MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        FILED
Memorandum Decision shall not be regarded as                  Mar 29 2017, 10:36 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,               CLERK
                                                               Indiana Supreme Court
collateral estoppel, or the law of the case.                      Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Richard Davis,                                          March 29, 2017

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A05-1607-CR-1607
        v.                                              Appeal from the St. Joseph Superior
                                                        Court.
                                                        The Honorable Jane Woodward
State of Indiana,                                       Miller, Judge.
Appellee-Plaintiff.                                     Trial Court Cause No. 71D01-1512-
                                                        F5-284




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017   Page 1 of 6
                                          Statement of the Case
                                                                                             1
[1]   Richard Davis appeals from his conviction of Level 5 felony burglary,

      contending that there is insufficient evidence to support his conviction. We

      affirm.


                                                    Issue
[2]   The sole issue presented in this appeal is whether there is sufficient evidence of

      intent to support Davis’ conviction of Level 5 felony burglary.


                                   Facts and Procedural History
[3]   On December 17, 2015, Danny Warner was alone at his home on 2526 Bonds

      Avenue in South Bend, Indiana, recuperating from a recent knee surgery. His

      girlfriend and her son, who both lived with him at that address, had left to do

      some shopping.


[4]   Warner had installed a motion activated security system in his detached garage

      because someone had broken into his garage during the summer. When

      activated, the security system only makes a beeping sound in the house, much

      like a smoke detector does.


[5]   On that day, Warner was in bed icing and elevating his knee when he heard the

      alarm system signal that something or someone was in his garage. He initially




      1
          Ind. Code § 35-43-2-1 (2013).


      Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017       Page 2 of 6
      thought it was a false alarm because previously he had issues with animals

      entering his garage through a broken window, setting off the alarm.

      Nonetheless, he went outside to investigate, not bothering to put on his knee

      brace or take his cell phone with him.


[6]   Once outside, Warner noticed that the door to his garage was ajar. The door

      should have been closed and locked. Warner, who had paused before

      investigating further, was startled when Davis rushed out of the garage and ran

      directly into him, knocking both of them to the ground. A struggle ensued.


[7]   Warner grabbed Davis and dragged him into his house. Davis escaped

      Warner’s grasp once inside, but Warner grabbed him and they struggled again.

      Warner kicked Davis’ legs out from underneath him and sat on him while

      calling 911 on his cell phone. Repeatedly, during the scuffle from the backyard

      to the house, Davis implored Warner to let him go, asked him if he had a god,

      and stated that he could not go back to jail.


[8]   While Warner was sitting on Davis, waiting for the police to arrive, Davis

      pulled out a screwdriver and tried to bring it up to the side of Warner’s body,

      attempting to stab him. Warner was able to grab Davis’ wrist and beat his hand

      on the floor until Davis was disarmed. The two remained there, with Warner

      sitting on Davis’ chest, until police officers arrived.


[9]   South Bend Police Department Officer Justin Gorny was dispatched to

      Warner’s house. Because the front door of Warner’s house was locked, Warner

      had to get up and take Davis with him to meet the officer. Warner described to

      Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017   Page 3 of 6
       Officer Gorny what had occurred and that Davis had entered Warner’s garage

       without his permission.


[10]   Warner went with the responding officers to his garage. They observed that the

       door casing and the lock had marks indicative of having been pried open.

       Those marks were not there prior to that incident. Inside the garage, they

       observed that a toolbox, a corded drill, and a refrigeration weight had been

       moved to a work bench closer to the garage door.


[11]   The State charged Davis with burglary as a Level 5 felony. After a jury trial, at

       which Davis proceeded pro se, the jury found him guilty as charged. The trial

       court sentenced Davis to a term of six years executed. Davis now appeals.


                                    Discussion and Decision
[12]   Davis contends that there is insufficient evidence that he broke and entered

       Warner’s garage and intended to commit a felony therein.


[13]   To establish beyond a reasonable doubt that Davis committed burglary, the

       State was required to prove that Davis broke and entered Davis’ garage with the

       intent to commit theft in it. See Ind. Code § 35-43-2-1.


[14]   When reviewing the sufficiency of the evidence, we consider only the evidence

       and reasonable inferences most favorable to the conviction, neither reweighing

       evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958

       (Ind. 2016). We will affirm the judgment unless no reasonable factfinder could

       find the defendant guilty. Id.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017   Page 4 of 6
[15]   “Burglars rarely announce their intentions at the moment of entry.” Gilliam v.

       State, 508 N.E.2d 1270, 1271 (Ind. 1987). “Intent to commit a given felony

       may be inferred from the circumstances, but some fact in evidence must point

       to an intent to commit a specific felony.” Justice v. State, 530 N.E.2d 295, 297

       (Ind. 1988). Furthermore, intent to commit a felony may not be inferred from

       proof of breaking and entering alone. Id. “The evidentiary inference pointing to

       the defendant’s intent must be separate from the inference of the defendant’s

       breaking and entering.” Baker v. State, 968 N.E.2d 227, 230 (Ind. 2012).


[16]   The evidence in this appeal shows that Warner was headed to investigate what

       might have triggered the security system in his garage when he observed that

       the garage door, which should have been closed and locked, was ajar. Warner

       froze for a moment upon seeing this. Davis then ran from the garage and

       collided with him, forcing both of them to the ground where a struggle ensued.


[17]   Warner grabbed Davis and brought him into his house where he could retrieve

       his cell phone to call 911. The two scuffled again, but Warner prevailed, sitting

       on Davis’ chest while placing the call. Davis pulled out a screwdriver and

       attempted to strike Warner in the side with it. Warner, however, was able to

       disarm Davis until the police arrived. During the scuffle, Davis pleaded with

       Warner to let him go, asked if he had a god, and stated he did not want to

       return to jail.


[18]   After the police arrived, Warner walked to the garage with the responding

       officers. They observed marks on the garage door casing and lock area that


       Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017   Page 5 of 6
       were not there before the incident. They also observed that a toolbox, a corded

       drill, and a refrigeration weight had been moved to a work bench closer to the

       garage door. Warner told the officers that despite the disarray in his garage, he

       knew that these items had been moved. The refrigeration weight was unique

       and of particular value such that it would never have been left in such a

       precarious position. This circumstantial evidence is sufficient to establish

       Davis’ intent to steal those items.


[19]   To the extent Davis points to inconsistencies between the information Warner

       provided to police officers during the 911 call and initial statements, and his

       testimony at trial, that argument is an invitation to reweigh the evidence. Our

       standard of review does not allow us to engage in such an evaluation. Griffith,

       59 N.E.3d at 958. The evidence is sufficient to support Davis’ conviction.


                                                Conclusion
[20]   In light of the foregoing, we affirm the trial court’s decision.


[21]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1607-CR-1607| March 29, 2017   Page 6 of 6
