Arturo Martinez, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 24 2016, 8:41 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Jerry T. Drook Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arturo Martinez, Jr., June 24, 2016
Appellant-Defendant, Court of Appeals Case No.
27A02-1511-CR-1981
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Warren Haas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D03-1406-FD-244
27D03-1504-F6-133
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 1 of 6
[1] Arturo Martinez, Jr. appeals his conviction after a jury trial of Level 6 felony
attempted residential entry. 1 He argues the evidence was insufficient to support
his conviction because the State did not prove he acted with the requisite intent
or took a substantial step toward commission of the crime. Because the
evidence was sufficient for the jury to find Martinez guilty beyond a reasonable
doubt, we affirm.
Facts and Procedural History
[2] On April 9, 2015, Amber Meeks lived close to a building where Martinez had
been living for about a month. Sometime in the early evening, Meeks,
Martinez, and their mutual acquaintance, Michael Shrout, chatted briefly.
Meeks and Shrout then left to retrieve Meeks’ vehicle.
[3] About thirty minutes later, Meeks and Shrout returned together in Meeks’
vehicle. As they turned into the alley, the vehicle’s headlights pointed directly
at Meek’s front door. Meeks and Shrout saw Martinez at her door on his knees
holding a flashlight in one hand and some object in the other. Meeks described
the object in his hand as a screwdriver, while Shrout was not able to identify it.
Meeks shouted at Martinez and asked him what he was doing. He turned to
face them and, without responding, ran to his apartment. Meeks and Shrout
1
Ind. Code § 35-43-2-1.5.
Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1981 | June 24, 2016 Page 2 of 6
both noticed fresh damage to the door, and Meeks called 911 to report a
burglary.
[4] Officer Humberto Antonio Arauz responded to the call. Officer Arauz also
noticed the damage to Meeks’ door and agreed that it looked as if someone
tried to pry the door open. Officer Arauz and another officer banged on
Martinez’s door and windows, but Martinez did not answer the door.
Approximately twenty minutes later, Martinez exited his residence and
explained to Officer Arauz that he took his trash out around 12:19 a.m. and
heard Meeks yell, but thought that she was arguing with Shrout, so he went
back inside.
[5] The State charged Martinez with Level 6 felony attempted residential entry.
After a jury found him guilty, the trial court entered a judgment of conviction.
Discussion and Decision
[6] When reviewing sufficiency of the evidence in support of a conviction, we
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The
verdict comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the jury. Id.We do not assess witness credibility, nor do we reweigh the
evidence to determine if it was sufficient to support a conviction.
Under our appellate system, those roles are reserved for the
finder of fact . . . . [We] affirm the conviction unless no
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reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. This evidence need not overcome
every reasonable hypothesis of innocence; it is sufficient so long
as an inference may reasonably be drawn from it to support the
verdict.
Pillow v. State, 986 N.E.2d 343, 344-45 (Ind. Ct. App. 2013) (internal citations
and quotations omitted).
[7] The elements of Level 6 felony attempted residential entry are met when a
person knowingly or intentionally performs a substantial step toward breaking
and entering the dwelling of another. Ind. Code § 35-41-5-1 (attempt); Ind.
Code § 35-43-2-1.5 (residential entry). A substantial step is any overt act
beyond mere preparation and in furtherance of an intent to commit the crime.
Williams v. State, 685 N.E.2d 730, 734 (Ind. Ct. App. 1997). To show a
breaking occurred, the State need only introduce evidence that the slightest
force was used, which could even be pushing open a slightly ajar door. Jenkins
v. State, 34 N.E.3d 258, 261 (Ind. Ct. App. 2015), trans. denied.
[8] Martinez argues the evidence was insufficient for two reasons. First, he
contends there was a lack of evidence he intended to break and enter Meeks’
house. Second, he claims his actions were not a substantial step. In support
thereof, he notes no tool was conclusively identified, and Meeks and Shrout did
not see him prying on the door. He contends his presence near Meeks’ door,
without more, is not enough to prove the elements of attempted residential
entry beyond a reasonable doubt. While true, there is more.
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[9] The facts most favorable to the judgment show that Martinez knew Meeks and
Shrout would be gone. Meeks and Shrout both saw Martinez directly in front
of Meeks’ door on his knees with a flashlight and some other object in his hand.
Martinez “took off running” back to his apartment when Meeks yelled at him.
(Tr. 38). There was fresh damage to the door as if someone had tried to pry it
open.
[10] The evidence is not insufficient simply because the object in Martinez’s hand
was not conclusively identified. See Word v. State, 261 N.E.2d 225, 227 (Ind.
1970) (sufficient evidence to establish a breaking where a screwdriver was used
to gain entry to a car leaving pry marks on the door, even though no eyewitness
conclusively identified the object, proved the pry marks were made when Word
entered, or proved the screwdriver belonged to him). Nor is the evidence
insufficient simply because they did not see him prying, when he had a tool and
left pry marks on the door. See Jenkins, 34 N.E.3d at 261 (pushing open a
slightly ajar door is breaking). Rather, from the evidence presented, the jury
could reasonably infer Martinez knowingly or intentionally performed the
substantial step of prying on the door for the purpose of breaking and entering
into Meeks’ dwelling. See Peak v. State, 520 N.E.2d 465, 467-68 (Ind. Ct. App.
1988) (sufficient evidence supported attempt to break and enter where Peak was
unsuccessful in kicking down door and fled after seeing police). Martinez’s
arguments are an invitation to reweigh the evidence, which we cannot do. See
Pillow, 986 N.E.2d at 344-45.
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Conclusion
[11] Sufficient evidence supported Martinez’s conviction of Level 6 felony attempted
residential entry. Accordingly, we affirm.
[12] Affirmed.
Baker, J., and Brown, J., concur.
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