MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    FILED
regarded as precedent or cited before any                       Feb 28 2017, 8:50 am

court except for the purpose of establishing                        CLERK
                                                                Indiana Supreme Court
the defense of res judicata, collateral                            Court of Appeals
                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Milton D. Horton,                                        February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1606-CR-1445
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen Marchal,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G15-1602-CM-4599



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1445 | February 28, 2017   Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Milton D. Horton (Horton), appeals his conviction for

      battery resulting in bodily injury, a Class A misdemeanor, Ind. Code § 35-42-2-

      1(b)(1); disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(2);

      residential entry, a Level 6 felony, I.C. § 35-43-2-1.5; and his adjudication as an

      habitual offender, I.C. § 35-50-2-8(a).


[2]   We affirm.


                                                    ISSUE
[3]   Horton presents us with one issue on appeal, which we restate as: Whether the

      State presented sufficient evidence beyond a reasonable doubt to sustain his

      conviction for residential entry, a Level 6 felony.


                      FACTS AND PROCEDURAL HISTORY
[4]   On January 4, 2016, Keith Carter (Carter) moved into his apartment at 2120

      Boulevard in Indianapolis, Indiana. While moving in, Carter met Horton who

      helped him move a mattress. On February 3, 2016, Carter was asleep in his

      apartment when he was woken up by the doorbell and by knocking on the door.

      When he “cracked open” the door, Horton asked to be let in. (Transcript p.

      28). Carter told him that he was asleep and to “come back later.” (Tr. p. 28).

      Because Horton entered the apartment “a little bit,” Carter told him to “get

      out.” (Tr. p. 29). Horton eventually left and Carter shut the door and locked it.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1445 | February 28, 2017   Page 2 of 6
[5]   A little later, Horton returned and started kicking Carter’s door. Carter opened

      the door a second time because he “didn’t want it tore up.” (Tr. p. 29). Carter

      asked Horton to leave; however, Horton “smacked” him on the side of his face,

      causing him pain. (Tr. p. 29). Carter was “scared;” and tried “to get him out of

      [his] apartment.” (Tr. pp. 29, 34). Horton was “far enough [in the apartment]

      that [Carter] couldn’t close the door.” (Tr. p. 37). He grabbed a yardstick and

      started “smacking until [Horton] got out and then locked the door.” (Tr. p. 30).

      Carter called the police.


[6]   Indianapolis Metropolitan Police Department officers Scott Godby (Officer

      Godby) and Angelika Adams-Matuszczyk (Officer Adams) responded to

      Carter’s call. When the officers arrived, they found Horton outside in the

      hallway, “being somewhat belligerent [and] loud.” (Tr. p. 58). Horton was

      initially cooperative with Officer Adams’ requests, but “[h]is behavior was

      consistent with being somewhat intoxicated” and he was “a little unstable.”

      (Tr. p. 64). However, once Horton had been escorted outside the building, he

      started to make “very rude and very vulgar” comments about Officer Adams.

      (Tr. p. 65). Officer Godby located a “black scuff mark,” resembling “the

      bottom of a dirty shoe,” on “the lower third” of Carter’s door, which the officer

      noted was consistent with someone kicking a door. (Tr. pp. 60, 61, 62).


[7]   On February 4, 2016, the State filed an Information, charging Horton with

      battery resulting in bodily injury, a Class A misdemeanor, and disorderly

      conduct, a Class B misdemeanor. On February 9, 2016, the State amended the

      Information, adding a charge of residential entry, a Level 6 felony. On April 7,

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1445 | February 28, 2017   Page 3 of 6
       2016, the State filed an habitual offender enhancement. On April 13, 2016, the

       trial court conducted a bifurcated jury trial. At the close of the evidence, the

       jury found Horton guilty of battery resulting in bodily injury, disorderly

       conduct, and residential entry. Horton subsequently admitted to being an

       habitual offender. On June 3, 2016, the trial court sentenced Horton to 910

       days for residential entry enhanced by 730 days for the habitual offender

       adjudication, 365 days for battery resulting in bodily injury, and 180 days for

       disorderly conduct, with sentences to run concurrently.


[8]    Horton now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[9]    Horton contends that the State failed to present sufficient evidence beyond a

       reasonable doubt to convict him of residential entry, a Level 6 felony. When

       considering whether the evidence is sufficient to support a conviction, we

       neither reassess witness credibility nor reweigh the evidence, as those tasks are

       reserved for the fact-finder. West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App.

       2014), trans. denied. Rather, we consider only the evidence most favorable to

       the conviction, and we will affirm unless no reasonable fact-finder could find

       the elements of the crime proven beyond a reasonable doubt. Id.


[10]   To convict Horton of residential entry, a Level 6 felony, the State was required

       to establish that Horton “knowingly or intentionally [broke] and [entered] the

       dwelling of [Carter].” I.C. § 35-43-2-1.5. Focusing on the breaking and

       entering element of the charge, Horton claims that “there was no showing that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1445 | February 28, 2017   Page 4 of 6
       [he] was denied entry.” (Appellant’s Br. p. 9). Similarly, he maintains that

       “there is no evidence that [he] used force, however slight, to gain entrance into

       Carter’s apartment.” (Appellant’s Br. p. 11).


[11]   “In Indiana, any breach of the threshold, however slight, by any part of the

       body constitutes criminal residential entry.” Cupello v. State, 27 N.E.3d 1122,

       1130 (Ind. Ct. App. 2015). Likewise, “[t]he use of the slightest force to gain

       entry establishes the breaking element of this offense.” Davis v. State, 770

       N.E.2d 319, 322 (Ind. 2002), reh’g denied. The opening of an unlocked door is

       sufficient. Young v. State, 846 N.E.2d 1060, 1063 (Ind. Ct. App. 2006).


[12]   “Lack of consent is not an element of the offense the State is required to prove.”

       McKinney v. State, 653 N.E.2d 115, 115 (Ind. Ct. App. 1995). “Rather, it is the

       defendant who must claim and prove the defense of consent.” Id. “A

       defendant’s belief that he has permission to enter must be reasonable in order

       for the defendant to avail himself of the defense of consent.” Id.


[13]   Here, Horton did not have consent to enter Carter’s residence. The evidence

       reflects that, during the second encounter, Horton kicked Carter’s door, leaving

       black scuff marks on the lower part of the door. After Carter opened the door,

       Horton entered the apartment far enough that Carter “couldn’t close the door.”

       (Tr. p. 37). He smacked Carter on the side of his face. Carter tried to get him

       out of his apartment and testified that he grabbed a yardstick and started

       “smacking until [Horton] got out” and then locked the door. (Tr. p. 30).

       Accordingly, based on these circumstances, we find that Horton used force to


       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1445 | February 28, 2017   Page 5 of 6
       breach the threshold and to gain entry into Carter’s residence without Carter’s

       consent.


                                             CONCLUSION
[14]   Based on the foregoing, we hold that the State presented sufficient evidence

       beyond a reasonable doubt to sustain Horton’s conviction for residential entry.


[15]   Affirmed.


[16]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1445 | February 28, 2017   Page 6 of 6
