Milton D. Horton v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Feb 28 2017, 8:50 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Milton D. Horton, February 28, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1606-CR-1445
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Helen Marchal,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G15-1602-CM-4599
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Milton D. Horton (Horton), appeals his conviction for
battery resulting in bodily injury, a Class A misdemeanor, Ind. Code § 35-42-2-
1(b)(1); disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(2);
residential entry, a Level 6 felony, I.C. § 35-43-2-1.5; and his adjudication as an
habitual offender, I.C. § 35-50-2-8(a).
[2] We affirm.
ISSUE
[3] Horton presents us with one issue on appeal, which we restate as: Whether the
State presented sufficient evidence beyond a reasonable doubt to sustain his
conviction for residential entry, a Level 6 felony.
FACTS AND PROCEDURAL HISTORY
[4] On January 4, 2016, Keith Carter (Carter) moved into his apartment at 2120
Boulevard in Indianapolis, Indiana. While moving in, Carter met Horton who
helped him move a mattress. On February 3, 2016, Carter was asleep in his
apartment when he was woken up by the doorbell and by knocking on the door.
When he “cracked open” the door, Horton asked to be let in. (Transcript p.
28). Carter told him that he was asleep and to “come back later.” (Tr. p. 28).
Because Horton entered the apartment “a little bit,” Carter told him to “get
out.” (Tr. p. 29). Horton eventually left and Carter shut the door and locked it.
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[5] A little later, Horton returned and started kicking Carter’s door. Carter opened
the door a second time because he “didn’t want it tore up.” (Tr. p. 29). Carter
asked Horton to leave; however, Horton “smacked” him on the side of his face,
causing him pain. (Tr. p. 29). Carter was “scared;” and tried “to get him out of
[his] apartment.” (Tr. pp. 29, 34). Horton was “far enough [in the apartment]
that [Carter] couldn’t close the door.” (Tr. p. 37). He grabbed a yardstick and
started “smacking until [Horton] got out and then locked the door.” (Tr. p. 30).
Carter called the police.
[6] Indianapolis Metropolitan Police Department officers Scott Godby (Officer
Godby) and Angelika Adams-Matuszczyk (Officer Adams) responded to
Carter’s call. When the officers arrived, they found Horton outside in the
hallway, “being somewhat belligerent [and] loud.” (Tr. p. 58). Horton was
initially cooperative with Officer Adams’ requests, but “[h]is behavior was
consistent with being somewhat intoxicated” and he was “a little unstable.”
(Tr. p. 64). However, once Horton had been escorted outside the building, he
started to make “very rude and very vulgar” comments about Officer Adams.
(Tr. p. 65). Officer Godby located a “black scuff mark,” resembling “the
bottom of a dirty shoe,” on “the lower third” of Carter’s door, which the officer
noted was consistent with someone kicking a door. (Tr. pp. 60, 61, 62).
[7] On February 4, 2016, the State filed an Information, charging Horton with
battery resulting in bodily injury, a Class A misdemeanor, and disorderly
conduct, a Class B misdemeanor. On February 9, 2016, the State amended the
Information, adding a charge of residential entry, a Level 6 felony. On April 7,
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2016, the State filed an habitual offender enhancement. On April 13, 2016, the
trial court conducted a bifurcated jury trial. At the close of the evidence, the
jury found Horton guilty of battery resulting in bodily injury, disorderly
conduct, and residential entry. Horton subsequently admitted to being an
habitual offender. On June 3, 2016, the trial court sentenced Horton to 910
days for residential entry enhanced by 730 days for the habitual offender
adjudication, 365 days for battery resulting in bodily injury, and 180 days for
disorderly conduct, with sentences to run concurrently.
[8] Horton now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Horton contends that the State failed to present sufficient evidence beyond a
reasonable doubt to convict him of residential entry, a Level 6 felony. When
considering whether the evidence is sufficient to support a conviction, we
neither reassess witness credibility nor reweigh the evidence, as those tasks are
reserved for the fact-finder. West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App.
2014), trans. denied. Rather, we consider only the evidence most favorable to
the conviction, and we will affirm unless no reasonable fact-finder could find
the elements of the crime proven beyond a reasonable doubt. Id.
[10] To convict Horton of residential entry, a Level 6 felony, the State was required
to establish that Horton “knowingly or intentionally [broke] and [entered] the
dwelling of [Carter].” I.C. § 35-43-2-1.5. Focusing on the breaking and
entering element of the charge, Horton claims that “there was no showing that
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[he] was denied entry.” (Appellant’s Br. p. 9). Similarly, he maintains that
“there is no evidence that [he] used force, however slight, to gain entrance into
Carter’s apartment.” (Appellant’s Br. p. 11).
[11] “In Indiana, any breach of the threshold, however slight, by any part of the
body constitutes criminal residential entry.” Cupello v. State, 27 N.E.3d 1122,
1130 (Ind. Ct. App. 2015). Likewise, “[t]he use of the slightest force to gain
entry establishes the breaking element of this offense.” Davis v. State, 770
N.E.2d 319, 322 (Ind. 2002), reh’g denied. The opening of an unlocked door is
sufficient. Young v. State, 846 N.E.2d 1060, 1063 (Ind. Ct. App. 2006).
[12] “Lack of consent is not an element of the offense the State is required to prove.”
McKinney v. State, 653 N.E.2d 115, 115 (Ind. Ct. App. 1995). “Rather, it is the
defendant who must claim and prove the defense of consent.” Id. “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.
[13] Here, Horton did not have consent to enter Carter’s residence. The evidence
reflects that, during the second encounter, Horton kicked Carter’s door, leaving
black scuff marks on the lower part of the door. After Carter opened the door,
Horton entered the apartment far enough that Carter “couldn’t close the door.”
(Tr. p. 37). He smacked Carter on the side of his face. Carter tried to get him
out of his apartment and testified that he grabbed a yardstick and started
“smacking until [Horton] got out” and then locked the door. (Tr. p. 30).
Accordingly, based on these circumstances, we find that Horton used force to
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breach the threshold and to gain entry into Carter’s residence without Carter’s
consent.
CONCLUSION
[14] Based on the foregoing, we hold that the State presented sufficient evidence
beyond a reasonable doubt to sustain Horton’s conviction for residential entry.
[15] Affirmed.
[16] Crone, J. and Altice, J. concur
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