MEMORANDUM DECISION
                                                                        Jun 05 2015, 8:08 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
Amanda O. Blackketter                                     Gregory F. Zoeller
Blackketter Law Office                                    Attorney General of Indiana
Shelbyville, Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Harold W. Reynolds,                                      June 5, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A01-1407-CR-314
        v.                                               Appeal from the Shelby Superior
                                                         Court
                                                         The Honorable Jack A. Tandy,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       Cause No. 73D01-1401-FC-7




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015             Page 1 of 17
                                             Case Summary
[1]   Harold W. Reynolds (“Reynolds”) appeals his conviction and sentence for

      Burglary, as a Class C felony. 1 We affirm.



                                                        Issues
[2]   Reynolds presents three issues for review, which we restate as:


           I.   Whether the trial court properly denied Reynolds’s request to instruct the

                jury on criminal trespass as a lesser included offense of burglary;

          II.   Whether the trial court abused its discretion when it admitted into

                evidence two photographs depicting a hole in the side of a Quonset hut;

                and

      III.      Whether the trial court abused its discretion when it found no mitigating

                factors that would affect Reynolds’s sentence.



                              Facts and Procedural History
[3]   On Sunday, January 26, 2014, at approximately 3:00 a.m., Morristown Police

      Department Chief Henry Albrecht (“Officer Albrecht”) overheard a Shelby

      County Sheriff’s Department dispatch about a suspected burglary in progress at

      Integrity Metals, a scrap metal recycling facility located on seventeen acres in



      1
        Ind. Code § 35-43-2-1. Due to substantial revisions to the Indiana Code effective July 1, 2014, this offense
      is now a Level 5 felony. Throughout this opinion, we refer to the versions of the statutes in effect at the time
      of Reynolds’s offense.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015                  Page 2 of 17
      Shelby County. The dispatch indicated that three men were walking through

      the facility and rummaging in vehicles parked on the property. Integrity Metals

      was not open for business on Sundays at 3:00 a.m., and owner Joshua Carter

      (“Carter”) had not given anyone permission to access the property at that time.

      A ten-foot-high privacy fence surrounded the property and the fence gate was

      locked with a padlock whenever the business was closed. The police were

      alerted to the unusual activity by Watchdog Security, a company that Carter

      had hired to install and monitor a virtual recognition camera security system.

      A sign posted on the fence stated that video surveillance was used on the

      premises.


[4]   Officer Albrecht drove to the property and observed a white truck with expired

      temporary plates parked partially in a ditch just outside the entrance gate. The

      officer stopped and parked. After retrieving from the trunk of his squad car an

      AR-15 rifle equipped with a flashlight, Officer Albrecht approached the truck to

      see if it was occupied. As he approached, he observed a man, later identified as

      Reynolds, inside the gate standing next to a running forklift from which he had

      just alighted. Officer Albrecht pointed the rifle and flashlight at Reynolds,

      identified himself, and ordered Reynolds to put his hands up. Reynolds

      initially complied, but then turned and ran.


[5]   Outnumbered by the three men reportedly inside the property, Officer Albrecht

      waited for back-up to arrive. Officer Eric Fields (“Officer Fields”), a canine

      handler from the Greenfield Police Department, was one of the responding

      officers. Approximately two hours after Officer Albrecht first encountered

      Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 3 of 17
      Reynolds, Officer Fields and two other canine officers tracked the suspects to a

      drainage ditch outside the property. The men were huddled together in the

      freezing water. Officer Fields deployed his dog to detain the suspects. All three

      men were placed under arrest and transported to the hospital for treatment for

      weather-related injuries. Reynolds was also treated for a dog bite.


[6]   Meanwhile, Carter, who had received calls from Watchdog Security and

      Officer Albrecht, arrived at the front gate. Carter saw that the snow was

      disturbed around a section of fence that crossed over a shallow ditch and left a

      gap under the fence. The padlock that usually secured the gate was missing.

