                                                          Aug 09 2013, 9:23 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STACY R. ULIANA                                GREGORY F. ZOELLER
Bargersville, Indiana                          Attorney General of Indiana

                                               RICHARD C. WEBSTER
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

THOMAS W. OSTER, II,                           )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )      No. 84A05-1208-CR-437
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                        APPEAL FROM THE VIGO SUPERIOR COURT
                            The Honorable David R. Bolk, Judge
                              Cause No. 84D03-1201-FC-220


                                     August 9, 2013

                              OPINION - FOR PUBLICATION

BRADFORD, Judge
       At approximately 7:00 p.m. on January 18, 2012, Bill Wolfe was in Large Ink, the

business in which he had his art studio, when he heard two bangs and glass shattering in

the rear of the building. Wolfe stepped outside and called 911. When police arrived,

entered the front of Large Ink, proceeded toward the rear, and announced themselves,

they heard a crash. A glass panel in the door with access to an alley had been broken,

and a mobile telephone and brick were found near the door.          Appellant-Defendant

William Oster, II was soon apprehended nearby. Oster bore fresh abrasions and cuts and

was carrying a pouch containing two screwdrivers and a pair of pliers. It was later

determined that the mobile telephone found near the door contained pictures of Oster.

       The State ultimately charged Oster with Class C felony burglary, Class A

misdemeanor criminal mischief, and with being a habitual offender.          Following a

bifurcated trial, a jury found Oster guilty as charged and to be a habitual offender. The

trial court sentenced Oster to seven years of incarceration for burglary and one year for

criminal mischief, to be served concurrently, with that sentenced enhanced by eleven

years by virtue of the habitual offender finding. Oster contends that the State failed to

produce sufficient evidence to sustain his burglary conviction or the habitual offender

finding, that his convictions violate prohibitions against double jeopardy, and that the

trial court committed fundamental error in instructing the jury. While the State concedes

that Oster’s convictions may not both stand, we conclude that Oster’s other claims are

without merit.   Consequently, we affirm in part, reverse in part, and remand with

instructions.

                      FACTS AND PROCEDURAL HISTORY

                                            2
      In January of 2012, Wolfe, an artist, painter, and sculptor, was renting studio space

in Large Ink, a printing and sign fabrication shop in Terre Haute. The Large Ink building

is located at 635 Ohio Street and had access to Ohio Street and an alleyway behind. At

approximately 7:00 p.m. on January 18, 2012, Wolfe and Todd Stokes were at Large Ink

and “heard the back door tug from the alley way[.]” Tr. p. 304. Wolfe left through the

front door and drove his truck around to the alleyway behind Large Ink but did not see

anything amiss. When Wolfe drove back around to the front of Large Ink, he noticed a

man wearing grey camouflage pants and a stocking cap walking west on Ohio Street.

Wolfe drove to a gasoline station approximately three blocks away and then decided to

“make one … more pass over at the, the shop.” Tr. p. 306. When Wolfe reentered Large

Ink through the Ohio Street door, he heard two “bangs” and then glass shattering in the

rear. Tr. p. 306. Wolfe stepped back outside, called 911, and began to walk to the

alleyway behind Large Ink.

      Terre Haute Police Officer Daniel Armentrout and Officer Toney responded and

entered Large Ink through the front door. As the officers entered Large Ink, they could

hear someone “kicking or pulling” on a metal door that led to a back room, which room

had access to the alleyway. Tr. p. 380. When Officer Armentrout yelled “Police,” he

“hear[d] footsteps run into a door, and a loud crash.” Tr. p. 381. The officers opened the

metal door and noticed that the door providing access to the alleyway had a window

broken out of it. Officer Armentrout looked out of the window and saw a figure running

south down an alleyway.



                                            3
       Meanwhile, Wolfe had walked to the alleyway behind Large Ink and was still on

the telephone with police dispatch, who informed him that “there’s an officer walking in

your front door right now.” Tr. p. 308. Soon thereafter, Wolfe turned a corner and saw a

man wearing a dark stocking cap and dark blue jacket heading south toward Walnut

Street, an east-west street south of Ohio Street. Wolfe ran over to Walnut Street and saw

a man wearing camouflage pants riding a bicycle west on Walnut Street. When asked at

trial if the man wearing camouflage pants was the same person he had seen in the

alleyway, Wolfe responded, “I don’t think, I don’t think it was the same guy, no.” Tr. p.

