MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 24 2017, 10:32 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ernest P. Galos                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Daris Deshawn Grant,                                     February 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1605-CR-1174
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff                                       Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1512-F4-85



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1605-CR-1174 | February 24, 2017      Page 1 of 5
                                             Case Summary
[1]   Daris Deshawn Grant appeals his conviction, following a jury trial, for level 6

      felony residential entry. He claims that there is insufficient evidence to sustain

      his conviction. We disagree and affirm.


                                 Facts and Procedural History
[2]   The facts indicate that on December 14, 2015, South Bend police officers

      responded to an activated burglar alarm at a home on Huey Street. When

      officers arrived, they could hear noises coming from the basement of the home

      and they observed that a window on the side of the house had the screen

      removed and was open approximately five or six inches. The homeowner,

      Takeisha Thomas, subsequently arrived and informed officers that no one had

      permission to be in her house. She used her key to allow the officers into the

      house through the locked front door. Officers began to search the home and

      discovered that the back door was locked but that the window in Thomas’s

      son’s bedroom was open. A television and two laptop computers were sitting

      on the floor next to the open window. Thomas identified the laptops as having

      been in a closet in the basement and the television as having been in her

      bedroom closet. Officers discovered Grant hiding in the bathroom behind the

      door. Grant was wearing gloves and carrying a flashlight and a blue sack in the

      front pocket of his sweatshirt. The alarm box mounted on the living room wall

      had been damaged. Thomas stated that when she left for work that morning,

      the windows were shut, the doors were locked, and the alarm was set. Thomas



      Court of Appeals of Indiana | Memorandum Decision 71A05-1605-CR-1174 | February 24, 2017   Page 2 of 5
      further stated that she had a protective order against Grant, effective until

      January 2016, and that he did not have permission to be in her house.


[3]   The State charged Grant with level 4 felony burglary, class A misdemeanor

      invasion of privacy, and level 6 felony invasion of privacy sentence

      enhancement based on a prior conviction for invasion of privacy. Following a

      jury trial, Grant was found guilty of level 6 residential entry, a lesser included

      offense of burglary, and class A misdemeanor invasion of privacy. Grant

      waived a jury for the sentence enhancement and, following a bench trial, was

      found guilty of having a prior invasion of privacy conviction. The trial court

      sentenced Grant to concurrent two-year terms. This appeal ensued.


                                     Discussion and Decision
[4]   Grant contends that the State presented insufficient evidence to support his

      residential entry conviction. When reviewing a claim of insufficient evidence,

      we neither reweigh the evidence nor assess witness credibility. Bell v. State, 31

      N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable

      inferences drawn therefrom that support the conviction, and will affirm if there

      is probative evidence from which a reasonable factfinder could have found the

      defendant guilty beyond a reasonable doubt. Id. In short, if the testimony

      believed by the trier of fact is enough to support the conviction, then the

      reviewing court will not disturb it. Id. at 500.


[5]   To prove the offense of residential entry, the State was required to prove that

      Grant knowingly or intentionally broke and entered Thomas’s dwelling. See

      Court of Appeals of Indiana | Memorandum Decision 71A05-1605-CR-1174 | February 24, 2017   Page 3 of 5
      Ind. Code § 35-43-2-1.5. Grant argues that the State failed to prove that a

      breaking occurred because there was insufficient evidence that he entered

      Thomas’s home by opening the window. 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. Young v. State, 846 N.E.2d 1060, 1063 (Ind. Ct. App.

      2006). The element of breaking may be proved by entirely circumstantial

      evidence. Utley v. State, 589 N.E.2d 232, 240-41 (Ind. 1992).


[6]   The evidence indicates that officers who responded to the activated burglar

      alarm at Thomas’s house observed an open window with the screen removed.

      Thomas testified that all windows were closed and the doors were locked when

      she left for work that morning, and officers observed both the front and back

      door still locked when they arrived. Thomas further testified that she never

      gave Grant a key to her house. While Grant points to his self-serving testimony

      in which he denied opening the closed window and claimed that he entered the

      home through the back door with a key, it was the jury’s role, not ours, to

      assess witness credibility and to weigh the evidence. Hinton v. State, 52 N.E.3d

      1, 2 (Ind. Ct. App. 2016). The State presented sufficient evidence from which

      the jury reasonably could have inferred that Grant removed the screen and

      opened the window to gain entry into Thomas’s house, and thus that he broke

      and entered her house.


[7]   Grant maintains that he reasonably believed that he had Thomas’s consent to

      enter her home. Lack of consent is not an element of the offense that the State

      Court of Appeals of Indiana | Memorandum Decision 71A05-1605-CR-1174 | February 24, 2017   Page 4 of 5
      is required to prove. Townsend v. State, 33 N.E.3d 367, 373 (Ind. Ct. App.

      2015). “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.”

      Id. (citation and quotation marks omitted). Once a defendant successfully

      raises the defense of consent, the State has the burden of disproving the defense

      beyond a reasonable doubt. Holman v. State, 816 N.E.2d 78, 81 (Ind. Ct. App.

      2004), trans. denied (2005).


[8]   Here, there is no evidence that Grant’s alleged belief that he had permission to

      enter Thomas’s home was reasonable, and therefore he cannot avail himself of

      the defense of consent. Grant stated that his belief that he had permission to

      enter Thomas’s home was based upon the fact that a third party had given him

      permission and that Thomas had given him a key to enter her home. Thomas’s

      testimony contradicted Grant’s claims, as she denied ever giving Grant a key to

      her home or that a third party would have authority to give Grant permission.

      Moreover, Grant’s entry through a window is inconsistent with one who

      reasonably believed that he had permission to enter a dwelling. Grant’s

      arguments are simply a request for us to reweigh the evidence and reassess

      witness credibility, and we will not. The State presented sufficient evidence to

      support his residential entry conviction.


[9]   Affirmed.


      Riley, J., and Altice, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1605-CR-1174 | February 24, 2017   Page 5 of 5
