MEMORANDUM DECISION
                                                                    Oct 08 2015, 8:46 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Patricia Caress McMath                                    Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Katherine Modesitt Cooper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Cortez Boxley,                                           October 8, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1503-CR-171
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Virginia Caudill,
State of Indiana,                                        Judge Pro Tempore.
Appellee-Plaintiff.                                      Cause No. 49F18-1411-F6-50410




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015      Page 1 of 7
                                           Statement of the Case
[1]   Cortez Boxley appeals from his conviction after a bench trial of one count of
                                             1
      attempted residential entry charged as a Level 6 felony. We reverse and

      remand for a new trial.


                                                           Issue
[2]   Boxley presents the following dispositive issue for our review: whether the trial

      court erred by failing to consider Boxley’s mistake-of-fact defense believing that

      residential entry was a strict liability offense for which there is no specific intent

      required.


                                   Facts and Procedural History
[3]   On November 5, 2014, at approximately 6:00 p.m., Laura Peak and her ten-

      year-old daughter were inside the living room of their townhouse in the

      Churchill Ranch Apartment complex in Marion County. They heard someone

      jiggling the doorknob in an attempt to enter the front door. Peak opened the

      front door because she guessed there might be children playing outside her

      door. However, when she opened the front door, she encountered Boxley, a

      man she did not know.


[4]   When Boxley placed his foot inside Peak’s doorway, she yelled at him, asked

      him what he was doing, pushed him out of the doorway, and closed and locked



      1
          Ind. Code § 35-43-2-1.5 (2013) (residential entry); Ind. Code § 35-41-5-1 (2014) (attempt).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015             Page 2 of 7
      the front door. Peak immediately dialed 911. Boxley remained outside Peak’s

      door jiggling the doorknob while Peak and her daughter retreated upstairs.

      Peak was frightened by Boxley’s actions, called 911 a second time, and asked

      the police officers to hurry.


[5]   Officer John Clark of the Lawrence Police Department responded to the

      dispatch and observed Boxley, who was bent over at Peak’s door “trying to

      mess with the door handle.” Tr. p. 28. Officer Clark ordered Boxley to step

      away from the door, but Boxley did not respond to that command. Officer

      Clark thought he observed Boxley attempt to insert a key into the lock of the

      front door. Officer Clark informed Boxley several times that if he did not step

      away from the front door, the officer would use a taser. Officer Clark repeated

      his command several more times to no avail. Instead, Boxley continued to try

      to get in the front door. In the end, Officer Clark used his taser thereby

      allowing another officer to handcuff Boxley. Officer Clark observed that

      Boxley seemed “completely out of it” and “appeared to be on something.” Id.

      at 32. Officer Clark called the medics for assistance.


[6]   As a result of those events, the State charged Boxley with attempted residential

      entry. The charging information stated as follows:


              On or about November 5, 2014, [Boxley] did attempt to commit
              the crime of Residential Entry, by engaging in conduct which
              constitutes a substantial step toward the commission of said
              crime of Residential Entry, that is: pushed the door open and
              attempted to push his way past Laura Peak when she cracked the
              door open.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015   Page 3 of 7
      Appellant’s Appendix p. 15. At trial, Boxley testified that his sister lived in a

      townhouse in the same apartment complex. He had a key to her townhouse

      which he had been to multiple times. Boxley testified that earlier on that date

      he had smoked a cigarette that contained embalming fluid and “hit the drink

      one time, a couple of times.” Tr. pp. 35-36. He claimed that the only thing he

      could remember was bending down to the door with the key. He did not recall

      talking to Peak and stated he “was at the wrong address, the wrong door.” Id.

      at 38.


[7]   During closing argument, Boxley’s counsel argued that Boxley was “in a

      blackout state” and did not see Peak or anything else when she opened the

      door. Id. at 42. While conceding that intoxication was not a valid defense to

      the charged crime, Boxley’s counsel argued as follows:

               I do believe that [Boxley’s] intoxication led him to make a
               mistake about where he was. [Boxley] did not intend to enter
               Ms. Peak’s address. He was intending to go to his sister’s house
               who [sic] lived in a townhouse in the same apartment complex.
               Anybody who has ever been to an apartment complex knows
               that everything looks the same. And if you are in some state of
               intoxication—you know, there are jokes about that all the time.
               There have commercials about people who live in those cookie
               cutter neighborhoods and, you know, you have a drink and you
               go home and you can’t find your house.
      Id. at 43. Boxley’s counsel explained that “[Boxley] was intoxicated. He made

      a mistake about which house he was at. He never intended to enter or tried to

      enter Ms. Peak’s house. He was trying to get into his sister’s house.” Id. at 44.