      The forklift was not where it was parked the night before, but was running right

      by the gate.


[7]   After the suspects were in custody, Officer Albrecht and Carter walked through

      the property together. Carter saw that a “pretty big gash” (Tr. 231), large

      enough that “you could walk through” (Tr. 232), had been cut in the side of the

      Quonset hut that housed Integrity Metals’s non-ferrous scrap metal buying

      operation. The hut stored metal purchases with a “higher dollar value.” (Tr.

      235.) The door to the Quonset hut was open, and Carter could see that some

      things were out of place, including three boxes of copper on the ground. In

      addition, vehicle tracks in the snow indicated that the forklift had been driven

      around a loader truck that Carter typically parked in front of the Quonset hut

      entrance “to make sure that people have a difficult time trying to get things out

      of there.” (Tr. 234.)



      Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 4 of 17
[8]    After obtaining a warrant, Officer Albrecht searched the white truck found at

       the scene. Inside, he found a current license plate for the truck and registration

       indicating that Reynolds was the owner. He also found two bolt cutters, tin

       snips, a pair of hand-held radios, and numerous receipts for the sale of metal.

       The next day, Officer Albrecht returned and found the gate padlock on the

       ground near where the truck had been parked; the lock had been cut in two. A

       check of the computer system on which Integrity Metals tracked all scrap metal

       buys using the seller’s driver’s license number revealed that Reynolds sold scrap

       metal to Integrity Metals on January 23, 2014, three days before the incident.

       Reynolds also sold copper and iron to Integrity Metals on October 13 and 16,

       2012.


[9]    On January 27, 2014, the State charged Reynolds with Burglary, as a Class C

       felony, Attempted Theft, as a Class D felony, 2 and Resisting Law Enforcement,

       as a Class A misdemeanor. 3 The State also alleged Reynolds to be a Habitual

       Offender. 4


[10]   Reynolds’s jury trial commenced on May 27, 2014. At the close of the State’s

       evidence, Reynolds moved under Trial Rule 50 for judgment on the evidence as




       2
           I.C. § 35-43-4-2(a). This offense is now either a Class A misdemeanor or a Level 5 or 6 felony.
       3
        I.C. § 35-44.1-3-1(a)(1). The charging information erroneously titled the offense “Fleeing Law
       Enforcement” and cited Indiana Code section 35-44-3-3, a previous version of the Resisting Law
       Enforcement statute that was repealed on July 1, 2012. See Pub. L. No. 126-2012, § 53.
       4
           I.C. § 35-50-2-8.


       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015                    Page 5 of 17
       to the Resisting Law Enforcement charge, which the trial court granted. 5 On

       May 28, 2014, the jury returned guilty verdicts on the Burglary and Attempted

       Theft charges. Reynolds then admitted to being a Habitual Offender. On June

       25, 2014, the trial court found that the Burglary merged with Attempted Theft

       and entered a judgment of conviction on the Burglary charge. The court also

       found Reynolds to be a Habitual Offender. Reynolds was sentenced to six

       years in the Indiana Department of Correction (“DOC”) for Burglary,

       enhanced by twelve years due to the Habitual Offender determination.

       Reynolds now appeals his conviction and sentence.



                                  Discussion and Decision
                                     Lesser Included Offense
[11]   Reynolds first argues that the trial court erred when it refused his request to

       instruct the jury on criminal trespass as a lesser included offense of burglary.


[12]   When a party asks the trial court to instruct the jury on a lesser included offense

       of the crime charged, the court must engage in a three-step analysis: (1)

       determine whether the lesser offense is inherently included in the crime charged;

       (2) if not inherently included, determine whether the lesser offense is factually

       included in the crime charged; and (3) if the alleged offense is either inherently




       5
        The charging information alleged that Reynolds committed the offense on September 24, 2006, a fact not
       corrected by the prosecution before or during trial.

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015            Page 6 of 17
       or factually included, determine whether a serious evidentiary dispute exists

       whereby the jury could have concluded that the lesser offense was committed

       but not the greater. Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000) (citing

       Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995)).