310.

       A police officer soon apprehended Oster “coming out the alley” onto Walnut

Street. Tr. p. 386. Oster bore fresh abrasions on the back of his head, right shin, lower

left back, left shin, right midsection, and forehead. Oster was also in possession of a

pouch that contained Phillips-head and flat-head screwdrivers and a pair of pliers. When

Wolfe and police returned to the alleyway behind Large Ink, they found a brick and

mobile telephone on the ground near the door. The mobile telephone contained several

photographs of Oster.

       The State ultimately charged Oster with Class C felony burglary, Class A

misdemeanor criminal mischief, and with being a habitual offender. In preliminary

instructions, the trial court instructed the jury, in part, as follows:

       The crime of Burglary, a Class C Felony, as charged in Count One (1) is
       defined by law as follows: 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. Before you may convict the Defendant, the
       State must have proved each of the following beyond a reasonable doubt.

                                                4
       One (1), the Defendant Thomas William Oster II; two (2) knowingly; three
       (3), broke and entered; four (4), the building or structure of Large Ink,
       L.L.C.; five (5), with intent to commit a felony, Theft, in it, by exerting
       unauthorized control over the property of Large Ink, L.L.C.

Tr. p. 267. The trial court’s final instruction on the elements of Class C felony burglary

was, for all intents and purposes, identical to its preliminary instruction. Following the

guilt phase of Oster’s trial, the jury found him guilty of Class C felony burglary and Class

A misdemeanor criminal mischief.

       During the habitual offender phase of Oster’s bifurcated trial, the State presented

testimony from former Clay County adult probation officer Steven Bell and Brandon

Loveless from the Indiana Parole Division. Bell supervised Oster when Oster was on

probation in Clay County and knew him. Bell identified several certified documents

establishing that Oster had several prior unrelated felony convictions in Clay County and

one in Parke County. Loveless testified that he had supervised Oster and was familiar

with his criminal history. Loveless testified that Oster was the same person named in the

certified documents admitted into evidence by the State during Bell’s testimony. The

jury found Oster to be a habitual offender. The trial court sentenced Oster to seven years

of incarceration for burglary and one year for criminal mischief, both sentences to be

served concurrently, and enhanced Oster’s sentence by eleven years by virtue of his

habitual offender status.

                            DISCUSSION AND DECISION

                 I. Whether the State Produced Sufficient Evidence to
                        Sustain Oster’s Burglary Conviction



                                             5
       When reviewing the sufficiency of the evidence to support a conviction, we

consider only the probative evidence and reasonable inferences supporting the verdict.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s role to assess

witness credibility and weigh the evidence to determine whether it is sufficient to support

a conviction. Id. We consider conflicting evidence in the light most favorable to the trial

court’s ruling. Id. We affirm the conviction unless no reasonable fact-finder could find

that the elements of the crime were proven beyond a reasonable doubt. Id.

       Oster contends that the State failed to produce evidence sufficient to sustain his

burglary conviction, specifically, that it failed to establish his intent to commit theft

within Large Ink. In its latest discussion on the topic of proving intent in the burglary

context, the Indiana Supreme Court wrote:

              Burglary is the breaking and entering of the building or structure of
       another person with the intent to commit a specific felony therein. Ind.
       Code § 35-43-2-1; Gilliam v. State, 508 N.E.2d 1270, 1270 (Ind. 1987);
       Yeagley v. State, 467 N.E.2d 730, 736 (Ind. 1984). ….
              “Burglars rarely announce their intentions at the moment of entry,”
       Gilliam, 508 N.E.2d at 1271, and indeed many times there is no one around
       to hear them even if they were to do so. Hence, a burglar’s intent to
       commit a specific felony at the time of the breaking and entering “may be
       inferred from the circumstances.” Id.; see also Hampton v. State, 961
       N.E.2d 480, 487 (Ind. 2012) (“[T]he mens rea element for a criminal
       offense is almost inevitably, absent a defendant’s confession or admission,
       a matter of circumstantial proof.”); Kondrup v. State, 250 Ind. 320, 323-24,
       235 N.E.2d 703, 705 (1968) (“[T]he intent to commit a felony may be
       inferred from the circumstances which legitimately permit it.”).
       “Circumstantial evidence alone is sufficient to sustain a burglary
       conviction.” Kidd [v. State], 530 N.E.2d [287, 287 (Ind. 1988)]; accord
       Cash v. State, 557 N.E.2d 1023, 1025 (Ind. 1990) (“A conviction for
       burglary may be sustained by circumstantial evidence alone.”).
              Evidence of intent “need not be insurmountable,” Gilliam, 508
       N.E.2d at 1271, but there must be a “specific fact that provides a solid basis
       to support a reasonable inference that the defendant had the specific intent