      The State argued that Boxley admitted he put himself in an intoxicated state

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015   Page 4 of 7
       and, therefore, could not use the mistake-of-fact defense to negate his

       culpability for the crime.


[8]    The trial court stated the following:

               With all of that said, I will say that misapprehension of one’s
               circumstances is not a defense and intoxication as is set forth by
               both the case law as well [as] the statute is also not a defense.
               Certainly it might be considered [a] mitigating circumstances
               [sic] if this was, say, the first time the gentleman had ever
               engaged in smoking—I can’t even believe I’m saying this—
               embalming fluid, but it is, in fact, not a defense.
       Tr. p. 45. The trial court then found Boxley guilty of attempted residential

       entry as a Level 6 felony. The abstract of judgment states under the crime

       charged “35-43-2-1.5/F6: Residential Entry break and enter dwelling NOTE—

       this does not require any intent.” Appellant’s Appendix p. 12. Boxley now

       appeals.


                                    Discussion and Decision
[9]    Boxley challenges his conviction for attempted residential entry, contending

       that the trial court erred by failing to consider his mistake-of-fact defense.


[10]   In order to establish that Boxley committed the offense of attempted residential

       entry, the State was required to prove beyond a reasonable doubt that Boxley

       knowingly or intentionally broke and entered Peak’s townhome. Ind. Code §

       35-43-2-1.5. Because the crime was charged as an attempt, the State was

       required to prove that Boxley acted with the culpability required for the

       commission of the crime and engaged in conduct constituting a substantial step

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015   Page 5 of 7
       toward the commission of that crime. Ind. Code § 35-41-5-1. In addition,

       breaking is established by showing that even slight force was used to gain

       unauthorized entry. Carson v. State, 963 N.E.2d 670, 683 (Ind. Ct. App. 2012),

       trans. denied.


[11]   The burden of proving each element of a criminal offense beyond a reasonable

       doubt rests with the State. Geljack v. State, 671 N.E.2d 163, 164 (Ind. Ct. App.

       1996). A defendant bears an initial burden of proof by a preponderance of

       evidence on any affirmative defense he raises. Wilson v. State, 4 N.E.3d 670,

       676 (Ind. Ct. App. 2014), trans. denied. However, it is the State that bears the

       burden of negating beyond a reasonable doubt any defense sufficiently raised by

       the defendant. Id.


[12]   Indiana Code section 35-41-3-7 (1977) provides that “[i]t is a defense that the

       person who engaged in the prohibited conduct was reasonably mistaken about a

       matter of fact, if the mistake negates the culpability required for commission of

       the offense.”


[13]   Here, Boxley testified that his sister lived in a townhouse in the same apartment

       complex as Peak. He further testified that he mistakenly believed he was at the

       door of his sister’s townhouse and was trying to open the door with a key his

       sister had given to him to use. Boxley’s testimony established that he was

       aware that he was trying to enter someone’s house, but was mistaken about

       whose house he was trying to enter. If he were in fact entering his sister’s

       townhouse, he would not have committed a criminal offense, as the entry


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015   Page 6 of 7
       would have been authorized. However, since he was mistaken about whose

       house he was attempting to enter, his attempt to enter Peak’s townhouse was

       unauthorized. Boxley’s intoxication was relevant to the determination of

       whether he had made an honest and reasonable mistake-of-fact, but

       intoxication is not available to him as a defense under these facts.


[14]   Boxley’s counsel acknowledged that an intoxication defense was unavailable to

       him, but asked the trial court to consider the mistake-of-fact defense. The court

       declined to do so, asserting that the State need not prove the element of intent.

       That belief was further expressed in the abstract of judgment.


[15]   The trial court mistakenly believed that the State need not prove the element of

       intent. Therefore, the trial court also mistakenly declined to consider Boxley’s

       mistake-of-fact defense. We must reverse Boxley’s conviction and remand this

       matter to the trial court for a new trial during which the trier of fact should

       consider Boxley’s mistake-of-fact defense. In doing so, we express no opinion

       on the merits of the defense.


                                                Conclusion
[16]   In light of the foregoing, we reverse Boxley’s conviction and remand the matter

       for a new trial.


[17]   Reversed and remanded for a new trial.


       Robb, J., and Pyle, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-171 | October 8, 2015   Page 7 of 7
