MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                   Feb 19 2020, 10:50 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy Noe Dudas                                            Curtis T. Hill, Jr.
Richmond, Indiana                                        Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daryl Barthalow,                                         February 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-710
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89C01-1711-F2-20



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-710 | February 19, 2020                  Page 1 of 6
[1]   Daryl Barthalow (“Barthalow”) was convicted after a jury trial in Wayne

      Circuit Court of Level 3 felony burglary. Barthalow appeals and argues that the

      State presented insufficient evidence to support his conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At the time relevant to this appeal, Joshua Mays (“Joshua”) had been dating

      Barthalow’s sister, Ashley. The couple broke up in early November 2017. Also

      at this time, Barthalow was dating Tessa Sittloh (“Tessa”), whose cousin,

      Crimson Pitcher (“Crimson”) lived with Carry Sester (“Carry”) in one side of a

      duplex in Richmond, Indiana.


[4]   On November 10, 2017, Crimson, who was friends with Joshua, invited him

      and her cousin Tessa over to the duplex to drink. Tessa declined and decided to

      spend the evening with her boyfriend, Barthalow. That evening, Tessa dropped

      Joshua and Crimson off at the duplex. Inside the duplex, Joshua, Crimson, and

      Carry sat on a bed, drinking alcohol and listening to music. When Tessa went

      to Barthalow’s home, she told him and his brother Jonathon that Crimson was

      hanging out with Joshua. Barthalow and Jonathon started talking and then left

      the home.


[5]   Shortly thereafter, Crimson, Carry, and Joshua were still listening on the bed

      when they heard a loud bang and footsteps coming up the stairs to the second

      floor, where they were located. Barthalow and Jonathon, neither of whom had

      permission to enter the home, then burst into the room. Barthalow knocked
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-710 | February 19, 2020   Page 2 of 6
      Joshua off the bed, and then he and Jonathan beat and kicked Joshua “all over

      the room.” Tr. Vol. 1, p. 157. As he attacked Joshua, Barthalow said to him

      “this is for hittin’ my sister” and “you want to hit my sister.” Id. at 158; Tr. Vol.

      2, p. 4. Joshua did not resist but curled up into a fetal position to protect

      himself. Barthalow grabbed Joshua and attempted to throw him out the second-

      story window, but Carry intervened and tried to pull Barthalow off of Joshua.

      Barthalow pushed Carry against the wall and told her that what he was doing

      was “none of [her] f’n business.” Tr. Vol. 1, p. 158. Carry then attempted to call

      911, but Barthalow knocked the phone out of her hand. Carry’s sister, who

      lived on the other side of the duplex, arrived and informed Barthalow and

      Jonathon that she was calling the police. Barthalow and his brother then ceased

      their attack and left.


[6]   Barthalow and Jonathon returned to Barthalow’s home, where Tessa noticed

      that the brothers were agitated. Barthalow and Jonathon washed their hands, as

      Barthalow’s hands were bloody and injured. Tessa overheard Jonathon tell

      someone on the phone that “it was taken care of.” Tr. Vol. 2, p. 21.


[7]   As a result of the attack, Joshua suffered multiple injuries, including facial

      contusions, a laceration on his ribcage, and a swollen ear. Joshua was “pretty

      bloody” and in “a lot of pain.” Tr. Vol. 1, pp. 159, 212. Joshua’s pain was

      severe enough that he was prescribed an opiate analgesic.


[8]   On November 11, 2017, the State charged Barthalow with Level 2 felony

      burglary resulting in serious bodily injury and Level 5 felony battery resulting in


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-710 | February 19, 2020   Page 3 of 6
       serious bodily injury. On October 15, 2018, the State added an additional

       charge of Level 3 felony burglary resulting in bodily injury and moved to

       dismiss the original charges. The trial court granted this motion, leaving only

       the charge of Level 3 felony burglary. A jury trial was held on February 12–14,

       2019, at the conclusion of which the jury found Barthalow guilty as charged.

