MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   Aug 11 2015, 5:50 am
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
Kristin A. Mulholland                                    Gregory F. Zoeller
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Major Loren Wilson,                                      August 11, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1412-CR-425
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff.                                      Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1403-FA-10



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015           Page 1 of 7
[1]   Major Loren Wilson was convicted of criminal deviate conduct 1 as a Class A

      felony and burglary2 as a Class B felony, was adjudicated a habitual offender,

      and was sentenced to an aggregate 100 years of incarceration. He appeals and

      raises the following restated issue for our review: whether the State presented

      sufficient evidence to support his conviction for Class B felony burglary.


[2]   We affirm.


                                   Facts and Procedural History
[3]   In the early morning hours of March 4, 2014, T.R. was alone in the apartment

      she shared with her mother. T.R.’s mother had left for work and locked the

      door when she left. T.R. was in her bedroom watching television when, at

      approximately 2:00 a.m., she heard someone in the apartment. She assumed

      her mother had forgotten something and returned. T.R. looked up and saw a

      man standing in her bedroom doorway, holding a knife and wearing a black ski

      mask and yellow latex gloves. He entered the bedroom and told T.R. to turn

      off the television so she would not recognize his face. T.R. unplugged the

      television from the outlet behind the bed. She attempted to get off of the bed,




      1
        See Ind. Code § 35-42-4-2. We note that, effective July 1, 2014, this statute was repealed. However, as
      Wilson committed his crimes prior to that date, he was charged under the version of the statute in effect at
      the time he committed the crimes.
      2
        See Ind. Code § 35-43-2-1. We note that, effective July 1, 2014, a new version of this criminal statute was
      enacted. Because Wilson committed his crimes prior to July 1, 2014, we will apply the statute in effect at the
      time he committed his crimes.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015               Page 2 of 7
      but the intruder pushed her back on the bed and put the knife against her neck.

      The man then ordered T.R. to remove all of her clothes and to lie on the bed.


[4]   T.R. recognized the man’s voice as having the distinct accent of her downstairs

      neighbor, Wilson. As T.R. was lying on the bed, Wilson rubbed his gloved

      hand over her body and ordered her to turn over onto her stomach, while he

      continued to rub her body. Wilson then told T.R. to again lie on her back, and

      he removed the glove off of his right hand and inserted his finger into her

      vagina. After that, Wilson removed the part of his ski mask that covered his

      mouth and performed oral sex on T.R. During the entire assault, Wilson held

      the knife in his hand.


[5]   Afterward, Wilson ordered T.R. to go to the bathroom and followed her with

      the knife in his hand. He told her to clean her vagina with a washcloth and

      watched as she did so. Wilson then had T.R. go back to the bedroom and lie

      back on the bed. He directed T.R. to turn the television back on. He then took

      several photos of her vagina with his cell phone. Wilson asked T.R. what she

      was going to do next, and she replied that she was going to sleep. Wilson left

      the apartment, but T.R. was too frightened to call the police at that time. She

      put her clothes back on and tried to fall asleep, which she was eventually able to

      do.


[6]   The next morning, Wilson knocked on T.R.’s door, and when she answered the

      door, he handed her a note. The note stated, “[T.R.] as I said, don’t say

      anything to anyone, not even your mother.” State’s Ex. 7. T.R. recognized the


      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015   Page 3 of 7
      handwriting as being Wilson’s because he had previously given her and her

      mother holiday cards. After he handed T.R. the note, Wilson returned to his

      own apartment.


[7]   When T.R.’s mother returned from work, T.R. told her mother what happened,

      and her mother called the police. The police arrived and arrested Wilson. T.R.

      went to a local hospital, and a rape kit was performed. A minor DNA profile

      consistent with Wilson’s DNA was located on toilet paper that was lining

      T.R.’s underwear at the time of the assault. This minor DNA profile consistent

      with Wilson’s DNA would likely only occur once in eighty-three million

      unrelated individuals. T.R. identified Wilson as her attacker from a

      photographic array and later identified him in court as well. A handwriting

      analysis was performed on the note Wilson gave T.R., and a conclusion was

      made that Wilson wrote the note.


