MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Mar 21 2017, 8:26 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
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estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Troy D. Warner                                           Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
South Bend, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sanchez Dupree Martin,                                   March 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1611-CR-2674
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1605-F5-95



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2674 | March 21, 2017         Page 1 of 7
                                          Case Summary
[1]   After a bench trial, Sanchez Dupree Martin (“Martin”) was convicted of

      Burglary, as a Level 5 felony,1 and was sentenced to six years imprisonment.

      He now appeals, raising for our review the sole question of whether there was

      sufficient evidence to sustain the conviction.


[2]   We affirm.



                                   Facts and Procedural History
[3]   In March 2016, Martin and another man introduced themselves to Joseph

      Adams (“Adams”), a digital artist who was working with a South Bend-based

      organization, Project Impact. Adams was renovating space that Hardy Blake

      (“Blake”), Project Impact’s director and the building’s owner, had been using

      for storage. Adams planned to convert the space to use for his work in digital

      art and to provide training to others in how to work in that field. Adams was

      painting, and Martin and his companion asked if they could do some work for

      Adams. Adams agreed and paid the men $50 each. Martin worked for a

      period of time, but eventually left.


[4]   A few days later, Adams encountered Martin again, and Martin again offered

      to do some work for Adams. Adams asked Martin to pass out flyers advertising




      1
          Ind. Code § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2674 | March 21, 2017   Page 2 of 7
      Adams’s business at a car show. Adams also gave Martin a tablet computer to

      use for the task, because some of Adams’s artwork and videography was visible

      on the tablet. Adams asked Martin to take care of the tablet and return it as

      soon as he was done with it. Martin took the flyers and the tablet, but did not

      return.


[5]   A few days after that, on March 21, 2016, Adams had finished working on his

      space at Project Impact for the evening. Around midnight, Adams locked the

      door and returned to his residence in Benton Harbor, Michigan. At around

      four in the morning on the following day, March 22, 2016, the burglar alarm

      was activated at Project Impact.


[6]   When police responded, no one was present, but glass next to the building’s

      door had been broken and the door was unlocked. The window that had been

      broken had a hole in the glass large enough for a person to reach an arm

      through to open the door. Police investigation revealed that there was blood on

      a portion of the broken glass, and there were several drops of blood on the floor.


[7]   Police notified Blake of the break-in, and Blake in turn notified Adams. Adams

      left his home at around 4:30 a.m. and arrived at the scene some time later.

      Adams determined that one of his computers was missing.


[8]   Later that morning, Adams received a phone call from Martin asking about

      what had happened. Adams indicated that he was too upset to talk about the

      day’s events.



      Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2674 | March 21, 2017   Page 3 of 7
[9]    Subsequent investigation identified Martin as a suspect, and DNA testing

       confirmed that Martin’s blood was on the broken glass. Adams later identified

       Martin from a line-up at the South Bend Police Department.


[10]   On May 25, 2016, the State charged Martin with Burglary, as a Level 5 felony.


[11]   A bench trial was conducted on August 8, 2016, at the conclusion of which the

       trial court took the matter under advisement.


[12]   On August 12, 2016, the court found Martin guilty as charged and entered a

       judgment of conviction against him. A sentencing hearing was conducted on

       September 9, 2016, at the conclusion of which the court sentenced Martin to six

       years imprisonment.


[13]   This appeal ensued.



                                 Discussion and Decision
[14]   Martin challenges the sufficiency of the evidence supporting his conviction.

       Our standard of review for such challenges is well settled:

               This court will not reweigh the evidence or assess the credibility
               of witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App.
               2002). Only the evidence most favorable to the judgment,
               together with all reasonable inferences that can be drawn
               therefrom will be considered. Id. If a reasonable trier of fact
               could have found the defendant guilty based on the probative
               evidence and reasonable inferences drawn therefrom, then a
               conviction will be affirmed. Id. at 1028–29.



       Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2674 | March 21, 2017   Page 4 of 7
       Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).


[15]   The State charged Martin with Burglary, as a Level 5 felony. To convict

       Martin as charged, the State was required to prove beyond a reasonable doubt

       that Martin knowingly broke into and entered the building of Project Impact,

       with the intent to commit theft therein. See I.C. § 35-43-2-1; App’x Vol. 2 at 4.


[16]   Martin contends that the State proved no more than that Martin “was in the

       wrong place at the right time” (Appellant’s Br. at 11), and that there was

       insufficient evidence of intent to commit theft. With respect to the first of these,

       Indiana courts have reversed convictions for burglary when a defendant was “in

       the ‘right place at the wrong time,’” particularly when the evidence at trial

       establishes nothing more than opportunity to commit the charged offense.

       McMahel v. State, 609 N.E.2d 1175, 1177 (Ind. Ct. App. 1993). Martin likens

       his case to these prior cases.


[17]   We disagree with Martin’s characterization of the evidence. The evidence in

       this case that favors the judgment is that Martin was familiar with the premises

       of Project Impact and was aware of the items inside it. In the early morning

       hours of March 22, 2016, a burglar alarm was activated, a door Adams testified

       he had locked was opened, and a computer was taken. A window next to the

       building’s door had been broken, and the hole in the glass was large enough for

       a person’s arm to reach through and unlock and open the door from the inside.

       The glass around the hole had blood on it. That blood was tested, and the

       DNA results indicated that only one in seven trillion persons could carry that


       Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2674 | March 21, 2017   Page 5 of 7
       DNA—in other words, the DNA results statistically excluded every person

       except Martin. The trial court could reasonably infer that Martin broke the

       glass, reached his arm through the glass, opened the door, and entered the

       building. That Martin testified at trial that he was present at the scene to

       investigate what happened did not require that the trial court accept his

       testimony as true, and we decline Martin’s invitation to reweigh the evidence in

       this respect.2


[18]   Martin also argues that there was insufficient evidence of intent to commit

       theft. “To establish the intent to commit a felony element of a burglary charge,

       the State must prove beyond a reasonable doubt the defendant’s intent to

       commit a felony specified in the charge.” Freshwater v. State, 853 N.E.2d 941,

       942 (Ind. 2006). Evidence of breaking and entering is not probative unless tied

       to some other evidence which is strongly corroborative of the actor’s intent. Id.

       (citations omitted).


[19]   Here, Martin contends the State did not provide sufficient evidence to establish

       the intent to commit theft—indeed, Martin insists “[t]here is no evidence that

       Martin intended to commit a theft.” (Appellant’s Br. at 11.) We again disagree

       with Martin’s argument. Notably, Adams testified that a computer that cost




       2
        We note in this regard that the statement of facts in Martin’s brief presents the evidence that favors Martin’s
       account of events on March 22, 2016, not those that favor the judgment as required by our Appellate Rules,
       and we remind counsel of this requirement. See Ind. Appellate Rule 46(A)(6)(b) (providing that “[t]he facts
       shall be stated in accordance with the standard of review appropriate to the judgment or order being
       appealed”).

       Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2674 | March 21, 2017                Page 6 of 7
       him around $2000, with that value exclusive of software and copies of much of

       his digital artwork, was taken during the burglary. The trial court was entitled

       to conclude that the apparent commission of theft at the same time as the

       occurrence of a break-in was sufficient to establish the intent element of the

       Burglary charge. We accordingly conclude that there was sufficient evidence to

       sustain the conviction.


[20]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2674 | March 21, 2017   Page 7 of 7