                                             6
      to commit a felony[.]” Freshwater [v. State], 853 N.E.2d [941, 944 (Ind.
      2006)]. The evidentiary inference pointing to the defendant’s intent must
      be separate from the inference of the defendant’s breaking and entering.
      Justice [v. State], 530 N.E.2d [295 , 297 (Ind. 1988)]; Kondrup, 250 Ind. at
      323, 235 N.E.2d at 705. The inference of intent must not derive from or be
      supported by the inference of breaking and entering. In other words, the
      evidence must support each inference—felonious intent and breaking and
      entering—independently, and neither inference should rely on the other for
      support. This is not to say, however, that the same piece of evidence
      cannot support both inferences.
             Requiring independent evidence of intent is necessary to maintain
      the distinction between burglary and other criminal offenses involving
      property invasion such as criminal trespass, Ind. Code § 35-43-2-2, or
      residential entry, Ind. Code § 35-43-2-1.5. Permitting the felonious intent
      element to be inferred from the inference of breaking and entering would
      render the intent element meaningless and read it out of the statute. See
      Faulkner v. State, 260 Ind. 82, 87, 292 N.E.2d 594, 596 (1973) (“If the
      Legislature had intended to punish a breaking and entry by itself, as we
      have here, they would not have added the second element of specific intent.
      A reading of the statute clearly indicates that both elements are included.”).

Baker v. State, 968 N.E.2d 227, 229-30 (Ind. 2012) (footnotes omitted).

      We conclude that the State produced sufficient evidence to prove that Oster broke

and entered Large Ink with the intent to commit theft within. First, Oster was caught

with burglary tools, namely one Phillips-head screwdriver, one flat-head screwdriver, and

a pair of pliers, tools that would be very helpful if one wished to gain access to cash

registers, cash boxes, desks, drawers, etc. It is worth noting that there is evidence that

Oster used a brick to break into Large Ink and no evidence whatsoever that Oster used his

tools to do so. In other words, his possession of tools is evidence that supports an

inference of intent to commit theft but does not derive from evidence of the breaking and

entering. This fact neatly distinguishes this case from Freshwater, in which there was




                                            7
evidence that the screwdriver in Freshwater’s possession when he was apprehended had

been used during the break-in. Freshwater, 853 N.E.2d at 942.

       Second, the very nature of the structure into which Oster broke—a retail

business—is also independent evidence of his intent to commit theft. Common sense

dictates that when one breaks into a retail business after-hours, it is more likely done with

the intent to commit theft than, say, if one breaks into an empty warehouse. Retail

businesses are likely to contain cash and/or easily-fenced items, such as computers.

Third, the record severely undercuts the notion that Oster might have been seeking

shelter, another at least plausible reason one might break into a structure. Oster was a

resident of the Lighthouse Mission in Terre Haute at the time of the break-in and so

would have had no need for alternate shelter. Oster’s possession of burglary tools, the

nature of the structure into which he broke, and the absence of any indication that he

broke into Large Ink for a reason other than theft are independent evidentiary facts

sufficient to sustain his burglary conviction.

                II. Whether the State Produced Sufficient Evidence to
                Sustain the Finding that Oster Is a Habitual Offender

       Oster contends that the State failed to establish that he is a habitual offender.