[8]   The State charged Wilson with Class A felony criminal deviate conduct, two

      counts of Class B felony criminal deviate conduct, Class B felony criminal

      confinement, Class B felony burglary, Class B felony burglary while armed with

      a deadly weapon, Class C felony battery by means of a deadly weapon, Class C

      felony sexual battery, Class D felony sexual battery, and Class D felony

      criminal confinement. The State also alleged that Wilson was a habitual

      offender. Wilson was found guilty as charged at the conclusion of a jury trial,

      and Wilson admitted to being a habitual offender. The trial court entered

      judgment only for Wilson’s convictions of Class A felony criminal deviate

      conduct and Class B felony burglary while armed with a deadly weapon and

      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015   Page 4 of 7
       found Wilson to be a habitual offender. Wilson was sentenced to fifty years for

       the criminal deviate conduct conviction, enhanced by thirty years for the

       habitual offender finding, and twenty years for the burglary conviction, for a

       total executed sentence of 100 years. Wilson now appeals.


                                      Discussion and Decision
[9]    The deferential standard of review for sufficiency claims is well settled. This

       court will neither reweigh the evidence nor assess the credibility of witnesses.

       Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.

       State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only

       the evidence and reasonable inferences most favorable to the trial court’s ruling.

       Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could

       find the elements of the crime proven beyond a reasonable doubt. Tooley, 911

       N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to

       support the conclusion of the trier of fact, then the verdict will not be disturbed.

       Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006).


[10]   Wilson argues that the State failed to present sufficient evidence to support his

       conviction for Class B felony burglary while armed with a deadly weapon. He

       specifically alleges that the State failed to prove that he broke into T.R.’s

       apartment because no evidence was presented to establish how he “might have

       entered the apartment.” Appellant’s Br. at 9. Wilson contends that, because

       there was no evidence as to how he could have gotten into the apartment, the




       Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015   Page 5 of 7
       State failed to meet its burden of proof, and insufficient evidence was presented

       to support his burglary conviction.


[11]   In order to convict Wilson of Class B felony burglary while armed with a

       deadly weapon, the State was required to prove beyond a reasonable doubt that

       he broke and entered the dwelling of T.R. with the intent to commit the felony

       of sexual battery while armed with a deadly weapon. Ind. Code § 35-43-2-1.

       “‘Using even the slightest force to gain unauthorized entry satisfies the breaking

       element of the crime.’” Hall v. State, 870 N.E.2d 449, 462-63 (Ind. Ct. App.

       2007) (quoting Davis v. State, 770 N.E.2d 319, 322 (Ind. 2002)), trans. denied. As

       an example, “‘opening an unlocked door or pushing a door that is slightly ajar

       constitutes a breaking.’” Id. at 463 (quoting Davis, 770 N.E.2d at 322 (citation

       omitted)). Circumstantial evidence alone can prove the occurrence of a

       breaking. Payne v. State, 777 N.E.2d 63, 66 (Ind. Ct. App. 2002).


[12]   Here, the evidence presented at trial showed that T.R.’s mother had shut and

       locked the apartment door when she left for work about thirty minutes before

       Wilson entered the apartment. T.R. was alone in the apartment watching

       television when she noticed Wilson in her bedroom doorway. Wilson does not

       challenge the sufficiency for his conviction of criminal deviate conduct and,

       therefore, does not challenge the fact that he was present in the apartment, he

       merely alleges that there was insufficient evidence to prove how he got into the

       apartment.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-425 | August 11, 2015   Page 6 of 7
[13]   In Cockerham v. State, 246 Ind. 303, 307-08, 204 N.E.2d 654, 657 (1965), our

       Supreme Court held that a jury can reasonably conclude that “no one could

       enter the home with the windows and doors [locked] and closed without

       opening such doors or windows.” The Supreme Court went on to state, “This

       would constitute a ‘breaking’ even though there be no physical marks showing

       that force was used . . . [because] [a]s a matter of logic, no one could conclude

       otherwise than that a door or window had to be pushed open to get inside the

       house.” 246 Ind. at 308, 204 N.E.2d at 657.


[14]   We, therefore, conclude that, based on the evidence presented, the jury could

       reasonably infer that Wilson broke and entered T.R.’s apartment with the intent

       to commit sexual battery. The State was not required to prove the exact means

       of Wilson’s entry into the apartment or that force was used to gain entry. It was

       sufficient to prove that Wilson was inside the apartment and could only have

       gotten inside by opening the door, which T.R.’s mother had shut and locked

       when she left for work. We conclude that the State presented sufficient

       evidence to support Wilson’s conviction for burglary.


[15]   Affirmed.


       Najam, J., and Barnes, J., concur.




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