Kevin Terry v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 06 2016, 6:36 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
Joel C. Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Ellen Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Terry, December 6, 2016
Appellant-Defendant, Court of Appeals Case No.
11A05-1605-CR-1010
v. Appeal from the Clay Circuit
Court
State of Indiana, The Honorable Joseph D. Trout,
Appellee-Plaintiff. Judge
Trial Court Cause No.
11C01-1509-F1-660
Bradford, Judge.
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Case Summary
[1] During the early morning hours of September 30, 2015, Appellant-Defendant
Kevin Terry forcibly entered the garage of Darlene Greenley. Upon entering
Greenley’s garage, Terry, who was accompanied by a pit bull and armed with a
machete, demanded that Greenley let him in her home. These demands where
threatening in nature. Greenley notified the police. When the police arrived,
Terry was placed under arrest. During a search incident to Terry’s arrest, police
recovered two condoms, a sexual device, and a baggie containing what was
later determined to be methamphetamine.
[2] Terry was subsequently charged with (1) Level 1 felony attempted rape, (2)
Level 2 felony attempted burglary, (3) Level 5 felony intimidation, (4) Level 6
felony attempted residential entry, (5) Level 6 felony possession of
methamphetamine, and (6) Class A misdemeanor criminal mischief. Following
a jury trial, Terry was found guilty of attempted burglary, intimidation,
attempted residential entry, possession of methamphetamine, and criminal
mischief. The trial court subsequently merged the attempted residential entry
conviction with the attempted burglary conviction and sentenced Terry to an
aggregate twenty-five year term.
[3] On appeal, Terry challenges the sufficiency of the evidence to sustain his
attempted burglary conviction. Concluding that the evidence is sufficient to
sustain the challenged conviction, we affirm.
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Facts and Procedural History
[4] Greenley arrived home from her shift as a registration clerk at the Putnam
County Hospital at approximately 1:40 a.m. on September 30, 2015. Upon
arriving home, Greenley parked her vehicle in her home’s attached garage. The
garage door was broken, so Greenley used a pole placed inside the tracking to
prop the door up and keep it open. Greenley went into her home through the
door in the garage, leaving the garage door propped open. After entering her
home, Greenley locked and deadbolted the door. She also placed a dining
room chair underneath the doorknob as extra security.
[5] A few minutes later, Greenley heard the garage door crash down. She ran to
the door to confirm by pulling back the curtain to look through a glass panel
into the garage. Greenley observed Terry, a shirtless “very large man” standing
in her garage with a leashed pit bull and armed with a machete. Tr. p. 258.
Terry, who was holding the machete blade towards Greenley “in a threatening
manner,” said “You have a big, black n[*****] in your garage now b[****].
What you gonna do?” Tr. p. 259. Greenley responded, “Call the cops. Get
out of my house.” Tr. p. 259. Greenley then screamed for one of her two
daughters who were present in the home to bring her the telephone so that she
could call 911.
[6] While Greenley called 911, her daughter sat on the floor against the door and
used the car keys to continuously hit the panic button to sound the car alarm.
While Greenley’s daughter continued to hit the panic button, Terry said to
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“Turn off the alarm,” tr. p. 325, and to “Just open the door. Let me in.” Tr. p.
283. Greenley and her two daughters then heard loud banging noises from the
garage. Terry also indicated that Greenley was a “dumb white b[****] who
hasn’t been f[*****] and needed to get some.” Tr. p. 325.
[7] When the police arrived, Greenley led the responding officers to her garage
through her residence, as they could not enter the garage any other way. Once
in the garage, the responding officers saw the machete on the hood of
Greenley’s vehicle with about half of the blade stuck in between the hood and
the front quarter panel. They also observed Terry. When the responding
officers instructed Terry to leave the garage, he told them that his dog was
“vicious” and could not be let go. Tr. p. 345. Greenley provided the officers
with a leash to tie the dog to the railing of the garage. Terry was then placed
under arrest and escorted from the garage.
[8] During a search incident to Terry’s arrest, officers recovered the following from
Terry’s person: (1) two Trojan brand condoms, (2) a silver metal ring, and (3) a
plastic white container holding a baggie of what was later determined to be .65
grams of methamphetamine. The silver ring found on Terry was determined to
be a steel “cock ring” which is a sexual device used by men to “restrict blood
flow of the penis so that an erection is sustained for a longer period” of time.
Tr. p. 486.
[9] It was subsequently determined that Terry had caused approximately $3000
worth of damage to Greenley’s vehicle. Terry also caused damage to the door
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into the home that appeared to be hack or slash marks that appeared to be
caused by the point of the machete.
