MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Aug 09 2017, 7:12 am

the defense of res judicata, collateral                                     CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                         Curtis T. Hill, Jr.
Lisa M. Johnson                                          Attorney General of Indiana
Marion County Public Defender
Appellate Division                                       Michael Gene Worden
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cashmere Poole,                                          August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-569
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-1610-F2-42523



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017            Page 1 of 8
[1]   Cashmere Poole was convicted, after a bench trial, of burglary as a Level 2

      felony. 1 Poole asserts there was insufficient evidence that he intended to

      commit serious bodily injury 2 when he broke into the residence of his father,

      Ferry Poole. Contrary to Poole’s argument, to prove Poole entered Ferry’s

      residence with the intent to commit battery that would be a felony, the State

      needed to prove only that Poole entered with the intent to commit moderate

      bodily injury. 3 As the State met its burden, we affirm.



                                Facts and Procedural History
[2]   On October 25, 2016, Poole and his father, Ferry, spent much of the day

      drinking alcoholic beverages together. Then, around 10:00 p.m., while they sat

      in Poole’s car outside Ferry’s house, they began to argue. Ferry ran into his

      house, closed and locked the door, and called 911 for assistance because he was

      afraid that Poole would harm him. While Ferry was on the phone with 911,




      1
          Ind. Code § 35-43-2-1 (2014).
      2
          “Serious bodily injury” is defined as

                 bodily injury that creates a substantial risk of death or that causes:
                          (1) serious permanent disfigurement;
                          (2) unconsciousness;
                          (3) extreme pain;
                          (4) permanent or protracted loss or impairment of the function of a bodily
                               member or organ; or
                          (5) loss of a fetus.

      Ind. Code § 35-31.5-2-292 (2012).
      3
       “Moderate bodily injury” is defined as “any impairment of physical condition that includes substantial
      pain.” Ind. Code § 35-31.5-2-204.5 (2014).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017             Page 2 of 8
      Poole kicked in Ferry’s door and battered Ferry until he was unconscious. The

      911 operator recorded the sounds of Poole’s entry, the battery, and the

      statements Poole was making during and after the incident. When police

      arrived, Poole was still in the house. Poole had blood on his shoe, and blood

      was splattered up the wall to the ceiling.


[3]   Ferry was on the floor and unresponsive. Ferry’s breathing was shallow, his

      head and face were covered in large amounts of blood, and “[h]is head was

      partially through the drywall.” (Tr. Vol. II at 20.) At the hospital, doctors

      determined Ferry suffered multiple facial fractures and the cartilage around his

      thyroid was broken. Ferry sustained multiple lacerations that needed stitches,

      remained unconscious for nearly a day, and was hospitalized for five days.


[4]   The State charged Poole with Level 2 felony burglary and Level 3 felony

      aggravated battery. 4 The court found Poole guilty of burglary and battery,

      merged the battery into the burglary, entered conviction on the burglary, and

      imposed a twenty-year sentence, with ten years suspended to probation.



                                     Discussion and Decision
[5]   Poole challenges the sufficiency of the evidence supporting his conviction. Our

      standard of review for such allegations is well-settled:




      4
          Ind. Code § 35-42-2-1.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017   Page 3 of 8
              When reviewing a claim of insufficient evidence, an appellate
              court considers only the evidence most favorable to the verdict
              and any reasonable inferences that may be drawn from that
              evidence. If a reasonable finder of fact could determine from the
              evidence that the defendant was guilty beyond a reasonable
              doubt, then we will uphold the verdict. We do not reweigh the
              evidence or judge the credibility of witnesses. These evaluations
              are for the trier of fact, not appellate courts. In essence, we assess
              only whether the verdict could be reached based on reasonable
              inferences that may be drawn from the evidence presented.


      Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (internal citations and quotations

      omitted).


[6]   The State charged Poole with Level 2 felony burglary. The statute defining

      burglary provides:

              A person who breaks and enters the building or structure of
              another person, with intent to commit a felony or theft in it,
              commits burglary, a Level 5 felony. However, the offense is:


                                                   *****


              (3) a Level 2 felony if it:


                       (A) is committed while armed with a deadly weapon; or


                       (B) results in serious bodily injury to any person other than
                       a defendant . . . .


      Ind. Code § 35-42-2-1 (2014). Poole acknowledges he broke and entered his

      Ferry’s residence, and he acknowledges his breaking and entering resulted in

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017   Page 4 of 8
      serious bodily injury to Ferry. The element he challenges is his “intent to

      commit a felony or theft in it.” Id. Poole argues: “there is no evidence that he

      had the intent to inflict serious bodily injury” when he entered his father’s

      house. (Br. of Appellant at 8.)


