MEMORANDUM DECISION
                                                              Aug 24 2015, 8:53 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Kurt A. Young                                             Gregory F. Zoeller
Nashville, Indiana                                        Attorney General of Indiana

                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Eugene Hill,                                             August 24, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1502-CR-43
        v.                                               Appeal from the Marion County
                                                         Superior Court;
                                                         The Honorable Christina Klineman,
State of Indiana,                                        Judge;
Appellee-Plaintiff.                                      49G17-1410-F6-48234




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015    Page 1 of 6
[1]   Eugene Hill appeals the sufficiency of evidence supporting his conviction of

      Level 6 felony residential entry. 1 We affirm.


                                     Facts and Procedural History
[2]   In October 2014, Andrea Gilmore was living off and on in an apartment that

      had been leased by her father, who was no longer living in the apartment due to

      illness. Gilmore kept most of her clothing and some other possessions in the

      apartment, and she intended to take over her father’s lease because he would

      not be returning.


[3]   At 8 a.m. on October 13, Gilmore returned to the apartment to change her

      clothes before going to work. When she unlocked the door and entered the

      residence, she immediately noticed a strong odor of urine. As she walked

      further into the apartment she noticed Hill sitting on the couch crying. Gilmore

      knew Hill, who had been at the apartment on other occasions, but he did not

      have a key to the apartment and she had not given him permission to enter on

      this date. Gilmore asked Hill what he was doing, why it smelled “like pee,”

      (Tr. at 26), and “what the f*** is goin’ [sic] on?” (Id.) When she noticed her

      clothing torn up in pieces on the floor and wet with urine, she asked why her

      clothes smelled like urine, and “that’s when everything went crazy.” (Id. at 27.)

      Hill “hopped up” off the couch, “knocked” her back, and “pounded on” her.

      (Id.) Hill punched Gilmore with his fists and kicked her as he accused her of




      1
          Ind. Code § 35-43-2-1.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015   Page 2 of 6
      being “out havin’ sex,” (id. at 28), and he threatened to break her hands so she

      could no longer work as a hair dresser. Gilmore’s uncle, who lived in an

      adjacent apartment, began pounding on her apartment door. When the

      pounding stopped, Hill fled.


[4]   A few moments later, Gilmore’s uncle returned with the police. They found a

      screen had been broken out of a window into Gilmore’s apartment and the

      window had been raised. The screen was not normally on the ground where it

      was found. Gilmore’s left eye was swollen shut and had scratches above it, and

      she had cracked ribs.


[5]   The State charged Hill with level 6 felony intimidation, 2 level 6 felony

      residential entry, class A misdemeanor battery resulting in bodily injury, 3 and

      class B misdemeanor criminal mischief, 4 and it alleged Hill was an habitual

      offender. 5 Hill waived his right to a jury trial. After the State presented all of its

      evidence, the court granted Hill’s motion to dismiss the intimidation charge.

      After Hill presented evidence, the court found Hill guilty of the remaining

      crimes and entered a conviction of level 6 felony residential entry. Hill agreed

      he was an habitual offender in exchange for the State’s agreement he would

      receive a three-year sentence – one year for residential entry and two years for




      2
          Ind. Code § 35-45-2-1(a)(2) (2014)
      3
          Ind. Code § 35-42-2-1(b)(1).
      4
          Ind. Code § 35-43-1-2(a).
      5
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015   Page 3 of 6
      being an habitual offender. The court accepted that agreement and sentenced

      Hill accordingly.


                                     Discussion and Decision
[6]   When an appellant challenges sufficiency of evidence supporting a conviction,

      we do not reweigh the evidence or assess the credibility of witnesses. Willis v.

      State, 27 N.E.3d 1065, 1066 (Ind. 2015). Rather, considering only the facts and

      inferences most favorable to the judgment, we affirm if “there is substantial

      evidence of probative value supporting each element of the offense such that a

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

      reasonable doubt.” Id.


[7]   Residential entry occurs when a person “knowingly or intentionally breaks and

      enters the dwelling of another person.” Ind. Code § 35-43-2-1.5. Hill asserts he

      had consent to be in the apartment. “Lack of consent is not an element of the

      offense [of residential entry that] the State is required to prove.” McKinney v.

