MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Dec 11 2019, 7:48 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis, T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Wayne Day,                                        December 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-568
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Amy J. Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1606-F5-24381



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019                   Page 1 of 7
                                               Case Summary


[1]   Following a bench trial, Robert Day was convicted of Level 5 felony attempted

      burglary and Class A misdemeanor resisting law enforcement. On appeal, Day

      challenges the sufficiency of the State’s evidence with respect to only his

      conviction for attempted burglary.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In the early morning hours of June 21, 2016, Officers Derek Loyal and Aaron

      Tate from the Lawrence Police Department responded to an alarm at the local

      Veterans of Foreign Wars post (the VFW). Upon exiting their vehicles at the

      front (south side) of the VFW, the officers heard a loud banging coming from

      the west side of the building. When they followed the noise to its source, the

      officers saw Day repeatedly striking the back door of the building with a

      hammer. Officer Loyal called out to Day, “Stop, Lawrence Police. Show us

      your hand.” Transcript Vol. II at 9. Day turned toward the officers, raised the

      hammer as if to throw it, but then dropped the hammer and took off running

      westbound toward a tree line. Officer Tate unsuccessfully deployed his taser as

      Day reached the tree line and then Officer Loyal continued to chase Day on

      foot through a parking lot and then across Thunderbird Road.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019   Page 2 of 7
[4]   After apprehending Day in a field across the road, Officers Loyal and Tate

      inspected the area and observed damage to the VFW building. Specifically, the

      metal weather stripping had been ripped off the side door and all the exterior

      wires to the building had been cut. A walkie talkie was recovered near the

      door Day had been striking, and the claw hammer was found nearby. Officer

      Loyal also noticed a vehicle parked in a lot just west of the tree line through

      which Day had fled. The truck was backed in at an angle and parked partially

      in the grass and away from the designated parking spots. Inside the vehicle, in

      open view, was a pair of large bolt cutters and a small sledgehammer on the

      passenger seat.


[5]   John Armstrong, a member of the VFW, arrived on the scene shortly after the

      alarm sounded. Armstrong walked the grounds and identified the damage to

      the door and wiring of the building. Additionally, he noticed that an outside

      barn on the northwest side of the VFW property had been burglarized.

      According to Armstrong, the lock to the barn had been cut off, the doors were

      opened, and the “stuff that was in it” had been removed and was “sitting

      outside of the barn.” Id. at 30.


[6]   On June 23, 2016, the State charged Day with Count 1, attempted burglary, a

      Level 5 felony; Count 2, resisting law enforcement, a Class A misdemeanor;

      and Count 3, criminal mischief, a Class A misdemeanor. The trial court found

      Day guilty of both Counts 1 and 2 but did not enter a judgment of conviction

      on Count 3 because it would “merge” with Count 1. Transcript Vol. II at 51. A

      sentencing hearing was held on February 12, 2019, at which the trial court

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019   Page 3 of 7
      imposed a four-year executed sentence. Day now appeals, challenging the

      sufficiency of the evidence to support his conviction for attempted burglary.


                                          Discussion & Decision


[7]   In reviewing the sufficiency of evidence, we consider only the probative

      evidence and reasonable inferences supporting the conviction. Drane v. State,

      867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses

      or reweigh the evidence, and we will affirm unless no reasonable factfinder

      could find the elements of the crime proven beyond a reasonable doubt. Id. It

      is not necessary that the evidence overcome every reasonable hypothesis of

      innocence; rather, the evidence will be found sufficient if an inference may

      reasonably be drawn from it to support the conviction. Id. at 147. A conviction

      may be based purely on circumstantial evidence if that evidence supports a

      reasonable inference of guilt. Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).


[8]   In Indiana, a person commits Level 5 felony burglary by breaking and entering

      the building or structure of another person with intent to commit a felony or

      theft inside. See Ind. Code § 35-43-2-1. A person is guilty of attempt when,

      acting with the culpability required for commission of the crime, he engages in

      conduct constituting a substantial step toward commission of the crime. Ind.

      Code § 35-41-5-1(a).


[9]   Day argues that the State failed to prove that he intended to burglarize the

      VFW rather than simply vandalize its exterior. More specifically, he asserts:

      “[A]ny evidence Day intended to take the further step of burglarizing the VFW

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019   Page 4 of 7
       is vague speculation, requiring imagination or conjecture to draw inferences of

       guilt. The evidence in the record reveals no rational course of conduct aimed at

       committing a burglary.” Appellant’s Brief at 10. We do not agree.


[10]   “Specific intent in an attempted burglary action does not prescribe a requisite

       level of mens rea for the burglary itself, but rather requires that the defendant

       intended to commit the underlying felony [or theft] once he broke into and

       entered onto the premises.” Richeson v. State, 704 N.E.2d 1008, 1009 n.1 (Ind.

       1998). It is well established that, regarding the intent element of burglary, the

       intent to commit a felony or theft inside may not be inferred from proof of

       breaking and entering alone. Freshwater v. State, 853 N.E.2d 941, 943 (Ind.

       2006). Further, flight alone may not be used to infer that intent. Id. However,

       these facts may combine with other evidence to establish the actor’s intent, such

       as removal of property from the premises. Id. The additional evidence need

       not be “insurmountable,” but it must provide “a solid basis to support a

       reasonable inference that the defendant had the specific intent to commit theft.”

       Id. (citing Justice v. State, 530 N.E.2d 295, 296 (Ind. 1988)).


[11]   Here, the State established that around four o’clock in the morning Day was

       discovered by officers repeatedly striking on the back door of the VFW building

       with a clawed hammer. In his efforts, Day had pried away the metal weather

       stripping around the door in an apparent attempt to gain entry. The wiring to

       the building had been cut, including the security cables. These facts indicate a

       desire to avoid detection while attempting to break and enter the VFW.

       Additional facts also suggest that Day might have been communicating and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019   Page 5 of 7
       working with someone else through the walkie talkie and that he had a truck

       nearby to assist in moving any stolen items. In fact, when confronted by police,

       Day fled westbound in the direction of the curiously parked truck, which

       contained bolt cutters and other tools. As the officers pursued him, Day

       continued through the parking lot and across a street into a field.


[12]   In addition to the above facts, the State presented evidence that an outbuilding

       on the VFW’s property, the northwest side of the property, had been broken

       into. The lock was cut off, the doors were opened, and property from inside the

       barn had been moved to the outside. The burglary of the outbuilding, though

       not charged, appeared to be part of a coordinated criminal episode that

       morning. Thus, we agree with the trial court that the evidence regarding the

       outbuilding was indicative of Day’s intent with respect to the main VFW

       building. See Timmons v. State, 500 N.E.2d 1212, 1215 (Ind. 1986) (“This Court

       has previously indicated that evidence of a burglary predicated on theft which

       was committed during the course of a criminal episode that included an

       attempted burglary may be sufficient evidence to infer the specific intent

       requisite for the attempted burglary conviction.”).


[13]   We conclude that it was reasonable for the trial court to infer Day’s intent to

       commit a theft inside the VFW building based on the totality of the

       circumstances presented at trial. Moreover, we reject Day’s attempt to have us

       reweigh each piece of evidence in isolation.


[14]   Judgment affirmed.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019   Page 6 of 7
Brown, J. and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019   Page 7 of 7
