                                                                           Jun 30 2015, 7:15 am




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Timothy P. Broden                                          Gregory F. Zoeller
      Lafayette, Indiana                                         Attorney General of Indiana
                                                                 Christina D. Pace
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Lawrence J. Anderson,                                     June 30, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A02-1501-CR-10
              v.                                                Appeal from the Tippecanoe Superior
                                                                Court No. 2
      State of Indiana,                                         The Honorable Thomas H. Busch,
                                                                Judge
      Appellee-Plaintiff.
                                                                Case No. 79D02-1402-FA-09




      Vaidik, Chief Judge.



                                           Case Summary
[1]   The Indiana Supreme Court has held that walking through an open door does

      not satisfy the “breaking” element of burglary—but opening an unlocked door

      does. In this case, the defendant “rushed” a victim to gain unauthorized entry

      into a dwelling when the door was voluntarily opened for another person whom

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      the victim was expecting. We find that “rushing” someone to gain

      unauthorized entry is sufficient evidence of force used. Thus, we affirm the

      defendant’s conviction for Class A felony burglary.



                             Facts and Procedural History
[2]   Alexis Daniels owed her neighbor Cortez Collins $1000.00 for drugs she had

      purchased from him. Collins asked Alexis if she knew anyone who sold drugs

      in the Lafayette area so that he could obtain the money she owed him. Alexis

      informed Collins that Timothy Mounts sold spice. Collins told Alexis to go to

      Mounts’ apartment to buy spice and see if he kept any guns there. When Alexis

      returned from buying the spice, Collins had her draw a floorplan of Mounts’

      apartment. Collins later returned to Alexis’s apartment and told Alexis that

      they were going to rob Mounts. The plan was for Lawrence Anderson, Alexis,

      Collins, and Jaaz Jones to go to Mounts’ apartment, wait for him to open the

      door for Alexis, and then enter the apartment to rob him. At Collins’ request,

      Alexis initiated another buy from Mounts for a larger quantity of spice.


[3]   After Alexis texted Mounts that she was on her way, Mounts briefly left the

      apartment to get food for his pregnant girlfriend—Jessica Wise—who lived with

      him. As Alexis approached the door of Mounts’ apartment, Anderson and the

      two other men hid around the corner of the apartment; all were dressed in black

      and two had their faces covered with pantyhose while the third one had a sock

      hat over his head. When Alexis knocked on the door, Jessica answered.

      Because Jessica expected Alexis, she opened the door, turned, and started

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      walking toward the couch. As Alexis “stepped inside [the apartment] and to

      the side . . . [the men] bombarded themselves inside.” Tr. Vol. 1 p. 67. Alexis

      “got shoved” as the men made their way into the apartment, and Jessica was

      “rushed.” Id. at 21-22, 78. Jessica was pushed on the couch by one of the

      men—later identified as Anderson—who began to choke and hit her. Id. at 22-

      23, 78. When Jessica asked Anderson to stop hitting her because she was

      pregnant, he responded “Bit** I don’t give a fu** what you are.” Id. at 24.

      After Anderson stopped hitting her, he dragged her off the couch by her hair

      through the living room to the safes in the bedroom where he hit her in the back

      of the head repeatedly with a gun as she tried to open one of the safes. Id. at 30.

      The men eventually left with one safe and a PlayStation 3.


[4]   The State charged Anderson with seven counts in connection with this incident:

      Count I: Class A felony conspiracy to commit burglary, Count II: Class A

      felony burglary, Count III: Class B felony conspiracy to commit robbery while

      armed with a deadly weapon, Count IV: Class B felony robbery, Count V: Class

      D felony theft, Count VI: Class C felony battery, and Count VII: Class C felony

      battery. A jury found Anderson guilty on all counts. The trial court entered

      judgment of conviction for Counts II, IV, and VII only and merged the other

      counts due to double-jeopardy concerns. Tr. Vol. 2 p. 17; Appellant’s App. p.

      15.


[5]   Before sentencing, Anderson filed a motion to correct errors contending that

      there was insufficient evidence to support his Class A felony burglary

      conviction. Appellant’s App. p. 37. Specifically, Anderson argued there was

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      no evidence “of a movement of a structural impediment that could be

      considered ‘breaking.’” Id. The court denied Anderson’s motion, finding “that

      entering the apartment without permission and by force, as occurred here, is

      sufficient to constitute a breaking, whether or not the door was moved in doing

      so.” Id. at 29-30. The court reasoned that “the doorway itself was a structural

      impediment designed to prohibit unauthorized entry, the door was opened by

      subterfuge, and by forcibly crossing the threshold the defendant satisfied the

      requirement of breaking.” Id. at 30. Following the sentencing hearing, the trial

      court sentenced Anderson to thirty years for Count II: Class A felony burglary,

      twenty years for Count IV: Class B felony robbery, and eight years for Count

      VII: Class C felony battery. The court ordered the sentences to be served

      concurrently with five years suspended to probation. Id. at 15-20.