[10] On September 30, 2015, Appellee-Plaintiff the State of Indiana (“the State”)
charged Terry with the following crimes: (1) Level 1 felony attempted burglary,
(2) Level 1 felony attempted rape, (3) Level 6 felony possession of
methamphetamine, and (4) Class A misdemeanor criminal mischief. The State
subsequently filed an amended charging information in which it reduced the
attempted burglary charge from a Level 1 to Level 2 felony and added charges
of Level 5 felony intimidation and Level 6 felony attempted residential entry.
[11] The case proceeded to trial, at the conclusion of which the jury found Terry
guilty of attempted burglary, intimidation, criminal mischief, possession of
methamphetamine, and attempted residential entry but not guilty of attempted
rape. During an April 5, 2016 sentencing hearing, the trial court merged the
conviction of Level 6 felony attempted residential entry into the Level 2 felony
attempted burglary and sentenced Terry to an aggregate term of twenty-five
years. This appeal follows.
Discussion and Decision
[12] Terry contends that the evidence is insufficient to sustain his conviction for
Level 2 felony attempted burglary.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
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the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “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) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
[13] Indiana Code section 35-43-2-1 provides that “[a] person who breaks and enters
the building or structure of another person, with intent to commit a felony or
theft in it, commits burglary, a Level 5 felony.” However, the offense is a Level
2 felony if it: “(A) is committed while armed with a deadly weapon; or (B)
results in serious bodily injury to any person other than a defendant[.]” Ind.
Code § 35-43-2-1(3). Indiana Code section 35-41-5-1(a) further provides that
“[a] person attempts to commit a crime when, acting with the culpability
required for commission of the crime, the person engages in conduct that
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constitutes a substantial step toward commission of the crime.” “An attempt to
commit a crime is a felony or misdemeanor of the same level or class as the
crime attempted.” Ind. Code § 35-41-5-1(a). Thus, in order to prove that Terry
committed the charged Level 2 felony offense, the State was required to prove
that Terry, while armed with a deadly weapon, attempted to break and enter
the building of another with the intent to commit a felony or theft therein.
[14] In challenging his conviction, Terry argues that the evidence is insufficient to
prove that he had the requisite mens rea, i.e., that he intended to commit a
felony or theft once inside Greenley’s home. “Intent, being a mental state, can
only be established by considering the behavior of the relevant actor, the
surrounding circumstances, and the reasonable inferences to be drawn
therefrom.” Richardson v. State, 856 N.E.2d 1222, 1227 (Ind. Ct. App. 2006)
(citing Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003), trans. denied).
The Indiana Supreme Court has held that in order to sufficiently prove a
burglary charge, “the State must prove a specific fact that provides a solid basis
to support a reasonable inference that the defendant had the specific intent to
commit a felony.” Freshwater v. State, 853 N.E.2d 941, 944 (Ind. 2006). The
evidence to prove intent, however, “need not be insurmountable, but only
provide a solid basis to support a reasonable inference that the defendant
intended to commit the underlying felony charged.” Gilliam v. State, 508
N.E.2d 1270, 1271 (Ind. 1987). “In other words, the evidence must support
each inference—felonious intent and breaking and entering—independently,
and neither inference should rely on the other for support.” Baker v. State, 968
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N.E.2d 227, 230 (Ind. 2012). “This is not to say, however, that the same piece
of evidence cannot support both inferences.” Id.[15] Here, the State alleged that Terry intended to commit either the felony of rape
or battery. At the time of his attempted entry into Greenley’s home, Terry (1)
was not wearing a shirt, (2) was armed with a machete, (3) had what he
described to be a “vicious” pit bull with him, tr. p. 345, (4) acted in a
threatening manner, and (5) had condoms and a steel “cock ring” on his
person. Tr. p. 486. Again, a “cock ring” is a sexual device used by men in an
effort to sustain an erection “for a longer period” of time. Tr. p. 486. Terry
also made comments indicating that Greenley was a “dumb white b[****] who
hasn’t been f[*****] and needed to get some.” Tr. p. 325. One could also
reasonably infer that Terry attempted to conceal himself in Greenley’s garage
by causing the garage door to close.
[16] Upon review, we conclude that Terry’s statements, together with (1) the
threatening manner which he acted, (2) the condoms and sexual device
recovered from Greenley’s person, and (3) the inference that he actively tried to
conceal himself in Greenley’s garage are sufficient to create a reasonable
inference that Terry intended to commit the felony of rape once inside
Greenley’s home. Terry’s claim to the contrary amounts to nothing more than
an invitation for this court to reweigh the evidence, which we will not do. See
Stewart, 768 N.E.2d 433, 435.
[17] The judgment of the trial court is affirmed.
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Vaidik, C.J., and Brown, J., concur.
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