Daryl Barthalow v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 19 2020, 10:50 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Amy Noe Dudas Curtis T. Hill, Jr.
Richmond, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daryl Barthalow, February 19, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-710
v. Appeal from the Wayne Circuit
Court
State of Indiana, The Honorable David A. Kolger,
Appellee-Plaintiff. Judge
Trial Court Cause No.
89C01-1711-F2-20
Mathias, Judge.
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[1] Daryl Barthalow (“Barthalow”) was convicted after a jury trial in Wayne
Circuit Court of Level 3 felony burglary. Barthalow appeals and argues that the
State presented insufficient evidence to support his conviction.
[2] We affirm.
Facts and Procedural History
[3] At the time relevant to this appeal, Joshua Mays (“Joshua”) had been dating
Barthalow’s sister, Ashley. The couple broke up in early November 2017. Also
at this time, Barthalow was dating Tessa Sittloh (“Tessa”), whose cousin,
Crimson Pitcher (“Crimson”) lived with Carry Sester (“Carry”) in one side of a
duplex in Richmond, Indiana.
[4] On November 10, 2017, Crimson, who was friends with Joshua, invited him
and her cousin Tessa over to the duplex to drink. Tessa declined and decided to
spend the evening with her boyfriend, Barthalow. That evening, Tessa dropped
Joshua and Crimson off at the duplex. Inside the duplex, Joshua, Crimson, and
Carry sat on a bed, drinking alcohol and listening to music. When Tessa went
to Barthalow’s home, she told him and his brother Jonathon that Crimson was
hanging out with Joshua. Barthalow and Jonathon started talking and then left
the home.
[5] Shortly thereafter, Crimson, Carry, and Joshua were still listening on the bed
when they heard a loud bang and footsteps coming up the stairs to the second
floor, where they were located. Barthalow and Jonathon, neither of whom had
permission to enter the home, then burst into the room. Barthalow knocked
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Joshua off the bed, and then he and Jonathan beat and kicked Joshua “all over
the room.” Tr. Vol. 1, p. 157. As he attacked Joshua, Barthalow said to him
“this is for hittin’ my sister” and “you want to hit my sister.” Id. at 158; Tr. Vol.
2, p. 4. Joshua did not resist but curled up into a fetal position to protect
himself. Barthalow grabbed Joshua and attempted to throw him out the second-
story window, but Carry intervened and tried to pull Barthalow off of Joshua.
Barthalow pushed Carry against the wall and told her that what he was doing
was “none of [her] f’n business.” Tr. Vol. 1, p. 158. Carry then attempted to call
911, but Barthalow knocked the phone out of her hand. Carry’s sister, who
lived on the other side of the duplex, arrived and informed Barthalow and
Jonathon that she was calling the police. Barthalow and his brother then ceased
their attack and left.
[6] Barthalow and Jonathon returned to Barthalow’s home, where Tessa noticed
that the brothers were agitated. Barthalow and Jonathon washed their hands, as
Barthalow’s hands were bloody and injured. Tessa overheard Jonathon tell
someone on the phone that “it was taken care of.” Tr. Vol. 2, p. 21.
[7] As a result of the attack, Joshua suffered multiple injuries, including facial
contusions, a laceration on his ribcage, and a swollen ear. Joshua was “pretty
bloody” and in “a lot of pain.” Tr. Vol. 1, pp. 159, 212. Joshua’s pain was
severe enough that he was prescribed an opiate analgesic.
[8] On November 11, 2017, the State charged Barthalow with Level 2 felony
burglary resulting in serious bodily injury and Level 5 felony battery resulting in
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serious bodily injury. On October 15, 2018, the State added an additional
charge of Level 3 felony burglary resulting in bodily injury and moved to
dismiss the original charges. The trial court granted this motion, leaving only
the charge of Level 3 felony burglary. A jury trial was held on February 12–14,
2019, at the conclusion of which the jury found Barthalow guilty as charged.