[13]   Reynolds concedes that criminal trespass is not an inherently lesser included

       offense of burglary, but argues that, in this case, criminal trespass is a factually

       lesser included offense.


[14]   To determine whether the lesser offense is factually included in the charged

       crime, the court compares the statute defining the alleged lesser included

       offense with the charging instrument in the case. Wright, 658 N.E.2d at 567. If

       the charging instrument alleges that the means used to commit the crime

       charged include all of the elements of the lesser offense, then the lesser offense

       is factually included. Id. Thus, we must compare the charging instrument in

       this case to the statute defining criminal trespass and determine whether the

       information charging Reynolds with burglary alleged all of the elements of

       criminal trespass.


[15]   The charging information alleged that “Reynolds did knowingly or

       intentionally break and enter the building or structure of Integrity Metals, with

       the intent to commit the felony of theft therein, and/or he did aid, cause or

       induce another to do the same[.]” (App. 31.) Criminal trespass is defined, in

       relevant part, as follows:

               (a) A person who:

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 7 of 17
               (1) not having a contractual interest in the property, knowingly or
               intentionally enters the real property of another person after having
               been denied entry by the other person or that person’s agent;
               [. . . ]
               commits criminal trespass, a Class A misdemeanor.
       I.C. § 35-43-2-2(a)(1). Thus, a person commits criminal trespass when he or she

       (1) knowingly or intentionally enters the real property of another, (2) after

       having been denied entry by the other person or that person’s agent, (3) not

       having a contractual interest in the property.


[16]   On its face, then, the statutory definition of criminal trespass contains two

       elements not found in the charging information: (1) denial of entry, and (2) lack

       of a contractual interest in the property. Reynolds argues that by charging that

       he did “break and enter” the property, the State sufficiently alleged denial of

       entry and lack of a contractual interest, such that the charging information

       alleged all of the elements of criminal trespass.


[17]   Our supreme court confronted a similar issue in J.M. v. State, 727 N.E.2d 703

       (Ind. 2000). In that case, J.M., a minor, was alleged to have committed

       residential burglary, as a class B felony when committed by an adult, and the

       State charged that he “did knowingly or intentionally break and enter the

       building or structure of Marvin Parks, which building or structure was a

       residence, . . . with the intent to commit a felony there, that is: theft.” Id. at

       705. J.M. was adjudicated delinquent of criminal trespass as a lesser included

       offense of burglary, which on appeal J.M. argued was erroneous. Id. at 704.

       The residential criminal trespass statute at issue in J.M. required the State to

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 8 of 17
       show that J.M. (1) knowingly or intentionally entered the dwelling of another

       person, (2) without the other person’s consent, (3) not having a contractual

       interest in the property. Id. at 705 (citing I.C. § 35-43-2-2(a)(5)). J.M. argued

       that “without consent” and “not having a contractual interest in the property”

       were elements of criminal trespass not included in the charging information. Id.

       However, the court held that “by charging that J.M. did knowingly or

       intentionally ‘break and enter’ the residence of another person, the State

       sufficiently alleged facts constituting criminal trespass to support the finding of

       the magistrate and the judgment of the trial court.” Id. See also Higgins v. State,

       783 N.E.2d 1180, 1188-89 (Ind. Ct. App. 2003) (holding that criminal trespass

       was a factually included lesser offense of residential entry where (1) residential

       criminal trespass included the elements of absence of consent and lack of a

       contractual interest, and (2) the State alleged that the defendant did knowingly

       “break and enter” the victim’s dwelling), trans. denied.


[18]   The criminal trespass statute under which J.M. was adjudicated a delinquent

       and the criminal trespass statute at issue in this case both contain the element of

       “not having a contractual interest in the property.” See I.C. §§ 35-43-2-2(a)(5),

       35-43-2-2(a)(1). However, where the statute in J.M. defined residential criminal

       trespass as entry “without consent,” I.C. § 35-43-2-2(a)(5), the statute under

       which Reynolds sought an instruction requires a showing that Reynolds entered

       “after having been denied entry by the other person or that person’s agent.”

