                                                                         Jun 28 2013, 7:15 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:

MICHAEL C. BORSCHEL                                       GREGORY F. ZOELLER
Fishers, Indiana                                          Attorney General of Indiana

                                                          JODI KATHRYN STEIN
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

SANTOS VASQUEZ,                                           )
                                                          )
       Appellant-Defendant,                               )
                                                          )
                vs.                                       )      No. 49A04-1301-CR-1
                                                          )
STATE OF INDIANA,                                         )
                                                          )
       Appellee-Plaintiff.                                )


                      APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Stanley Kroh, Commissioner
                             Cause No. 49G04-1111-FB-81523


                                                June 28, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
          Santos Vasquez appeals his conviction of Burglary, 1 a class B felony. Vasquez

presents the following restated issues for review:

          1.      Did the trial court err in admitting DNA evidence?

          2.      Was the evidence sufficient to support the conviction?

          We affirm.

          The facts favorable to the conviction are that on August 7, 2010, R.B. lived by herself

in her Indianapolis home. On that night, she fell asleep on the couch. She had closed and

locked the back door to her residence, and had also closed and locked the front storm door,

although the main front door stood open. Just before 3 a.m., she woke up to find a man

whom she did not know kneeling on the floor beside her, touching her breasts and vaginal

area outside of her clothes. When he attempted to put his hands inside her pants, she pushed

his hand away. At that point, she noticed that he had unfastened her pants and that his pants

were pulled down around his knees. R.B. told the man to stop touching her and to leave. He

refused. She attempted to get off of the couch, but the man put his hand on her chest and did

not allow her to get up. The man told R.B. that he loved her. She responded that was

impossible, because he did not even know her. She asked who he was and he responded in a

Spanish accent, “I am your leetle friend.” Exhibits Binder, Plaintiff’s Exhibit 10. After that,

“the man put his mouth on her breast and sucked on it through the shirt she was wearing.”

Id. The man then fled through the back door of the home. R.B. checked the front door and

discovered that it was not locked.


1
    Ind. Code Ann. § 35-43-2-1 (West, Westlaw current through P.L. 171 with effective dates through May 7,

                                                     2
         R.B. called the police and reported what had happened. Detective Rick Burkhart of

the Indianapolis Metropolitan Police Department responded to the call and spoke with R.B.

She told him that she did not clearly see the intruder’s face, but she described him as having a

dark complexion and a slender build. Det. Burkhart recovered the shirt R.B. was wearing at

the time of the assault. DNA testing performed on the shirt revealed the presence of DNA

that was not R.B.’s. The DNA profile found on the shirt was entered into the Indiana DNA

database (CODIS). It matched Vasquez’s. Based upon the database match, Det. Burkhart

applied for a search warrant for the purpose of obtaining a buccal cell sample from Vasquez.

The warrant was issued and a sample was taken from Vasquez via a buccal swab. The DNA

sample taken from R.B.’s shirt matched the DNA profile from Vasquez’s buccal swab.

         The State charged Vasquez with burglary as a class B felony and sexual battery as a

class D felony. Before trial, Vasquez moved to suppress the DNA evidence on grounds that

his DNA profile was not validly in the database. This, in turn, was based upon the argument

that his DNA profile had been placed in the database as a result of prior convictions that were

themselves invalid because of an unconstitutional detention. The trial court denied the

motion to suppress. Following a bench trial, Vasquez was convicted of burglary as a class B

felony.

                                              1.

         Vasquez contends the trial court erred in admitting DNA evidence. The decision to

admit or exclude evidence lies within the trial court’s sound discretion and is generally


2013).

                                               3
afforded great deference upon appeal. Carpenter v. State, 786 N.E.2d 696 (Ind. 2003). “An

abuse of discretion occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before it.” An-Hung Yao v. State, 975 N.E.2d 1273,

1276 (Ind. 2012) (quoting Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012)). “A trial

court also abuses its discretion when it misinterprets the law.” Id. We will not reverse a trial

court’s ruling on the admissibility of evidence absent a showing of manifest abuse of

discretion resulting in the denial of a fair trial. Carpenter v. State, 786 N.E.2d 696. In

making this determination, the court on review will consider the evidence in favor of the trial

court’s ruling and unrefuted evidence in a defendant’s favor. Sallee v. State, 777 N.E.2d

1204 (Ind. Ct. App. 2002), trans. denied.