Specifically, Oster contends that the certified documents are confusing because they list

several different, albeit similar, names; Bell was insufficiently certain that Oster was the

same person he had dealt with in the past; and Loveless had not supervised Oster in

relation to any of his alleged prior convictions. “[T]he state may seek to have a person

sentenced as a habitual offender for any felony by alleging, on a page separate from the


                                                 8
rest of the charging instrument, that the person has accumulated two (2) prior unrelated

felony convictions.” Ind. Code § 35-50-2-8(a). “The court shall sentence a person found

to be a habitual offender to an additional fixed term that is not less than the advisory

sentence for the underlying offense nor more than three (3) times the advisory sentence

for the underlying offense.” Ind. Code § 35-50-2-8(h).

              Certified copies of judgments or commitments containing a
       defendant’s name or a similar name may be introduced to prove the
       commission of prior felonies. Schlomer v. State, 580 N.E.2d 950, 958 (Ind.
       1991) (citing Andrews v. State, 536 N.E.2d 507 (Ind. 1989)). While there
       must be supporting evidence to identify the defendant as the person named
       in the documents, the evidence may be circumstantial. Id.; see also Coker
       v. State, 455 N.E.2d 319, 322 (Ind. 1983). If the evidence yields logical
       and reasonable inferences from which the finder of fact may determine
       beyond a reasonable doubt that it was a defendant who was convicted of the
       prior felony, then a sufficient connection has been shown. Pointer v. State,
       499 N.E.2d 1087, 1089 (Ind. 1986).

Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999).

       Oster notes that the documents produced by the State listed the perpetrator,

variously, as “William Oster,” “Thomas W. Oster,” “Thomas W. Oster, II,” “Thomas

William Oster, II,” and “Thomas Oster” and argues that there is insufficient evidence to

prove that the same person committed all of the prior crimes or that he was that person.

We disagree. The names listed on the documents are sufficiently similar to support an

inference that they refer to the same person. More importantly, Loveless identified Oster

in court and testified that he was familiar with Oster and Oster’s criminal record; that

reviewing Oster’s criminal record was part of his supervision of him while on parole; and

that, despite the slight naming differences, Oster was in fact the person referred to in all

of the State’s certified documentation.      See, e.g., Hernandez, 716 N.E.2d at 953

                                             9
(concluding that testimony from prison officer that he was familiar with defendant and

contents of his offender packet was sufficient to establish that defendant was person

named in certified documentation of prior unrelated convictions). Oster’s argument in

this regard is nothing more than an invitation to reweigh the evidence, which we will not

do. The State produced sufficient evidence to sustain a finding that Oster is a habitual

offender.

                       III. Whether the Trial Court Committed
                      Fundamental Error in Instructing the Jury

       The trial court failed to instruct the jury that Oster, in order to have had the intent

to commit burglary as charged, must have had the intent to deprive another person of any

part of the value or use of that person’s property, which is an element of theft. See Ind.

Code § 35-43-4-2(a). While acknowledging that he did not preserve the issue below,

Oster contends that the trial court committed fundamental error in this regard. Put

another way, Oster argues that the trial court committed fundamental error in failing to

properly instruct the jury on mens rea.

               A claim that has been waived by a defendant’s failure to raise a
       contemporaneous objection can be reviewed on appeal if the reviewing
       court determines that a fundamental error occurred. See, e.g., Trice v. State,
       766 N.E.2d 1180, 1182 (Ind. 2002); Hayworth v. State, 904 N.E.2d 684,
       694 (Ind. Ct. App. 2009). The fundamental error exception is “extremely
       narrow, and applies only when the error constitutes a blatant violation of
       basic principles, the harm or potential for harm is substantial, and the
       resulting error denies the defendant fundamental due process.” Mathews v.
       State, 849 N.E.2d 578, 587 (Ind. 2006). The error claimed must either
       “make a fair trial impossible” or constitute “clearly blatant violations of
       basic and elementary principles of due process.” Clark v. State, 915 N.E.2d
       126, 131 (Ind. 2009). This exception is available only in “egregious
       circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).


                                             10
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).

       We conclude that the trial court’s failure to instruct the jury on mens rea did not

amount to fundamental error in this case. The overriding issue at trial was identity, not

intent, and the Indiana Supreme Court has held that failing to properly instruct the jury on

mens rea is not fundamental error when intent is not an issue at trial. See, e.g., Swallows

v. State, 674 N.E.2d 1317, 1318 (Ind. 1996) (concluding that there was no fundamental

error in failing to instruct on the specific intent to kill where “[t]he intent of the

Defendant was not in issue, as the theory of defense revolved around proving the State

could not show ‘beyond a reasonable doubt that my client, Mitch Swallows, is the one

who had done all of these things’”).

