                                                                            FILED
MEMORANDUM DECISION                                                    Apr 19 2016, 7:57 am

Pursuant to Ind. Appellate Rule 65(D),                                      CLERK
                                                                        Indiana Supreme Court
this Memorandum Decision shall not be                                      Court of Appeals
                                                                             and Tax Court

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
Michael G. Moore                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Audrico Berry,                                           April 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1509-CR-1355
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1503-F6-8630



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016           Page 1 of 5
[1]   Audrico Berry appeals his conviction for Residential Entry,1 a Level 6 felony.

      Berry argues that there was insufficient evidence presented to support his

      conviction. Finding sufficient evidence, we affirm.


                                                     Facts
[2]   In 2013, Berry and Jamika Walker ended their relationship, but continued to

      co-parent their daughter, A.W. Walker and A.W. moved to a new apartment,

      and Walker gave Berry a key to the apartment. On March 6, 2015, Berry was

      scheduled to pick up his child, but he arrived earlier than Walker had expected.

      Walker had a male friend, Anthony Kimmons, in her apartment at the time.

      Berry knocked on the door, and Walker went to the balcony and told Berry that

      he could not come into her apartment. While Berry was returning to his

      vehicle, Kimmons went on to Walker’s balcony and said “yeah, you can’t come

      here”. Berry became upset and approached the front door. Kimmons

      proceeded to the front door to prevent Berry from coming inside, while Walker

      locked herself and A.W. in the bathroom. Berry entered the apartment after he

      damaged the front door’s sill plate and destroyed the frame, then he engaged in

      a scuffle with Kimmons. Berry went to the bathroom and yelled at Walker to

      unlock the bathroom door. Berry punched the door, leaving a hole in it. He

      then went to his car to retrieve his car keys. Walker ran with A.W. into the

      bedroom and locked herself and A.W. in the bedroom closet. Berry re-entered




      1
          Ind. Code § 35-43-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016   Page 2 of 5
      the apartment, broke the closet door, and damaged the door frame. Walker

      called the police, but Berry left before officers responded to the scene.


[3]   On March 19, 2015, the State charged Berry with residential entry as a Level 6

      felony, battery as a Level 6 felony, and battery as a Class B misdemeanor. On

      August 11, 2015, a bench trial was held. The trial court found Berry guilty of

      Level 6 felony residential entry but not guilty of the other charges. On the same

      day, Berry was sentenced to 365 days, with 357 days suspended to probation.

      Berry now appeals.


                                   Discussion and Decision
[4]   Berry has one argument on appeal: that there was insufficient evidence

      presented to support his conviction. In reviewing a challenge to the sufficiency

      of the evidence, this Court does not reweigh the evidence or judge the

      credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

      This Court will affirm a conviction “if probative evidence and reasonable

      inferences drawn from the evidence could have allowed a reasonable trier of

      fact to find the defendant guilty beyond a reasonable doubt.” Id.


[5]   To convict Berry of Level 6 felony residential entry, the State had the burden to

      prove beyond a reasonable doubt that he: (1) knowingly or intentionally, (2)

      broke and entered, (3) the dwelling of Jamika Walker. I.C. § 35-43-2-1.5. On

      appeal, Berry does not contest that he knowingly or intentionally broke and

      entered Walker’s apartment. Instead, he argues that he had Walker’s consent

      to enter her residence.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016   Page 3 of 5
[6]   Lack of consent is not an element of residential entry that the State has to

      prove. Holman v. State, 816 N.E. 2d 78, 81 (Ind. Ct. App. 2004). Instead, it is

      the defendant’s burden to claim and prove consent as a defense. McKinney v.

      State, 653 N.W.2d 115, 118 (Ind. Ct. App. 1995). A defendant’s belief that he

      has permission to enter a residence must be reasonable in order for him to avail

      himself of the defense of consent. Id. Once a defendant successfully raises the

      defense of consent, the State has the burden of disproving the defense beyond a

      reasonable doubt. Holman, 816 N.E.2d at 81. In this case, Berry’s argument at

      trial focused on disproving the element of breaking and entering rather than on

      the defense of consent. Berry concedes that he did “not explicitly” raise the

      defense of consent at trial. Appellant’s Br.p.7. It is well-settled that a party

      cannot argue on appeal an issue which was not properly presented to the trial

      court. Franklin Bank and Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind.1990).


[7]   Even if Berry had raised the defense of consent, the record contains more than

      enough evidence to support the factfinder’s determination that he did not

      reasonably believe that he had consent to enter. Walker testified that she told

      Berry that he could not enter the apartment when he arrived early to pick up

      A.W. It is evident that Berry knew he did not have consent to enter the

      apartment because he had initially knocked on the door and then returned to

      his vehicle after he was denied entry. If Berry reasonably believed he had

      consent to enter the apartment, he would not have demanded that Walker open

      the door for him or break down the door in order to enter. Under these

      circumstances, a reasonable factfinder could easily have concluded that Berry


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016   Page 4 of 5
      did not have a reasonable belief that Walker had consented to his entry into the

      apartment.


[8]   Berry argues that his possession of a key proves that he had consent to enter the

      apartment. The record reveals that Walker gave Berry a key to the apartment

      for the limited purpose of exchanging A.W. with Walker. At the time Berry

      broke into the apartment, he was not entering for the purpose of picking up

      A.W. Instead, he forced open the door because he was upset that Kimmons

      was in the apartment, he aggressively confronted Walker multiple times, and he

      left the apartment without the child before the police arrived. This evidence is

      sufficient to support Berry’s conviction.


[9]   The judgment of the trial court is affirmed.


      May, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016   Page 5 of 5