[6]   Anderson now appeals his burglary conviction only.



                                  Discussion and Decision
[7]   Anderson contends that the evidence is insufficient to support his conviction for

      burglary. On a challenge to the sufficiency of evidence to support a conviction,

      a reviewing court does not reweigh the evidence or judge the credibility of the

      witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). This Court

      respects the jury’s exclusive province to weigh conflicting evidence. Id. It

      considers only the evidence most favorable to the verdict. Id. This Court must

      affirm if the evidence and reasonable inferences drawn from the evidence could



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       have allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt. Id.


[8]    Anderson argues that there was no evidence of physical movement of a

       structural impediment that could be considered a “breaking” within the

       statutory definition for the crime of burglary. Appellant’s Br. p. 4. The State

       responds that in order to establish that a breaking has occurred, it needs only to

       introduce “evidence from which the trier of fact could reasonably infer that the

       slightest force was used to gain unauthorized entry.” Appellee’s Br. p. 7

       (quotation omitted). The State relies on the fact that Anderson and the other

       men “rushed” Jessica after coming through the open door, and argues that by

       running forcefully at Jessica, they used force to push their way into the

       apartment. Id. at 7-8. We agree.


[9]    At the time of the crime, Indiana Code section 35-43-2-1 provided that a person

       who breaks and enters the building or structure of another person, with intent to

       commit a felony in it, commits burglary, a Class C felony. Ind. Code Ann. §

       35-43-2-1 (West 2012). Burglary was elevated to a Class A felony if it resulted

       in bodily injury or serious bodily injury to any person other than the defendant.

       Ind. Code Ann. § 35-43-2-1(2)(A), (B) (West 2012).


[10]   The Indiana Supreme Court has held that walking through an open door does

       not establish “breaking”; however, breaking is established when even the

       slightest force is used to gain unauthorized entry, such as opening an unlocked

       door. See Cockerham v. State, 204 N.E.2d 654, 657 (Ind. 1965); Smith v. State,


       Court of Appeals of Indiana | Opinion 79A02-1501-CR-10 | June 30, 2015      Page 5 of 7
       535 N.E.2d 117, 118 (Ind. 1989); Trice v. State, 490 N.E.2d 757, 758-59 (Ind.

       1986).


[11]   The Indiana Supreme Court addressed a similar factual scenario in Henley v.

       State, 519 N.E.2d 525 (Ind. 1988). In that case, the defendant knocked on the

       front door of the victim’s house. When the victim answered the door, the

       defendant asked for the location of an address about a block away. After being

       given directions, the defendant asked to use the victim’s phone. The victim

       handed the phone to the defendant through the front door. After making a

       phone call, the defendant pushed the front door farther open against the victim

       and entered her house as she tried to close the door. On appeal, the defendant

       argued that the evidence was insufficient to establish a breaking because he

       “merely pushed past her through an open door.” Id. at 526-27. The Supreme

       Court noted that although the victim opened her door in response to the

       defendant’s knock, she did not intend to allow him to enter her house, as

       demonstrated by the fact that she handed the telephone to him through the

       door. Id. at 527. Accordingly, the Court found that the evidence was sufficient

       to prove a breaking because the defendant “used force to push the door farther

       open to gain entrance.” Id.


[12]   Here, the evidence shows that Alexis was the only person who had permission

       to enter Mounts’ apartment. Although Anderson did not push the door farther

       open to gain access to the apartment like the defendant in Henley, Anderson,

       Collins, and Jones—who were hiding from view when Jessica opened the

       door—“rushed” Jessica after she let Alexis in. We find that this constitutes

       Court of Appeals of Indiana | Opinion 79A02-1501-CR-10 | June 30, 2015   Page 6 of 7
force used to gain unauthorized entry into Mounts’ apartment. Moreover, the

action of barging in and jumping on Jessica can be seen as force used to gain

unauthorized entry into the apartment. Like the victim in Henley, Jessica did

not intend to let Anderson in. We therefore find that rushing someone to gain

unauthorized entry into a dwelling is sufficient evidence of force. 1 Because the

evidence is sufficient to establish the breaking element of burglary, we affirm

Anderson’s conviction for Class A felony burglary.


Affirmed.


Kirsch, J., and Bradford, J., concur.




1
 Because we reach this conclusion, we need not address Anderson’s argument that subterfuge is not
sufficient to prove the breaking element of burglary.

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