MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                          Jul 28 2016, 9:21 am
regarded as precedent or cited before any
                                                                   CLERK
court except for the purpose of establishing                   Indiana Supreme Court
                                                                  Court of Appeals
the defense of res judicata, collateral                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                        Gregory F. Zoeller
McCaslin & McCaslin                                      Attorney General
Elkhart, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Carl G. Johnson, Jr.,                                    July 28, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         20A04-1511-CR-2080
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable David C.
Appellee-Plaintiff.                                      Bonfiglio, Judge
                                                         Trial Court Cause No.
                                                         20D06-1407-F6-55



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 1 of 9
                                             Case Summary
[1]   Carl Johnson, Jr. appeals his convictions for Level 6 felony residential entry

      and Class A misdemeanor resisting law enforcement. We affirm.


                                                     Issues
[2]   The restated and consolidated issues before us are:


              I.       whether the evidence is sufficient to support Johnson’s
                       convictions; and

              II.      whether the trial court committed fundamental error by failing to
                       sua sponte instruct the jury that criminal trespass is a lesser-included
                       offense of residential entry and that consent is a defense to
                       criminal trespass.

                                                     Facts
[3]   On July 24, 2014, Michael Brown, his family, and his dog were in the kitchen

      of their Elkhart County residence when Brown heard the dog growl and saw the

      dog “bolt for the front door.” Tr. p. 76. Brown then observed a man, who was

      later identified as Johnson, “enter the door and immediately exit.” Id. Johnson

      admitted he did not have permission to enter Brown’s house and that he,

      Johnson, opened Brown’s door. Brown followed Johnson outside and asked

      him what he was doing. Johnson told Brown someone was trying to hurt him

      (Johnson), but declined Brown’s offer to call the police. Johnson stated he had

      been using drugs and would get in trouble. Johnson left Brown’s residence

      when Brown told him he was going to let the dog out of the house. Brown then

      contacted the police.



      Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 2 of 9
[4]   Goshen Police Officer Michael Clere, who was in full uniform and driving a

      marked police car, responded to Brown’s call. Officer Clere located Johnson

      walking approximately six blocks away from Brown’s house. He asked

      Johnson if he was okay. Johnson stated he was. At some point during the

      conversation, someone set off fireworks nearby. Johnson, however, believed

      the sound was that of a gunshot, and he ran away. Officer Clere attempted to

      console Johnson and asked him to come back. When Johnson did not return,

      Officer Clere identified himself as a police officer and ordered him to stop.

      Johnson “just looked back and shook his head ‘no.’” Id. at 58. Johnson

      admitted he did not stop when Officer Clere ordered him to stop: “No. I just,

      like I said, I kept runnin [sic] for my safety.” Id. at 92. Officer Clere then

      pursued Johnson and located him on his knees in someone’s yard with his

      hands up.


[5]   The State charged Johnson with Level 6 felony residential entry, Class A

      misdemeanor resisting law enforcement by fleeing, and Class B misdemeanor

      false informing. On October 12, 2015, Johnson was tried by a jury. The jury

      was not instructed regarding the defense of consent to residential entry or the

      lesser-included offense of criminal trespass. Johnson did not submit those

      proposed instructions. The jury found Johnson guilty of residential entry and

      resisting law enforcement. The State dismissed the false informing charge. The

      trial court sentenced Johnson to 900 days in the Purposeful Incarceration

      Program for the residential entry conviction and a concurrent sentence of 365




      Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 3 of 9
      days in the Department of Correction for the resisting law enforcement

      conviction.


                                                   Analysis
                                    I.      Sufficiency of the Evidence

[6]   Johnson first contends the evidence was not sufficient to support his

      convictions.


              When reviewing a claim of insufficient evidence, an appellate
              court considers only the evidence most favorable to the verdict
              and any reasonable inferences that may be drawn from that
              evidence. If a reasonable finder of fact could determine from the
              evidence that the defendant was guilty beyond a reasonable
              doubt, then we will uphold the verdict. We do not reweigh the
              evidence or judge the credibility of witnesses. These evaluations
              are for the trier of fact, not appellate courts. In essence, we assess
              only whether the verdict could be reached based on reasonable
              inferences that may be drawn from the evidence presented.


      Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations

      omitted).


                                          A.      Residential Entry

[7]   Although Johnson admitted he did not have permission to enter Brown’s

      house, he contends that he had consent to do so: “Johnson’s belief that, under

      the circumstances [someone was trying to hurt him], the homeowner would

      have consented to Johnson’s entry of the homeowner’s residence was

      reasonable.” Appellant’s Br. p. 14. Indiana Code Section 35-43-2-1.5 states


      Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 4 of 9
      that a person commits residential entry if he “knowingly or intentionally breaks

      and enters the dwelling of another person . . . .”


               Lack of consent is not an element of the offense the State is
               required to prove. Rather, it is the defendant who must claim
               and prove the defense of consent. A defendant’s belief that he
               has permission to enter must be reasonable in order for the
               defendant to avail himself of the defense of consent.


      Townsend v. State, 33 N.E.3d 3367, 373 (Ind. Ct. App. 2015) (quotations

      omitted) (citations omitted), trans. denied.1 “In order to establish that a breaking

      has occurred, the State need only introduce evidence from which the trier of

      fact could reasonably infer that the slightest force was used to gain

      unauthorized entry. The opening of an unlocked door is sufficient.” Young v.

      State, 846 N.E.2d 1060, 1063 (Ind. Ct. App. 2006) (citations omitted).


[8]   Johnson testified he opened the door to Brown’s home. He testified: “I didn’t

      have permission to enter his home.” Tr. p. 91. Brown testified Johnson

      entered Brown’s home. This evidence is sufficient to support Johnson’s

      residential entry conviction. Johnson argues that he raised the consent of

      defense by presenting evidence that he believed someone was trying to hurt

      him. To the extent the jury understood that Johnson presented the defense of




      1
        We note that Townsend discussed a prior version of Indiana Code Section 35-43-2-1.5, under which that
      crime was designated as a Class D felony. Although the current version of that statute defines the crime as a
      Level 6 felony, the elements of the crime are the same as they were under the version of the statute discussed
      in Townsend.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016               Page 5 of 9
       consent, it rejected that defense. It is not within our province to reweigh the

       evidence or assess the credibility of the witnesses.


                                    B.       Resisting Law Enforcement

[9]    Johnson next contends the evidence was not sufficient to support his conviction

       for resisting law enforcement by fleeing because “Johnson was not fleeing the

       officer but was running from what he thought were shots being fired at him . . .

       Johnson began running for security reasons and not because he was resisting

       law enforcement.” Appellant’s Br. p. 20. Indiana Code Section 35-44.1-3.1

       defines resisting law enforcement as “ knowingly or intentionally . . . flee[ing]

       from a law enforcement officer after the officer has, by visible or audible means

       . . . identified himself or herself and ordered the person to stop[.]”


[10]   Officer Clere testified that at the time of his encounter with Johnson he was

       driving a marked police vehicle and wearing a police uniform. During his

       testimony, Johnson acknowledged Officer Clere said, “Stop! Police!” Tr. p.

       92. Johnson further testified that he did not stop when Officer Clere ordered

       him to. Instead, Johnson testified, “No [I did not stop]. I just, like I said, I kept

       runnin [sic] for my safety.” Id.


[11]   This was sufficient evidence from which the jury could conclude beyond a

       reasonable doubt that Johnson resisted law enforcement by fleeing. In an effort

       to mitigate his actions, Johnson explained he believed he was in danger when

       he ran from Officer Clere. The jury had the opportunity to consider that




       Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 6 of 9
       evidence and chose to convict Johnson. We may not reweigh the evidence or

       judge the witnesses’ credibility in order to reach a different outcome.


                                           II.      Jury Instructions

[12]   Johnson contends the trial court committed fundamental error when it failed to

       sua sponte instruct the jury that criminal trespass is a lesser-included offense of

       residential entry and regarding the defense of consent.