       I.C. § 35-43-2-2(a)(1). Citing J.M., Reynolds argues that the allegation of

       “‘breaking and entering’ implies that he had been denied entry, just as our


       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 9 of 17
       courts have found that it implies the lack of consent . . . .” (Appellant’s Br. 9-

       10.)


[19]   We disagree. As used in the statute, “denied entry” means:

               (b) A person has been denied entry under subdivision (a)(1) of this
               section when the person has been denied entry by means of:
                   (1) personal communication, oral or written;
                   (2) posting or exhibiting a notice at the main entrance in a manner
                   that is either prescribed by law or likely to come to the attention of
                   the public; or
                   (3) a hearing authority or court order under IC 32-30-6 [nuisance
                   actions], IC 32-30-7 [actions for indecent nuisances], IC 32-30-8
                   [actions for drug nuisances], IC 36-7-9 [unsafe building law], or IC
                   36-7-36 [abatement of vacant structures and abandoned structures].


       I.C. § 35-43-2-2(b). The statutory definition indicates that to deny entry means

       to take active steps to communicate that a person may not enter that property.

       To “deny entry” to a person thus requires more than a mere absence of consent.

       See Smithley v. State, 582 N.E.2d 903, 904 (Ind. Ct. App. 1991) (holding that

       entry is not denied under Indiana Code section 35-43-2-2(b) and entering

       another’s real property “without consent” does not constitute criminal trespass

       unless visible signs denying entry are posted, denial of entry has been personally

       communicated, or a request to leave is made). Nothing in the record indicates

       that Integrity Metals communicated that Reynolds was denied entry to the

       property.


[20]   Reynolds contends, however, that a sign posted on Integrity Metals’s fence

       “implies a denial of entry[.]” (Appellant’s Br. 10.) The sign, posted on the

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 10 of 17
       fence next to the entrance gate, read: “SECURITY NOTICE VIDEO

       SURVEILLANCE IN USE ON THESE PREMISES.” (Ex. 6.) Although the

       sign alerts the public that Integrity Metals uses a video surveillance system, the

       text of the sign does not explicitly deny a person entry to the property. Nor

       does the sign implicitly deny entry simply because it may act as a deterrent to

       prospective burglars. Furthermore, we are not persuaded by Reynolds’s

       argument that the sign implicitly denies entry “when coupled with the evidence

       at trial showing that Integrity Metals’[s] property was surrounded by a ten foot

       privacy fence, and the business was closed with a locked gate when Reynolds

       allegedly entered it.” (Appellant’s Br. 10.) A secured building does not

       affirmatively deny a person entry within the meaning of Indiana Code section

       35-43-2-2(b). See Smithley, 582 N.E.2d at 904 (locked doors and boarded

       windows do not constitute denial of entry). The addition of a sign that does not

       explicitly deny a person entry to the property does not change the calculus.


[21]   Because the charging information in this case did not allege all of the elements

       of criminal trespass, criminal trespass is not a factually included lesser offense

       of burglary as charged. 6 Accordingly, the trial court did not err in refusing

       Reynolds’s requested instruction.




       6
         Because criminal trespass is neither an inherently nor factually lesser included offense of burglary in this
       case, we need not reach part three of the test. See Wright, 658 N.E.2d at 567 (“If the alleged lesser included
       offense is neither inherently nor factually included in the crime charged, then the trial court should not give a
       requested instruction on the alleged lesser included offense.”).

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015                   Page 11 of 17
                                  Admission of Photographs
[22]   Reynolds next argues that the trial court abused its discretion when it admitted

       into evidence two photographs depicting the hole in the Quonset hut. The

       admission of photographic evidence is reviewed for an abuse of discretion.

       Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert. denied. When photographs

       are used as demonstrative evidence – that is, as visual aids that assist in the

       presentation and interpretation of testimony – it must first be shown that the

       photographs are a true and accurate representation of the things they are to

       portray. Smith v. State, 491 N.E.2d 193, 195 (Ind. 1986) (citing Brumfield v.

       State, 442 N.E.2d 973, 975 (Ind. 1982)). An adequate foundation exists when a

       supporting witness testifies that the photographs accurately depict the scene or

       occurrence as it appeared at the time in question. Id.


[23]   Officer Albrecht took the photographs of the hole in the side of the Quonset hut

       on May 26, 2014, four months after the burglary. At trial, Carter testified that,

       with the exception of some tape he applied in an unsuccessful attempt to close

       the hole and the fact that there was no snow on the ground in May, the

       photographs accurately depicted the hole as it appeared on January 26, 2014.

       Later, when the State offered to introduce the photographs into evidence,

       Officer Albrecht also testified that, except for the tape marks and lack of snow,

       the photographs accurately depicted the hole on the night of the burglary. On

       cross-examination, however, Officer Albrecht admitted that he did not measure

       the hole on either January 26 or May 26, 2014, so he could not say if exact



       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 12 of 17
       measurements of the hole changed. Over Reynolds’s objection, the trial court

       admitted the photographs.


[24]   On appeal, Reynolds argues that Officer Albrecht’s testimony provided an

       insufficient foundation to admit the pictures, pointing specifically to the

       officer’s response on cross-examination. Even though Officer Albrecht

       admitted that he did not take specific measurements of the cut, he consistently

       testified – before and after the cross-examination – that, except for the tape and

       snow, the photographs accurately depicted the hole as it appeared on the night

       of the burglary. This was an adequate foundation, and any remaining

       uncertainty about the exact hole size goes to the weight of the photographs, not

       their admissibility. See Knapp, 9 N.E.3d at 1281 (holding that uncertainty about

       the date and time photographs were taken, where accuracy of the data

       depended on whether the camera’s time and date were set correctly, affected

       their weight, not admissibility.)


[25]   Moreover, even if the trial court erred in admitting the two photographs, we

       would find the error harmless. Errors in the admission or exclusion of evidence

       are disregarded as harmless error, unless they affect the substantial rights of the

       party. Ind. Trial Rule 61; Corbett v. State, 764 N.E.2d 622, 628 (Ind. 2002). “To

       determine whether an error in the introduction of evidence affected the

       appellant’s substantial rights, this Court must assess the probable impact of that

       evidence upon the jury.” Corbett, 764 N.E.2d at 628. Here, Carter had already

       testified, without reference to the photographs, that after the burglary he

       discovered a “pretty big gash” in the Quonset hut (Tr. 231), large enough that

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 13 of 17
       “you could walk through.” (Tr. 232.) He also described the hole as a “walk

       through door.” (Tr. 231-32.) The photographs merely illustrated the substance

       of Carter’s testimony regarding the size of the hole.


[26]   Reynolds argues, however, that the error could not be harmless because “the

       pictures of the Quonset hut not only influenced the jury to find that [he] ‘broke

       and entered’ the Quonset hut, but it is likely that the pictures also convinced the

       jury that [he] intended to commit theft on the premises.” (Appellant’s Br. 16.)

       However, the jury had before it other evidence of breaking and entering; for

       example, the cut padlock gate and open fence. In addition, there was ample

       evidence of intent to commit theft, including that the doors to the Quonset hut

       (which Reynolds knew housed valuable metals because he had previously sold

       scrap there) were opened, boxes containing copper scrap had been moved, and

       the forklift had been driven out of its position blocking the hut entrance.

       Because the photographs likely had minimal impact on the jury’s verdict, the

       probable impact of their admission did not affect Reynolds’s substantial rights,

       and any error in admitting them must be disregarded as harmless.


                                                 Sentencing
[27]   Reynolds next contends that the trial court abused its discretion by failing to

       identify two mitigating factors when imposing his sentence.