       A review of the trial transcript reveals that Oster focused all of his trial energy on

attacking evidence that he was the person who broke into Large Ink. Wolfe could not

identify Oster as the person he saw in the alley behind the store the night of the break-in.

Wolfe also testified that he twice saw a man wearing grey camouflage pants in the area

around the time of the break-in. Oster’s cross-examination of Wolfe focused on Wolfe’s

inability to identify the person he saw in the alley and Wolfe’s testimony that both the

man in the alley and the man in the camouflage pants were wearing dark jackets. Oster

would later argue that the man in the camouflage pants was likely the actual burglar.

       Officer Armentrout responded to the break-in at Large Ink and testified that Oster

exhibited several abrasions and scratches when apprehended.            Officer Armentrout

characterized the wounds as fresh, allegedly suffered while fleeing through a broken



                                             11
glass door at Large Ink. Oster’s cross-examination again focused on identity, specifically

attacking Officer Armentrout’s testimony regarding the freshness of the wounds.

       Terre Haute Police Detective Michael Mikuly testified primarily regarding a

mobile telephone that was found next to the broken glass door at Large Ink. Detective

Mikuly testified that the mobile telephone contained photographs of Oster. Oster’s cross-

examination focused on the lack of DNA and fingerprint evidence gleaned from the

mobile telephone, the lack of footprint evidence, the lack of DNA evidence collected

from any broken glass, and the fact that the mobile telephone contained no specific

identification of its owner.

       Finally, Oster’s final argument focused entirely on identity and included the

following specific arguments: (1) Wolfe could not place Oster at Large Ink on the night

of the break-in; (2) the State failed to establish that Oster’s wounds were caused by him

“diving through this broken glass[,]” Tr. p. 529; (3) there was no DNA, blood,

fingerprint, or footprint evidence tying Oster to the scene; (4) the State failed to establish

that the mobile telephone belonged to Oster; and (5) the man in the camouflage pants was

actually the person who broke into Large Ink, not Oster. In summary, at no point while

cross-examining any State’s witness or during any argument did Oster deny, or even

suggest, that no burglary had taken place—only that the State failed to prove that Oster

was the burglar. Because mens rea was not at issue during trial, Swallows and similar

cases control. The trial court’s failure to instruct the jury on all of the elements of theft

did not amount to fundamental error.

             IV. Whether Oster’s Convictions for Burglary and Criminal

                                             12
                Mischief Violate Prohibitions Against Double Jeopardy

       Oster contends, and the State concedes, that Oster’s convictions for Class C felony

burglary and Class A misdemeanor criminal mischief violate constitutional prohibitions

against double jeopardy. Pursuant to Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999),

Oster’s criminal mischief conviction should be vacated, because it is the one with “less

severe penal consequences[.]”

                                    CONCLUSION

       We conclude that the State produced sufficient evidence to sustain Oster’s Class C

felony burglary conviction and the finding that he is a habitual offender. We also

conclude that the trial court did not commit fundamental error in instructing the jury. We

agree, however, that Oster’s conviction for Class A misdemeanor criminal mischief

violates constitutional prohibitions against double jeopardy. We therefore remand with

instructions to vacate Oster’s conviction and sentence for criminal mischief.

       The judgment of the trial court is affirmed in part, reversed in part, and remanded

with instructions.

BROWN, J., concurs.

RILEY, J., dissents with opinion.




                                            13
                              IN THE
                    COURT OF APPEALS OF INDIANA

THOMAS W. OSTER, II,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 84A05-1208-CR-437
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


RILEY, Judge, dissenting


       I respectfully dissent from the majority’s decision to affirm Oster’s conviction for

burglary because I find insufficient evidence to support the conviction. Oster argues that

the “there was no evidence of felonious intent to commit theft after the breaking and

entering the Large Ink building.” (Appellant’s Br., p. 5). In order to convict a person of

burglary, the State must prove beyond a reasonable doubt that he or she broke and

entered the building or structure of another person with intent to commit a felony in it.

