

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE
Mark Small                              Jeffrey A. Modisett
Marion County Public Defender Agency         Attorney General of Indiana
Indianapolis, Indiana
                                       Kristin T. Givens
                                        Deputy Attorney General
                                        Indianapolis, Indiana


                                   In The
                            INDIANA SUPREME COURT

ARNOLD CADE,                            )
      Defendant-Appellant,              )
                                        )
      v.                                )     49S00-9906-CR-325
                                       )
STATE OF INDIANA,                       )
      Plaintiff-Appellee.                     )
              ________________________________________________

                APPEAL FROM THE MARION COUNTY SUPERIOR COURT
                     The Honorable Cale Bradford, Judge
                       Cause No. 49G03-9809-CF-147639
              ________________________________________________

                              On Direct Appeal


                              September 6, 2000

DICKSON, Justice

      After a jury found him guilty of burglary, a class A felony,[1]
attempted robbery, a class C felony,[2] and resisting law enforcement, a
class A misdemeanor,[3] the defendant pled guilty to being a habitual
offender.  He received concurrent sentences on his three convictions, and
the thirty-year habitual offender enhancement was attached to his burglary
sentence.  The defendant argues that the evidence was insufficient to
support his convictions for burglary and resisting law enforcement, and
that the habitual offender enhancement therefore must also be vacated.
      The defendant first contends that his burglary conviction was not
established by sufficient evidence of intent to commit robbery.  He asserts
that robbery is "the felony that the information charged him with intending
to commit."  Brief of Appellant at 5.  This is incorrect.   The burglary
count did not allege entry with the intent to commit robbery.  Rather, it
charged that the defendant "did break and enter the building or structure
and dwelling of Isolede Weaver and Elizabeth Lacava, . . . with intent to
commit the felony of theft therein, . . . ."  Record at 23.  The jury was
likewise instructed that the elements of burglary in this case included the
element of "intent to commit a felony in the dwelling; to wit theft."
Record at 100.  The defendant's claim that the evidence was insufficient to
prove intent to commit robbery, as opposed to theft, is not grounds for
reversal.
      The defendant also alleges that evidence was insufficient to establish
that, when he entered the dwelling, he intended to commit theft.  In
reviewing a claim of insufficient evidence, we will affirm the conviction
unless, considering only the evidence and reasonable inferences favorable
to the judgment, and neither reweighing the evidence nor judging the
credibility of the witnesses, we conclude that no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.
Jenkins v. State 726 N.E.2d 268, 270 (Ind. 2000); Webster v. State, 699
N.E.2d 266, 268 (Ind. 1998); Hodge v. State, 688 N.E.2d 1246, 1247-48 (Ind.
1997).
      The elements of burglary as a class A felony are (1) breaking and
entering (2) a building or structure of another person (3) with the intent
to commit a felony in it and (4) the act results in bodily injury to any
person other than the defendant.  Ind. Code § 35-43-2-1.  The felony of
theft consists of knowingly or intentionally exerting unauthorized control
over property of another person, with intent to deprive the other person of
any part of its value or use.  Ind. Code § 35-43-4-2.  The defendant admits
that the victims' trial testimony supports that he intended to commit
theft, but argues that this testimony is contradicted by his own version of
the events.  He further contends that the State did not offer any
fingerprint evidence to show that he attempted to steal anything and that
the police found neither stolen currency nor a weapon when they arrested
him.
      The facts favorable to the judgment are that soon after midnight on
September 10, 1998, seventy-five year old Isolde Weaver, hearing her dog
barking outside, rose from her bed and went downstairs to let in her cat.
When she opened her door slightly, the defendant pushed the door open, came
into the front hall, grabbed her by the wrists, and pushed her.  The
defendant then said, "I want your money.  Give me your money right now."
Record at 180.  The victim's daughter, Elizabeth LaCava, hearing the
disturbance, came out from her office in the back of the house and went
into the dining room where she saw her mother struggling with the
defendant.  The daughter picked up a dining room chair to protect herself
and came towards the front hall.  The defendant demanded money from the
daughter and grabbed at the chair, causing it to strike the daughter on her
forehead.  The victim's nineteen-year-old grandson, Daniel LaCava, hearing
the struggle, ran down the stairs and began tussling with the defendant.
All three residents sustained bodily injuries resulting from the
defendant's acts.
      Applying our standard of review, we find that the defendant's
statements just after his entry are sufficient to permit a reasonable jury
to infer that at the time of entering the dwelling, the defendant intended
to commit theft.  The evidence is sufficient to support the defendant's
conviction for burglary.
      The defendant next challenges his conviction for resisting law
enforcement claiming that the evidence was not sufficient to prove that he
knowingly or intentionally failed to heed the police officer's order to
stop.  Claiming that the testimony of whether the officer did in fact order
him to stop was contradictory, the defendant contends that he did not hear
the officer order him to stop, and therefore he did not "knowingly or
intentionally" flee from the officer.
      "A person who knowingly or intentionally flees from a law enforcement
officer after the officer has, by visible or audible means, identified
himself and ordered the person to stop commits resisting law enforcement, a
Class A misdemeanor."  Ind. Code § 35-44-3-3(a)(3).
      The grandson, who had tussled with the defendant inside the house,
pursued the defendant after he left the house and caught up with him in the
backyard of a house about a block and a half away.  Officer Miller, in full
police uniform, arrived on the scene and saw the two men struggling.  A gun
shot, later discovered to have been fired by the owner of the home where
the two men were fighting, sounded.  The officer pulled his weapon and
shouted in a loud yelling voice "Police. Stop."  Record at 278.  Daniel
stopped, but the defendant ran away.  The defendant was found and arrested
about eighty yards from where the officer first saw him.
      The defendant contends the evidence was insufficient because of
testimony by the grandson and the officer that the officer may have said
"Freeze" rather than "Stop," and because passages from other parts of the
officer's testimony mentioned saying "Police" but did not include "Stop" or
"Freeze."  Considering the evidence favorable to the judgment, as we must,
we conclude that a reasonable jury could find the crime of resisting law
enforcement proven beyond a reasonable doubt.
      The defendant's final contention is that his habitual offender
enhancement cannot stand if the felony to which it is attached is reversed
for insufficient evidence.[4]  Because we found the evidence sufficient to
sustain the burglary conviction, we deny the defendant's claim for relief
from the habitual offender sentence enhancement.
      The judgment of the trial court is affirmed.
      SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
      [1] Ind. Code § 35-43-2-1.
      [2] Ind. Code § 35-42-5-1; Ind. Code § 35-41-5-1(a).

      [3] Ind. Code § 35-44-3-3(a)(3).
      [4] Arguing that his habitual offender enhancement was improper, the
defendant obliquely asserts that his attempted robbery conviction is not
supported by sufficient evidence.  The attempted robbery conviction,
however, is irrelevant to the claim that the habitual offender enhancement
is not supported by the evidence, because it was his sentence for burglary
that was enhanced after he pled guilty to being a habitual offender.

