MEMORANDUM DECISION
                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                     Jun 24 2016, 8:41 am

this Memorandum Decision shall not be                           CLERK
                                                            Indiana Supreme Court
regarded as precedent or cited before any                      Court of Appeals
                                                                 and Tax Court
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
Jerry T. Drook                                           Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana

                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Arturo Martinez, Jr.,                                    June 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1511-CR-1981
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Warren Haas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D03-1406-FD-244
                                                         27D03-1504-F6-133



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016   Page 1 of 6
[1]   Arturo Martinez, Jr. appeals his conviction after a jury trial of Level 6 felony

      attempted residential entry. 1 He argues the evidence was insufficient to support

      his conviction because the State did not prove he acted with the requisite intent

      or took a substantial step toward commission of the crime. Because the

      evidence was sufficient for the jury to find Martinez guilty beyond a reasonable

      doubt, we affirm.



                                Facts and Procedural History
[2]   On April 9, 2015, Amber Meeks lived close to a building where Martinez had

      been living for about a month. Sometime in the early evening, Meeks,

      Martinez, and their mutual acquaintance, Michael Shrout, chatted briefly.

      Meeks and Shrout then left to retrieve Meeks’ vehicle.


[3]   About thirty minutes later, Meeks and Shrout returned together in Meeks’

      vehicle. As they turned into the alley, the vehicle’s headlights pointed directly

      at Meek’s front door. Meeks and Shrout saw Martinez at her door on his knees

      holding a flashlight in one hand and some object in the other. Meeks described

      the object in his hand as a screwdriver, while Shrout was not able to identify it.

      Meeks shouted at Martinez and asked him what he was doing. He turned to

      face them and, without responding, ran to his apartment. Meeks and Shrout




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


      Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016   Page 2 of 6
      both noticed fresh damage to the door, and Meeks called 911 to report a

      burglary.


[4]   Officer Humberto Antonio Arauz responded to the call. Officer Arauz also

      noticed the damage to Meeks’ door and agreed that it looked as if someone

      tried to pry the door open. Officer Arauz and another officer banged on

      Martinez’s door and windows, but Martinez did not answer the door.

      Approximately twenty minutes later, Martinez exited his residence and

      explained to Officer Arauz that he took his trash out around 12:19 a.m. and

      heard Meeks yell, but thought that she was arguing with Shrout, so he went

      back inside.


[5]   The State charged Martinez with Level 6 felony attempted residential entry.

      After a jury found him guilty, the trial court entered a judgment of conviction.



                                 Discussion and Decision
[6]   When reviewing sufficiency of the evidence in support of a conviction, we

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      verdict comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the jury. Id.


              We do not assess witness credibility, nor do we reweigh the
              evidence to determine if it was sufficient to support a conviction.
              Under our appellate system, those roles are reserved for the
              finder of fact . . . . [We] affirm the conviction unless no

      Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016   Page 3 of 6
              reasonable fact-finder could find the elements of the crime proven
              beyond a reasonable doubt. This evidence need not overcome
              every reasonable hypothesis of innocence; it is sufficient so long
              as an inference may reasonably be drawn from it to support the
              verdict.


      Pillow v. State, 986 N.E.2d 343, 344-45 (Ind. Ct. App. 2013) (internal citations

      and quotations omitted).


[7]   The elements of Level 6 felony attempted residential entry are met when a

      person knowingly or intentionally performs a substantial step toward breaking

      and entering the dwelling of another. Ind. Code § 35-41-5-1 (attempt); Ind.

      Code § 35-43-2-1.5 (residential entry). A substantial step is any overt act

      beyond mere preparation and in furtherance of an intent to commit the crime.

      Williams v. State, 685 N.E.2d 730, 734 (Ind. Ct. App. 1997). To show a

      breaking occurred, the State need only introduce evidence that the slightest

      force was used, which could even be pushing open a slightly ajar door. Jenkins

      v. State, 34 N.E.3d 258, 261 (Ind. Ct. App. 2015), trans. denied.


[8]   Martinez argues the evidence was insufficient for two reasons. First, he

      contends there was a lack of evidence he intended to break and enter Meeks’

      house. Second, he claims his actions were not a substantial step. In support

      thereof, he notes no tool was conclusively identified, and Meeks and Shrout did

      not see him prying on the door. He contends his presence near Meeks’ door,

      without more, is not enough to prove the elements of attempted residential

      entry beyond a reasonable doubt. While true, there is more.



      Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016   Page 4 of 6
[9]    The facts most favorable to the judgment show that Martinez knew Meeks and

       Shrout would be gone. Meeks and Shrout both saw Martinez directly in front

       of Meeks’ door on his knees with a flashlight and some other object in his hand.

       Martinez “took off running” back to his apartment when Meeks yelled at him.

       (Tr. 38). There was fresh damage to the door as if someone had tried to pry it

       open.


[10]   The evidence is not insufficient simply because the object in Martinez’s hand

       was not conclusively identified. See Word v. State, 261 N.E.2d 225, 227 (Ind.

       1970) (sufficient evidence to establish a breaking where a screwdriver was used

       to gain entry to a car leaving pry marks on the door, even though no eyewitness

       conclusively identified the object, proved the pry marks were made when Word

       entered, or proved the screwdriver belonged to him). Nor is the evidence

       insufficient simply because they did not see him prying, when he had a tool and

       left pry marks on the door. See Jenkins, 34 N.E.3d at 261 (pushing open a

       slightly ajar door is breaking). Rather, from the evidence presented, the jury

       could reasonably infer Martinez knowingly or intentionally performed the

       substantial step of prying on the door for the purpose of breaking and entering

       into Meeks’ dwelling. See Peak v. State, 520 N.E.2d 465, 467-68 (Ind. Ct. App.

       1988) (sufficient evidence supported attempt to break and enter where Peak was

       unsuccessful in kicking down door and fled after seeing police). Martinez’s

       arguments are an invitation to reweigh the evidence, which we cannot do. See

       Pillow, 986 N.E.2d at 344-45.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016   Page 5 of 6
                                               Conclusion
[11]   Sufficient evidence supported Martinez’s conviction of Level 6 felony attempted

       residential entry. Accordingly, we affirm.


[12]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016   Page 6 of 6
