, 2012, the State charged Diaz-Flores with Count I, class A felony

burglary; Count II, class C felony criminal confinement; Count III, class C felony criminal

confinement; Count IV, class D felony strangulation; Count V, class D felony intimidation;

Count VI, class A misdemeanor domestic battery; Count VII, class A misdemeanor battery;

and Count VIII, class A misdemeanor invasion of privacy. On January 31, 2013, following a

bench trial, the trial court took the burglary charge under advisement to allow the parties to

research whether burglary could be committed by someone on the lease. The trial court

found Diaz-Flores guilty of both counts of criminal confinement, strangulation, domestic

battery, and invasion of privacy. The trial court found him not guilty of intimidation, and

based on double jeopardy principles, battery.

        At the sentencing hearing on January 31, 2013, the trial court heard argument on the

burglary issue and found Diaz-Flores guilty of burglary. The trial court sentenced Diaz-

Flores to thirty years for burglary, eight years for each count of criminal confinement, one

and a half years for strangulation, and one year each for domestic battery and invasion of

privacy. The sentence for Count III criminal confinement was to run consecutive to the

sentence for Count II criminal confinement, but otherwise all the sentences were concurrent,

for an aggregate sentence of thirty years.1 Diaz-Flores appeals.




        1
           The State maintains that Diaz-Flores’s aggregate term is thirty-eight years, apparently under the
mistaken impression that Count III was ordered consecutive to the other sentences. Our review of the record
reveals that the trial court ordered Count III to run consecutive to Count II, and both to run concurrent with the
other sentences, resulting in an aggregate term of thirty years. Appellant’s Br. at 10 (abstract of judgment); Tr.
at 109-10.


                                                        4
                                 Discussion and Decision

                              I. Sufficiency of the Evidence

       Diaz-Flores argues that the evidence is insufficient to support his burglary conviction.

In reviewing a claim of insufficient evidence, we do not reweigh the evidence or judge the

credibility of witnesses, and we consider only the evidence that supports the judgment and

the reasonable inferences arising therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009). We will affirm the conviction if there is probative evidence from which a reasonable

trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

       To convict Diaz-Flores of class A felony burglary as charged, the State was required

to prove beyond a reasonable doubt that he broke and entered Rogel’s dwelling with the

intent to commit criminal confinement therein and that this resulted in bodily injury to her.

Appellant’s App. at 23; Ind. Code § 35-43-2-1. Criminal confinement is the knowing or

intentional confinement of a person without her consent. Ind. Code § 35-42-3-3. Diaz-

Flores contends that the State failed to prove that he intended to commit criminal

confinement when he broke and entered the apartment.

       “Intent, like the other elements of burglary, is a question of fact.” McBride v. State,

597 N.E.2d 992, 994 (Ind. Ct. App. 1992). “The State must prove beyond a reasonable doubt

that the defendant intended to commit a specific felony when he broke and entered.” Id.

“[B]reaking and entering is not itself sufficient to prove entry with intent to commit a

felony.” Eveler v. State, 524 N.E.2d 9, 11 (Ind. 1988). However,

       [b]urglars rarely announce their intentions at the moment of entry, and indeed
       many times there is no one around to hear them even if they were to do so.

                                              5
       Hence, a burglar’s intent to commit a specific felony at the time of the
       breaking and entering may be inferred from the circumstances. 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.

Baker v. State, 968 N.E.2d 227, 229-30 (Ind. 2012) (citations and quotation marks omitted).

“[I]ntent may be inferred from subsequent conduct of the defendant inside the premises.”

Eveler, 524 N.E.2d at 11.

       In Eveler, Our supreme court held that the defendant’s commission of rape and

criminal deviate conduct inside the victim’s premises was sufficient evidence standing alone

to support the inference that the defendant intended to commit rape and criminal deviate

conduct when he broke and entered the premises. Id. Under Eveler, Diaz-Flores’s

commission of criminal confinement in Rogel’s apartment is sufficient evidence to support a

reasonable inference that he intended to commit that offense when he broke and entered her

apartment. Diaz-Flores’s argument that his conduct after he broke and entered does not

support a reasonable inference of his intent to commit criminal confinement is merely an

invitation to reweigh the evidence, which we may not do. We conclude that the evidence is

sufficient to support Diaz-Flores’s conviction for class A felony burglary.

                              II. Continuing Crime Doctrine

       Diaz-Flores contends that his two convictions for criminal confinement violate the

continuing crime doctrine. “The continuing crime doctrine applies when actions ‘sufficient

in themselves to constitute separate criminal offenses may be so compressed in terms of time,

place, singleness of purpose, and continuity of action as to constitute a single transaction.’”


                                              6
Leggs v. State, 966 N.E.2d 204, 209 (Ind. Ct. App. 2012) (quoting Firestone v. State, 838

N.E.2d 468, 471 (Ind. Ct. App. 2005)). In such circumstances, the defendant may be

convicted of only one crime. Id.

       The State properly agrees that under the factual circumstances of this case, the

confinement remained continuous and only supports one conviction. Accordingly, we vacate

Count III. However, this will not affect Diaz-Flores’s aggregate sentence of thirty years, as

the sentence for Count III was consecutive to Count II but concurrent with the thirty-year

sentence for burglary.

       Affirmed in part and vacated in part.

ROBB, C.J., and PYLE, J., concur.




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