On March 5, 2019, the trial court sentenced Barthalow to fourteen years of
incarceration. Barthalow now appeals.1
Standard of Review
[9] Our standard of review on challenges to the sufficiency of the evidence is well
settled. We neither reweigh the evidence nor judge the credibility of the
witnesses, and we respect the jury’s exclusive province to weigh conflicting
evidence. Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018), trans.
denied. We must consider only the probative evidence and reasonable inferences
supporting the jury’s verdict. Id. That is, we must affirm if the probative
evidence and reasonable inferences drawn from this evidence could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.
[10] To convict Barthalow of Level 3 felony burglary, the State was required to
prove that he “did break and enter the dwelling of Crimson Pitcher and/or
1
Barthalow’s brother Jonathon was convicted of Level 3 felony battery as a result of his participation in the
attack and sentenced to ten years of incarceration. See Barthalow v. State, 119 N.E.3d 204, 208 (Ind. Ct. App.
2019).
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Carry Sester . . . with intent to commit a felony or theft in it, which resulted in
bodily injury to Joshua Mays[.]” Appellant’s App. p. 43; see also Ind. Code § 35-
43-2-1(2) (defining Level 3 felony burglary as “break[ing] and enter[ing] the
building or structure of another person, with intent to commit a felony or theft
in it . . . result[ing] in bodily injury to any person other than a defendant[.]”).
Barthalow argues that the State failed to prove that, when he broke and entered
the duplex, his intent was to batter Joshua.2
[11] “Burglars rarely announce their intentions at the moment of entry[.]” Baker v.
State, 968 N.E.2d 227, 229–30 (Ind. 2012) (quoting Gilliam v. State, 508 N.E.2d
1270, 1270 (Ind. 1988)). Thus, “a burglar’s intent to commit a specific felony at
the time of the breaking and entering ‘may be inferred from the
circumstances.’” Id. at 230 (citing Gilliam, 508 N.E.2d at 1270). Indeed,
“[c]ircumstantial evidence alone is sufficient to sustain a burglary conviction.”
Id. (citation omitted). “Evidence of intent ‘need not be insurmountable,’ but
there must be a ‘specific fact that provides a solid basis to support a reasonable
inference that the defendant had the specific intent to commit a felony[.]’” Id.
(quoting Gilliam, 508 N.E.2d at 1271; Freshwater v. State, 853 N.E.2d 941, 944
(Ind. 2006)).
2
We note that, absent other circumstances, battery is a Class B misdemeanor. Ind. Code § 35-42-2-1(c).
Battery is a Class A misdemeanor if it results in bodily injury to any other person, id. at § 1(d), a Level 6
felony if it results in moderate bodily injury to any other person, id. at § 1(e), and a Level 5 felony if it results
in serious bodily injury to any other person. Id. at § 1(g).
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[12] Considering only the evidence favorable to the jury’s verdict, and the
reasonable inferences that can be drawn from this evidence, we conclude that
the jury could reasonably conclude that, when Barthalow broke and entered the
duplex, his intent was to commit the felony of battery resulting in at least
moderate bodily injury. Specifically, there was evidence that Joshua and
Barthalow’s sister had recently ended their relationship. When Barthalow and
his brother broke into the duplex, they immediately began to attack Joshua.
And as Barthalow attacked Joshua, he stated that Joshua had either hit
Barthalow’s sister or wanted to hit her.
Conclusion
[13] The jury could reasonably conclude that, when he broke and entered the
duplex, Barthalow had the intent to batter Joshua resulting in moderate bodily
injury, which is a felony. See Barthalow v. State, 119 N.E.3d 204, 210 (Ind. Ct.
App. 2019) (holding that there was evidence sufficient to establish Jonathon
Barthalow’s intent to cause moderate to serious bodily injury to Joshua where
Jonathan and his brother broke into the duplex, went upstairs, attacked Joshua,
and attempted to throw him out the window). We therefore affirm the
judgment of the trial court.
[14] Affirmed.
Kirsch, J., and Bailey, J., concur.
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