I.C. § 35-43-2-1. Here, Oster does not deny that he broke and entered Large Ink’s

building. Rather, he argues that the State failed to present sufficient evidence to prove

that he did so with intent to commit a felony therein.

       To establish the “intent to commit a felony” element of a burglary charge, the

State must prove beyond a reasonable doubt the defendant’s intent to commit the felony

specified in the charging information. Freshwater v. State, 853 N.E.2d 941, 942 (Ind.


                                            14
2006). Intent to commit a given felony may be inferred from the circumstances, but

some fact in evidence must point to a fact to commit the specified felony. Id. at 943. The

evidentiary inference pointing to the defendant’s intent must be separate from the

inference of the defendant’s breaking and entering. Justice v. State, 530 N.E.2d 295, 297

(Ind. 1988).

       Requiring independent evidence of intent is necessary to maintain the distinction

between burglary and other criminal offenses involving property invasion such as

criminal trespass, Ind. Code § 35-43-2-2, or residential entry, Ind. Code § 35-43-2-1.5.

Permitting the felonious intent element to be inferred from the inference of breaking and

entering would render the intent element meaningless and read it out of the statute. See

Faulkner v. State, 260 Ind. 82, 87, 292 N.E.2d 594, 596 (1973) (“If the Legislature had

intended to punish a breaking and entry by itself, as we have here, they would not have

added the second element of specific intent. A reading of the statute clearly indicates that

both elements are included.”).

        Here, the State alleged, and was required to prove, that Oster had the intent to

commit theft when he broke and entered Large Ink. Oster claims that the State failed to

meet its burden. Freshwater, 853 N.E.2d at 941, is instructive. There, Freshwater broke

into a car wash but ran out when the alarm sounded. Id. When he was apprehended by

the police, Freshwater was carrying a screwdriver that matched pry marks on the car

wash door. Id. However, there was no evidence that Freshwater touched anything when

he was inside the car wash or that he took anything with him when he left.               Id.

Freshwater was charged with and convicted of burglary. Id.

                                            15
       On appeal, the Indiana Supreme Court explained that, “in order to sustain a

burglary charge, the State must prove 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.

The court concluded that no such fact had been proven against Freshwater. Id. There

was no evidence that he was near or approaching anything valuable in the car wash, there

was nothing missing from the building or cash register, and the office appeared to have

been undisturbed. Id. The court therefore reversed Freshwater’s conviction. Id. at 945.

       Similarly, in Justice, 530 N.E.2d at 295, Justice entered Tammy Bryant’s home

and walked into her bedroom wearing black socks on his hands. Id. When Bryant

recognized him and called his name, Justice immediately left the house. Id. When the

police arrived, they discovered that a screen had been removed from a dining room

window and left on the ground outside and that the back door had been left open. Id.

The State charged Justice breaking and entering Bryant’s residence with intent to commit

theft. Id. A jury convicted him of burglary. Id.

       On appeal, the Indiana Supreme Court concluded that there was no fact in

evidence that provided a solid basis to support a reasonable inference that the defendant

had the specific intent to commit theft. Id. at 297. Although there was evidence of

breaking and entering, there was no evidence that Justice touched, disturbed, or even

approached any valuable property.        Id.    Accordingly, the court reversed Justice’s

conviction. Id.

       Here, as in Freshwater and Justice, the State has failed to prove a specific fact that

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

                                               16
to commit a felony. The method by which Oster entered the building suggests nothing

more than that he broke in. He could have done so for any number of reasons that do not

include theft. There is no evidence that Oster touched anything or took anything with

him during his brief time in Large Ink. Except for the broken window, nothing in the

business was disturbed. The fact that Oster was apprehended with two screwdrivers and

a pair of pliers does not change this result.

       Although the evidence in this case might well support the conclusion that Oster

“intended some undetermined sort of wrongdoing, mischief, misdeed, or immoral or

illegal act[,] that is not the issue to be resolved.” Freshwater, 853 N.E.2d at 943 (quoting

Gebhart v. State, 531 N.E.2d 211, 212 (Ind. 1988)). Where the State cannot establish

intent to commit a particular underlying felony, criminal trespass is the appropriate

charge. I would therefore reverse Oster’s burglary conviction.




                                                17
