MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                   Mar 23 2015, 9:17 am
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 Frischkorn                                       Gregory F. Zoeller
Frischkorn Law LLC                                       Attorney General of Indiana
Fortville, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Antonio Johnson,                                         March 23, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A05-1410-CR-489
        v.                                               Appeal from the Hancock Superior
                                                         Court 1
State of Indiana,                                        The Honorable Terry K. Snow,
                                                         Judge
Appellee-Plaintiff
                                                         Case No. 30D01-1406-FB-1043




Vaidik, Chief Judge



                                      Case Summary
Antonio Johnson was convicted of burglary as a Class B felony and attempted

theft as a Class D felony. He now appeals and argues that the evidence is


Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015    Page 1 of 6
      insufficient to support his convictions. We find sufficient evidence to support

      Johnson’s Class B felony burglary and Class D felony attempted-theft

      convictions because the fact that Johnson opened drawers in the Flicks’ master

      bedroom supports an inference that Johnson intended to commit theft as the

      underlying felony in the burglary conviction and is sufficient to prove that

      Johnson engaged in conduct that constituted a substantial step toward exerting

      unauthorized control over the Flicks’ property with intent to deprive the Flicks

      of any part of its value or use. We therefore affirm his convictions.



                            Facts and Procedural History
[1]   At approximately 1:00 p.m. on June 20, 2014, Erin Flick took two of her

      children shopping while her fourteen-year-old daughter Emma stayed home.

      Fifteen minutes after her mother and siblings left their house in Greenfield,

      Emma, who was upstairs in her bedroom, heard someone ring the front

      doorbell twice. She then heard the family’s dogs run to the back of the house.

      Emma looked out her bedroom window on the back side of the house and saw

      Johnson and another man standing on the back deck looking into the house.

      The men were also putting on latex gloves.


[2]   Emma telephoned her mother, who told Emma to call 911. While she was

      talking to the 911 dispatcher, Emma heard Johnson and the other man force

      open the back door just below her bedroom, which led to her parents’ master

      bedroom. She also heard the two men attempting to quiet her dogs.



      Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015   Page 2 of 6
[3]   When police officers arrived at the scene, they found Johnson and the other

      man walking down the street three houses away from the Flicks’ house. Emma

      came out of the house and identified the two men as those who had just forced

      open the back door to her house. The officers found latex gloves on the ground

      nearby.


[4]   When Emma’s parents arrived home, they noticed that the screen door to the

      first-floor master bedroom had been cut and the exterior door to the room had

      been forced open. Erin also noticed that the drawers in the master bedroom

      were open. Nothing was missing from the house.


[5]   The State charged Johnson with Class B felony burglary for breaking and

      entering the Flick family’s dwelling with intent to commit theft therein and

      Class D felony attempted theft for taking a substantial step toward exerting

      unauthorized control over the Flicks’ property by forcing entry and going

      through contents of the dwelling. Appellant’s App. p. 44.


[6]   At trial, Erin testified that the drawers in her bedroom had not been open when

      she left the house. A jury convicted Johnson of both charges, and the trial court

      sentenced him to ten years for the Class B felony, with four years executed and

      six years suspended to probation, and two years for the Class D felony, with the

      sentences to run concurrently. Johnson appeals his convictions.



                                Discussion and Decision


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[7]   Johnson argues that there is insufficient evidence to support his convictions for

      Class B felony burglary and Class D felony attempted theft. When reviewing

      the sufficiency of the evidence to support a conviction, we do not reweigh the

      evidence or judge the credibility of the witnesses. Gorman v. State, 968 N.E.2d

      845, 847 (Ind. Ct. App. 2012), trans. denied. We consider only the probative

      evidence and the reasonable inferences therefrom that support the conviction.

      Id. We will affirm if the probative evidence and reasonable inferences from that

      evidence could have allowed a reasonable trier of fact to find the defendant

      guilty beyond a reasonable doubt. Id.


[8]   To convict Johnson of Class B felony burglary, the State had to prove that he

      broke and entered the Flicks’ dwelling with the intent to commit theft therein.

      See Ind. Code Ann. 35-43-2-1 (West 2012). Johnson’s sole contention is that

      the “evidence presented at trial does not support the conclusion[] that [he] had

      the requisite intent to commit theft in the house.” Appellant’s Br. p. 4.


[9]   Intent, like the other elements of burglary, is a question of fact. McBride v. State,

      597 N.E.2d 992, 994 (Ind. Ct. App. 1992). Burglars rarely announce their

      intentions at the moment of entry, so the intent to commit a given felony is a

      fact that may be inferred from the circumstances. Gilliam v. State, 508 N.E.2d

      1270, 1271 (Ind. 1987), reh’g denied. The evidence must provide a solid basis to

      support a reasonable inference that the defendant intended to commit the

      underlying felony. Cash v. State, 557 N.E.2d 1023, 1024 (Ind. 1990), reh’g

      denied.



      Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015   Page 4 of 6
[10]   Baker v. State, 968 N.E.2d 227 (Ind. 2012), is instructive. There, Baker broke

       and entered a church, but nothing was missing. A jury convicted Baker of

       Class B felony burglary, and on appeal, like Johnson, he argued that there was

       insufficient evidence of his intent to commit theft within the church. This

       Court agreed and reversed Baker’s conviction. See Baker v. State, No. 89A01-

       1010-CR-536 at 4 (Ind. Ct. App. June 17, 2011).


[11]   The Indiana Supreme Court, however, granted transfer and affirmed Baker’s

       conviction. Baker, 968 N.E.2d at 229. Specifically, the Court pointed out that

       there was evidence that Baker had been in the church kitchen and had opened

       several cupboards and drawers. The Court explained that this “evidence,

       standing alone, permit[ted] a reasonable inference of the defendant’s felonious

       intent at the time of entry. . . . The opening of cabinets and drawers by an

       intruder suggests, among other things, that the person opening them was

       looking for something to take.” Id. at 231.


[12]   Likewise, here, there was evidence that Johnson opened several drawers in the

       Flicks’ master bedroom. As in Baker, the opening of these drawers suggests that

       Johnson was looking for something to take and supports an inference of intent

       to commit theft. There is sufficient evidence to support Johnson’s Class B

       felony burglary conviction.


[13]   Johnson also argues that there is insufficient evidence to support his Class D

       felony attempted-theft conviction. To convict Johnson of attempted theft, the

       State had to prove that he engaged in conduct that constituted a substantial step


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toward exerting unauthorized control over the Flicks’ property with intent to

deprive the Flicks of any part of its value or use. See Ind. Code Ann. §§ 35-43-4-

2 (2012) and 35-41-5-1 (2012). Evidence that Johnson opened several drawers

in the Flicks’ master bedroom suggests that Johnson was looking for something

to take and was engaged in conduct that constituted a substantial step toward

exerting unauthorized control over the Flicks’ property with intent to deprive

the Flicks of its use or value. This evidence is sufficient to support Johnson’s

conviction of attempted theft as a Class D felony.


Affirmed.


Kirsch, J., and Bradford, J., concur.




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