       Vasquez contends his DNA profile was present in the CODIS database as a result of

“a series of missteps in his prior cases where his illegal detention was not challenged by

either trial or appellate counsel.” Appellant’s Brief at 6. Thus, he continues, its inclusion in

the CODIS database was illegal in the first place. Vasquez contends this is “the classic ‘for

want of a nail’ tale of causality come to life.” Id. If we understand the argument, perhaps

“fruit of the poisonous tree” is a more apt metaphor. Be that as it may, Vasquez essentially

argues that his CODIS DNA profile was obtained illegally and therefore its subsequent use in

any legal forum is, by extension, also illegal. Whatever else may be said of this novel

argument, it represents an impermissible collateral attack on a prior conviction, because it

rests entirely upon the validity of the prior conviction. We cannot entertain such an

argument. See Kuhn v. State ex rel. Van Natta, 402 N.E.2d 38 (Ind. Ct. App. 1980).


                                               4
                                              2.

       Vasquez contends the evidence was not sufficient to support the conviction. Our

standard of reviewing challenges to the sufficiency of the evidence supporting a criminal

conviction is well settled.

       When reviewing a challenge to the sufficiency of the evidence underlying a
       criminal conviction, we neither reweigh the evidence nor assess the credibility
       of witnesses. The evidence—even if conflicting—and all reasonable inferences
       drawn from it are viewed in a light most favorable to the conviction. “[W]e
       affirm if there is substantial evidence of probative value supporting each
       element of the crime from which a reasonable trier of fact could have found
       the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d
       1176, 1178 (Ind. 2004). A conviction can be sustained on only the
       uncorroborated testimony of a single witness, even when that witness is the
       victim.

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (some citations omitted).

       In order to convict Vasquez of burglary, the State was required to prove beyond a

reasonable doubt that he broke and entered a building or structure of another person with

intent to commit a felony therein. See I.C. § 35–43–2–1. Vasquez contends the State failed

to do so because it did not establish all of the elements of the predicate felony, i.e., sexual

battery. Vasquez explains, “the evidence before the trial court was insufficient to prove

beyond a reasonable doubt that the victim experienced fear prior to the unwanted touching in

question, as required in Perry v. State, 962 N.E.2d 154 (Ind. Ct. App. 2012).” Appellant’s

Brief at 6. This argument miscomprehends the elements of burglary.

       “Burglary is the breaking and entering of the building or structure of another person

with the intent to commit a specific felony therein.” Baker v. State, 968 N.E.2d 227, 229

(Ind. 2012) (emphasis supplied). Thus, the State was not required to prove all of the

                                              5
elements of sexual battery in order to obtain a burglary conviction. Rather, it was enough to

prove that Vasquez broke and entered R.B.’s home with the intent to commit that offense.

With respect to this intent element, our Supreme Court has observed,

       “[b]urglars rarely announce their intentions at the moment of entry,” [Gilliam
       v. State, 508 N.E.2d 1270, 1271 (Ind. 1987) ], 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.” Id.

Id. at 229–30.

       In the present case, Vasquez does not challenge the evidence establishing the elements

of breaking and entering into R.B.’s home. Moving now to what Vasquez calls the

“predicate” offense, sexual battery is defined as follows: “A person who, with intent to

arouse or satisfy the person’s own sexual desires or the sexual desires of another person,

touches another person when that person is ... compelled to submit to the touching by force or

the imminent threat of force ... commits sexual battery, a Class D felony.” Ind. Code Ann. §

35-42-4-8 (West, Westlaw current through P.L. 171 with effective dates through May 7,

2013). The State presented evidence that R.B. awoke to discover Vasquez fondling her

breasts and vaginal area, with his hands on top of her clothing at the time. Vasquez

forcefully held R.B. down on the couch when she attempted to get up. He then attempted to

put his hands inside her pants. At the time he was touching her, Vasquez had pulled his pants

down around his knees. This evidence is easily sufficient to permit a reasonable inference

that Vasquez broke and entered into R.B.’s home with the intent to commit the offense of

sexual battery.


                                              6
      Judgment affirmed.

ROBB, C.J., and CRONE, J., concur.




                                     7