      State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995). Rather, the defendant has the

      burden to raise the defense of consent. Holman v. State, 816 N.E.2d 78, 81 (Ind.

      Ct. App. 2004), trans. denied. See also Ind. Code § 35-41-3-7 (“It is a defense that

      the person who engaged in the prohibited conduct was reasonably mistaken

      about a matter of fact, if the mistake negates the culpability required for

      commission of the offense.”). “Upon invoking mistake of fact as a defense, the

      burden shifts to the defendant to satisfy three elements: (1) that the mistake be

      honest and reasonable; (2) that the mistake be about a matter of fact; and (3)


      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015   Page 4 of 6
      that the mistake negate the culpability required to commit the crime.” Chavers

      v. State, 991 N.E.2d 148, 151 (Ind. Ct. App. 2013) (internal citations and

      quotations omitted), trans. denied. Thus, to avail oneself of the defense of

      consent, a person’s belief that he has permission to enter must be reasonable.

      McKinney, 653 N.E.2d at 118.

              The State, however, retains the ultimate burden of proving beyond a
              reasonable doubt every element of the charged crime, including
              culpability or intent, which would in turn entail proof that there was
              no reasonably held mistaken belief of fact. In other words, the State
              retains the ultimate burden of disproving the defense beyond a
              reasonable doubt. The State may meet its burden by directly rebutting
              evidence, by affirmatively showing that the defendant made no such
              mistake, or by simply relying upon evidence from its case-in-chief.
      Chavers, 991 N.E.2d at 151-52.


      The trial court, in explaining why it found Hill guilty of residential entry, noted

      testimony Hill did not have a key to the property and evidence the window had

      been opened and the screen broken. It explicitly noted

              the Court did not believe Mr. Hill. Because a person who lives at a
              residence or dwelling would not—a reasonable person wouldn’t
              urinate all over their apartment, nor the clothes of another person
              livin’ [sic] in that apartment. Simply put, the Court had to weigh
              credibility of Mr. Hill . . . and the credibility of Ms. Gilmore, and the
              court did not believe Mr. Hill.
      (Tr. at 60-61.)


[8]   It is the trial court’s prerogative to weigh the evidence and to determine

      credibility in reaching its judgment. Transcon. Ins. Co. v. J.L. Manta, Inc., 714

      N.E.2d 1277, 1284 (Ind. Ct. App. 1999). Gilmore, who resided in the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015   Page 5 of 6
       apartment, testified Hill had not been given permission to be there that day,

       nor, to her knowledge, had he been given a key. 6 When she saw Hill in the

       apartment, she immediately asked what he was doing and “what the f*** is

       goin’ [sic] on?” (Tr. at 26.) Those questions suggest she had not consented to

       his presence in the apartment.


[9]    Even if Hill believed he had consent to enter the apartment, such belief was not

       reasonable when he entered by breaking a screen and crawling through a

       window. See Mitchell v. State, 712 N.E.2d 1050, 1055 (Ind. Ct. App. 1999)

       (although Mitchell had lived in home for a time, he had been told to leave on

       two occasions, and although he claimed he entered with a key, police did not

       find the key where he claimed he placed it).


[10]   The evidence is sufficient to demonstrate beyond a reasonable doubt that Hill

       committed residential entry and, accordingly, we affirm.


[11]   Affirmed.


       Crone, J., and Bradford, J., concur.




       6
         Hill argues he cannot be convicted of residential entry into Gilmore’s apartment because the apartment was
       leased by her father, not her. Regardless who leased the apartment, Gilmore testified her father was not
       returning to the apartment due to illness, she kept all of her clothing there, she sometimes slept there, and she
       intended to take over the lease. Under these facts, we hold no reversible error resulted from the State
       charging Hill with entry of Gilmore’s residence, as Hill was not misled about the location of the crime
       alleged. See, e.g., Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987) (finding no reversible error in charge for
       burglarizing the New Mount Olive Baptist Church, where charge alleged building broken and entered was
       owned by Southern Baptist Mission Board, which held the mortgage, but evidence demonstrated ownership
       was in the New Mount Olive Baptist Church congregation itself, because defendant was not misled about the
       location of the burglary and could prepare a defense).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015                 Page 6 of 6
