MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Sep 30 2015, 8:46 am
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
Jeffrey E. Stratman                                      Gregory F. Zoeller
Aurora, Indiana                                          Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patrick C. Garvey,                                       September 30, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A04-1503-CR-93
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff                                       Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1210-FB-56



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-93 | September 30, 2015   Page 1 of 5
                                            Case Summary
[1]   Patrick C. Garvey challenges the sufficiency of the evidence supporting his class

      B felony burglary conviction. Specifically, he asserts that the State failed to

      establish that he intended to commit theft inside the victim’s dwelling and asks

      that we reverse his burglary conviction and order modification to class D felony

      residential entry. Finding the evidence sufficient to support the jury’s

      determination that he intended to commit the felony of theft inside the

      dwelling, we affirm his conviction.


                              Facts and Procedural History
[2]   On October 8, 2012, Daniel Blackaby and his brother Mark Blackaby pulled

      into their driveway and noticed a strange vehicle parked in front of their uncle’s

      driveway nearby. They knew that their uncle was in Kentucky for the day, so

      they drove over to investigate. They pulled in directly behind the suspicious

      vehicle, and Daniel walked behind the house to the garage and observed that

      his uncle’s truck was not there. When he turned to face the house, he noticed

      that the glass in the back door had been shattered. He saw a tall man, later

      identified as Garvey, walking quickly toward the driveway. The brothers

      attempted to prevent Garvey from leaving, but he got in his vehicle and sped

      around the house and away from the property.


[3]   The brothers noted Garvey’s license plate number and called the police.

      Investigators found large rocks and shattered glass on the floor by the broken

      back door. They discovered the bedroom dresser drawers in disarray, with

      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-93 | September 30, 2015   Page 2 of 5
      clothing items on the floor and protruding from half-opened drawers. They also

      found the bed sheets rumpled and thrown back. They discovered blood on an

      item inside one of the drawers and on a tax document sticking out of another

      drawer. The victim later determined that no property had been taken.


[4]   Each of the brothers separately identified Garvey from a photographic array,

      and DNA testing showed that the blood found at the crime scene was Garvey’s.

      The victim did not know Garvey and did not give him permission to enter his

      home.


[5]   The State charged Garvey with class B felony burglary, and a jury found him

      guilty as charged. He now appeals. Additional facts will be provided as

      necessary.


                                  Discussion and Decision
[6]   Garvey maintains that the evidence is insufficient to support his conviction.

      When reviewing a challenge to the sufficiency of evidence, we neither reweigh

      evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). Rather, we consider only the evidence and reasonable inferences most

      favorable to the verdict and will affirm the conviction “unless no reasonable

      fact-finder could find the elements of the crime proven beyond a reasonable

      doubt.” Id. It is therefore not necessary that the evidence “overcome every

      reasonable hypothesis of innocence.” Id. (citation omitted).


[7]   Pursuant to Indiana Code Section 35-43-2-1(1)(B)(i) (1999), the State alleged

      that Garvey committed class B felony burglary by breaking and entering the
      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-93 | September 30, 2015   Page 3 of 5
      victim’s dwelling with intent to commit the felony of theft in it. Garvey admits

      that he broke and entered the victim’s home but submits that the evidence is

      insufficient to establish that he intended to commit theft once inside.


[8]   In the factually similar case of Baker v. State, the defendant challenged the

      sufficiency of evidence to establish his intent to commit the felony of theft in

      conjunction with his breaking and entering a church. 968 N.E.2d 227, 228

      (Ind. 2012). In affirming Baker’s burglary conviction, our supreme court noted

      that although it appeared that nothing had actually been removed from the

      church, his bloodstains on the outside of cupboards and drawers left ajar

      indicated that he had been present in the kitchen and had opened several

      drawers and cupboards. Id. Concerning the importance of circumstantial

      evidence in establishing reasonable inferences of felonious intent, the Baker

      court reasoned,

              Burglars rarely announce their intentions at the moment of entry,
              and indeed many times there is no one around to hear them even
              if they were to do so. Hence, a burglar’s intent to commit a
              specific felony at the time of the breaking and entering may be
              inferred from the circumstances …. 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. The evidentiary
              inference pointing to the defendant’s intent must be separate from
              the inference of the defendant’s breaking and entering …. In other
              words, the evidence must support each inference—felonious
              intent and breaking and entering—independently, and neither
              inference should rely on the other for support.



      Court of Appeals of Indiana | Memorandum Decision 15A04-1503-CR-93 | September 30, 2015   Page 4 of 5
       968 N.E.2d at 229-30 (citations and internal quotation marks omitted). The

       Baker court concluded that the defendant’s “act of opening the drawers and

       cabinets alone was enough to support an inference of intent to commit theft.

       Evidence of rummaging would simply bolster the already reasonable inference

       of intent.” Id. at 231.


[9]    Here, the photographic exhibits show open dresser drawers with items spilling

       out and items on the floor. They show Garvey’s blood on at least one item

       inside a drawer and on a tax document protruding from another drawer. They

       also show bed sheets rumpled and thrown back. This evidence indicates that

       Garvey not only opened up the drawers but also rifled through them as well as

       through the bedding. Based on the foregoing, we conclude that the evidence is

       sufficient to support a reasonable inference that Garvey, having broken and

       entered the victim’s dwelling by shattering a glass door, ransacked the bedroom

       searching for items to steal. The fact that he left emptyhanded does not vitiate

       his felonious intent. Consequently, we affirm.


[10]   Affirmed.


       May, J., and Bradford, J., concur.




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