       On March 5, 2019, the trial court sentenced Barthalow to fourteen years of

       incarceration. Barthalow now appeals.1


                                             Standard of Review
[9]    Our standard of review on challenges to the sufficiency of the evidence is well

       settled. We neither reweigh the evidence nor judge the credibility of the

       witnesses, and we respect the jury’s exclusive province to weigh conflicting

       evidence. Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018), trans.

       denied. We must consider only the probative evidence and reasonable inferences

       supporting the jury’s verdict. Id. That is, we must affirm if the probative

       evidence and reasonable inferences drawn from this evidence could have

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

       reasonable doubt. Id.


[10]   To convict Barthalow of Level 3 felony burglary, the State was required to

       prove that he “did break and enter the dwelling of Crimson Pitcher and/or




       1
        Barthalow’s brother Jonathon was convicted of Level 3 felony battery as a result of his participation in the
       attack and sentenced to ten years of incarceration. See Barthalow v. State, 119 N.E.3d 204, 208 (Ind. Ct. App.
       2019).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-710 | February 19, 2020                    Page 4 of 6
       Carry Sester . . . with intent to commit a felony or theft in it, which resulted in

       bodily injury to Joshua Mays[.]” Appellant’s App. p. 43; see also Ind. Code § 35-

       43-2-1(2) (defining Level 3 felony burglary as “break[ing] and enter[ing] the

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

       in it . . . result[ing] in bodily injury to any person other than a defendant[.]”).

       Barthalow argues that the State failed to prove that, when he broke and entered

       the duplex, his intent was to batter Joshua.2


[11]   “Burglars rarely announce their intentions at the moment of entry[.]” Baker v.

       State, 968 N.E.2d 227, 229–30 (Ind. 2012) (quoting Gilliam v. State, 508 N.E.2d

       1270, 1270 (Ind. 1988)). Thus, “a burglar’s intent to commit a specific felony at

       the time of the breaking and entering ‘may be inferred from the

       circumstances.’” Id. at 230 (citing Gilliam, 508 N.E.2d at 1270). Indeed,

       “[c]ircumstantial evidence alone is sufficient to sustain a burglary conviction.”

       Id. (citation omitted). “Evidence of intent ‘need not be insurmountable,’ but

       there must be 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.

       (quoting Gilliam, 508 N.E.2d at 1271; Freshwater v. State, 853 N.E.2d 941, 944

       (Ind. 2006)).




       2
         We note that, absent other circumstances, battery is a Class B misdemeanor. Ind. Code § 35-42-2-1(c).
       Battery is a Class A misdemeanor if it results in bodily injury to any other person, id. at § 1(d), a Level 6
       felony if it results in moderate bodily injury to any other person, id. at § 1(e), and a Level 5 felony if it results
       in serious bodily injury to any other person. Id. at § 1(g).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-710 | February 19, 2020                          Page 5 of 6
[12]   Considering only the evidence favorable to the jury’s verdict, and the

       reasonable inferences that can be drawn from this evidence, we conclude that

       the jury could reasonably conclude that, when Barthalow broke and entered the

       duplex, his intent was to commit the felony of battery resulting in at least

       moderate bodily injury. Specifically, there was evidence that Joshua and

       Barthalow’s sister had recently ended their relationship. When Barthalow and

       his brother broke into the duplex, they immediately began to attack Joshua.

       And as Barthalow attacked Joshua, he stated that Joshua had either hit

       Barthalow’s sister or wanted to hit her.


                                                 Conclusion
[13]   The jury could reasonably conclude that, when he broke and entered the

       duplex, Barthalow had the intent to batter Joshua resulting in moderate bodily

       injury, which is a felony. See Barthalow v. State, 119 N.E.3d 204, 210 (Ind. Ct.

       App. 2019) (holding that there was evidence sufficient to establish Jonathon

       Barthalow’s intent to cause moderate to serious bodily injury to Joshua where

       Jonathan and his brother broke into the duplex, went upstairs, attacked Joshua,

       and attempted to throw him out the window). We therefore affirm the

       judgment of the trial court.


[14]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-710 | February 19, 2020   Page 6 of 6