[7]   However, the State did not have an obligation to prove Poole had an intent to

      inflict serious bodily injury. The charging information alleges Poole

              did break and enter the building or structure of Ferry Poole, to-
              wit: his residence; with the intent to commit the felony of Battery
              therein, to-wit: by striking at and against the person of Ferry
              Poole with his hands and/or feet; said act resulting in serious
              bodily injury to Ferry Poole, to-wit: a fractured nose and/or a
              fracture to the neck and/or loss of consciousness to Ferry
              Poole[.]


      (Appellant’s App. Vol. 2 at 14.) Pursuant to that charge, the State had to prove

      Poole entered Ferry’s house “with the intent to commit the felony of Battery

      therein.” (Id.)


[8]   Battery, or the touching of “another person in a rude, insolent, or angry

      manner,” is defined by our legislature as a Class B misdemeanor. Ind. Code §

      35-42-2-1(c). The crime becomes a Class A misdemeanor if it “results in bodily

      injury to any other person[,]” Ind. Code § 35-42-2-1(d)(1), and it becomes a

      Level 6 felony if it “results in moderate bodily injury to any other person.” Ind.

      Code § 35-42-2-1(e)(1). Thus, to prove Poole intended to commit felony

      battery, the State had to prove that Poole entered his father’s house with the

      intent to inflict only “moderate bodily injury.” (See also Tr. Vol. II at 56 (State’s

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017   Page 5 of 8
       closing argument explained felony battery required only an intent to commit

       “level six, the battery with moderate bodily injury”).)


[9]    As our Indiana Supreme Court has noted: “Burglars rarely announce their

       intentions at the moment of entry.” Baker, 968 N.E.2d at 229 (quoting Gilliam

       v. State, 508 N.E.2d 1270, 271 (Ind. 1987)). Therefore, we must be able to infer

       the burglar’s intent to commit a specific felony from the circumstances

       surrounding the breaking and entering. Id. at 229-30. Circumstantial evidence

       alone is sufficient to permit an inference regarding a defendant’s intent, id. at

       230, 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. Generally, “one may infer the intent at the time of entry from the

       fact of subsequent commission of a felony.” Mull v. State, 770 N.E.2d 308, 313

       (Ind. 2002).


[10]   Ferry was talking to Poole in Poole’s car, which was parked in Ferry’s

       driveway. Poole got angry, and Ferry became afraid that Poole would hurt

       him, so Ferry ran into his house, locked the door, and called 911. Ferry

       reported to 911 that his son, Poole, was outside and that he was afraid Poole

       would hurt him. William Jewel, who lived across the street from Ferry, heard

       arguing and then saw a figure banging on Ferry’s front door with hands.

       Poole’s yelling and banging on the front door were captured in the 911

       recording. As the yelling escalated, Jewel saw the figure kick Ferry’s front door

       until the door jamb shattered and the door opened. When Poole entered the

       house, Ferry dropped the phone without hanging up from the 911 operator,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017   Page 6 of 8
       who continued recording the events that unfolded until after the police arrived

       on the scene.


[11]   As soon as he entered, Poole began punching and kicking his father until Ferry

       was unconscious. The entire time, Poole was screaming obscenities at Ferry.

       When police arrived, Ferry’s head was partially through the drywall, which had

       a head-sized bloody dent in it, and the electrical outlet next to Ferry’s head had

       been hit with such force that the cover had been knocked off. Poole’s right shoe

       had drywall dust and blood on the toe and on the side of the foot, and blood

       had been splattered up the wall all the way to the ceiling. Ferry had multiple

       lacerations that needed stitches, his face was fractured multiple times, and the

       cartilage around his thyroid was broken. Ferry did not regain consciousness

       until the next day, and he was required to spend five days in the hospital as a

       result of his injuries.


[12]   In light of the severity of the damage Poole did to Ferry immediately upon

       entering the residence and while screaming obscenities at Ferry, the only

       reasonable inference is that Poole entered the residence intending to cause

       Ferry, at the very least, “any impairment of physical condition that includes

       substantial pain.” Ind. Code § 35-31.5-2-204.5 (defining moderate bodily

       injury). Accordingly, the evidence supported the trial court’s conclusion Poole

       broke and entered Ferry’s residence with the intent to commit felony battery.

       See Ind. Code § 35-43-2-1 (2014) (defining felony battery). Poole does not

       challenge that he inflicted serious bodily injury on Ferry, and we therefore

       affirm his conviction of Level 2 felony burglary. See, e.g., Murray v. State, 761

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017   Page 7 of 8
       N.E.2d 406, 409 (Ind. 2002) (despite defendant’s testimony that he intended

       only to “fight” the victim and other testimony that the intruders intended only

       to “talk” to the victim, the fact-finder was entitled to infer defendant had intent

       to commit felony battery when, after entering house, defendant struck victim’s

       head with a baseball bat).


[13]   Affirmed.


       Brown, J., concurs. Pyle, J., concurs in result without separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-569 | August 9, 2017   Page 8 of 8