               Fundamental error is an extremely narrow exception to the
               waiver rule where the defendant faces the heavy burden of
               showing that the alleged errors are so prejudicial to the
               defendant’s rights as to make a fair trial impossible. In
               evaluating the issue of fundamental error, our task is to look at
               the alleged misconduct in the context of all that happened and all
               relevant information given to the jury—including evidence
               admitted at trial, closing argument, and jury instructions—to
               determine whether the misconduct had such an undeniable and
               substantial effect on the jury’s decision that a fair trial was
               impossible. Fundamental error is meant to permit appellate
               courts a means to correct the most egregious and blatant
               trial errors that otherwise would have been procedurally barred,
               not to provide a second bite at the apple for defense counsel . . . .


       Miles v. State, 51 N.E.3d 305, 310 (Ind. Ct. App. 2016) (citations omitted)

       (internal quotations omitted) (omission in original), trans. denied.


[13]   It is well-established that “a trial court’s failure to sua sponte give instructions on

       lesser-included offenses does not constitute fundamental error.” Lane v. State,

       953 N.E.2d 625, 630 (Ind. Ct. App. 2011). Instead, “the entitlement to

       included offenses instructions, in an appropriate case . . . is one that must be


       Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 7 of 9
       claimed and the claim preserved, in accordance with established rules of trial

       and appellate procedure.” Helton v. State, 273 Ind. 211, 213, 402 N.E.2d 1263,

       1266 (Ind. 1980). Thus, Johnson’s fundamental error argument, as it relates to

       the lack of an instruction that criminal trespass is a lesser-included offense of

       residential entry, fails.


[14]   Johnson’s argument with regard to an instruction on the defense of consent

       fails, too. “The giving of jury instructions is a matter within the sound

       discretion of the trial court, and we review the trial court’s refusal to give a

       tendered instruction for an abuse of that discretion.” Howard v. State, 755

       N.E.2d 242, 247 (Ind. Ct. App. 2001). “[A] defendant in a criminal case is

       entitled to have the jury instructed on any theory of defense that has some

       foundation in the evidence. We apply this rule even if the evidence is weak and

       inconsistent so long as the evidence presented at trial has some probative value

       to support it.” Id. (citations omitted). “A defendant’s reasonable belief that he

       had permission of the dwelling’s owner to enter is a defense to the charge of

       residential entry.” Webster v. State, 708 N.E.2d 610, 614 (Ind. Ct. App. 1999),

       trans. denied.


[15]   Johnson contends he presented consent as a defense to the residential entry

       charge. He argues, “there is a serious evidentiary dispute as to whether

       Johnson reasonably believe he would have consent to enter a house where he

       was running from people whom he believed would harm him.” Appellant’s Br.

       pp. 16-17. We note that the word “consent” does not appear anywhere in the

       transcript of Johnson’s trial. Johnson did not testify he believed he had

       Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 8 of 9
       Brown’s permission to enter Brown’s house; to the contrary, he testified “I

       didn’t have permission to enter his home.” Tr. p. 91. Johnson also answered,

       “Right,” when the State asked him, “[Brown] did not answer the door and

       allow you into his home, correct?” Id. at 92. Although not evidence, it is

       telling that Johnson’s attorney did not argue in his closing statement that

       Johnson reasonably believed he had Brown’s permission to enter the house.

       Johnson would have been entitled to a jury instruction on his theory of defense,

       if in fact he presented any probative evidence to support that theory. Our

       review of the record reveals Johnson did not present any such evidence. As

       such, the trial court did not commit fundamental error by failing to sua sponte

       instruct the jury regarding the defense of consent.


                                                 Conclusion
[16]   There was sufficient evidence from which the jury could conclude Johnson

       committed residential entry and resisting law enforcement by fleeing. The trial

       court did not commit fundamental error by failing to sua sponte instruct the jury

       that criminal trespass is a lesser-included offense of residential entry or that

       consent is a defense to residential entry. We affirm.


       Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1511-CR-2080 | July 28, 2016   Page 9 of 9