[28]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

       490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 14 of 17
       discretion occurs if the decision is clearly against the logic and effect of the facts

       and circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom. Id. (citation and quotation marks omitted).

       Trial courts must enter a sentencing statement whenever imposing a sentence

       for a felony offense, and the statement must include a reasonably detailed

       recitation of the court’s reasons for imposing a particular sentence. Id. “If the

       recitation includes a finding of aggravating or mitigating circumstances, then

       the statement must identify all significant mitigating and aggravating

       circumstances and explain why each circumstance has been determined to be

       mitigating or aggravating.” Id.


[29]   A trial court abuses its discretion if it (1) does not enter a sentencing statement,

       (2) enters a sentencing statement that explains reasons for imposing a sentence

       – including a finding of aggravating and mitigating factors if any – but the

       record does not support the reasons, (3) enters a statement that omits reasons

       that are clearly supported by the record and advanced for consideration, or (4)

       considers reasons that are improper as a matter of law. Jackson v. State, 973

       N.E.2d 1123, 1130 (Ind. Ct. App. 2012) (citing Anglemyer, 868 N.E.2d at 490–

       91), trans. denied. “An allegation that the trial court failed to identify or find a

       mitigating factor requires the defendant to establish that the mitigating evidence

       is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d

       at 493.


[30]   On June 25, 2014, the trial court sentenced Reynolds to six years for the

       Burglary conviction, enhanced by twelve years due to the Habitual Offender

       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 15 of 17
       determination. The court found as aggravating circumstances Reynolds’s

       substantial criminal history, history of probation violations, and the fact that he

       was on probation at the time of the instant offense. The court found no

       mitigating circumstances. Reynolds argues that the court failed to consider as

       mitigating factors (1) that he admitted to being a habitual offender, and (2) his

       remorse, as demonstrated by a letter he wrote to the court.


[31]   A guilty plea can be a significant mitigating factor when the State reaps

       substantial benefit from the defendant’s act of pleading guilty. Jackson, 973

       N.E.2d at 1131. However, Reynolds admitted to being a Habitual Offender

       only after a jury convicted him of Burglary. His admission thus relieved the

       State only of the burden of proving the nature and chronology of his past

       convictions. This burden involves “far fewer resources” than a jury trial. Id.

       Because Reynolds’s admission to being a habitual offender did not result in a

       substantial benefit to the State, the trial court did not abuse its discretion in

       declining to consider it as a mitigating factor. See id.


[32]   Next, Reynolds cites an undated letter to the trial court as evidence of his

       alleged remorse. The letter appears in the Appendix and states, in relevant part:

               I want to apology [sic] for the embarrasment [sic] and the bad example
               I’ve cause[d] in Shelby County.
               I want to take the responsibility for the mistake and very poor
               judgement [sic] I made. This mistake has awakened me from things I
               didn’t see before which was my reckless behavior and carelessness.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 16 of 17
       (App. 130.) Even if we were to agree with Reynolds’s characterization of this

       statement as remorseful, we cannot ignore his June 13, 2014 written statement

       attached to the presentence investigation report, in which he plainly states that

       “I do not agree with the fact I was found guilty.” (Presentence Investigation

       Report 16.) Furthermore, in his presentence interview, he denied that he was

       attempting to steal property from Integrity Metals and acknowledged only the

       “risk,” not the harm, associated with his actions that evening. (Presentence

       Investigation Report 14.) Because in our view evidence of remorse is not

       “clearly supported by the record” Anglemyer, 868 N.E.2d at 493, the trial court

       did not abuse its discretion in declining to identify it as a mitigating factor.



                                               Conclusion
[33]   The trial court did not err when it refused Reynolds’s request to instruct the jury

       on criminal trespass as a lesser included offense of burglary. The trial court did

       not abuse its discretion in admitting two photographs or in declining to find

       mitigating factors during sentencing.


[34]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-314 | June 5, 2015   Page 17 of 17
