Robert Wayne Day 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 Dec 11 2019, 7:48 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
Suzy St. John Curtis, T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Wayne Day, December 11, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-568
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Barbara Crawford,
Appellee-Plaintiff Judge
The Honorable Amy J. Barbar,
Magistrate
Trial Court Cause No.
49G01-1606-F5-24381
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019 Page 1 of 7
Case Summary
[1] Following a bench trial, Robert Day was convicted of Level 5 felony attempted
burglary and Class A misdemeanor resisting law enforcement. On appeal, Day
challenges the sufficiency of the State’s evidence with respect to only his
conviction for attempted burglary.
[2] We affirm.
Facts & Procedural History
[3] In the early morning hours of June 21, 2016, Officers Derek Loyal and Aaron
Tate from the Lawrence Police Department responded to an alarm at the local
Veterans of Foreign Wars post (the VFW). Upon exiting their vehicles at the
front (south side) of the VFW, the officers heard a loud banging coming from
the west side of the building. When they followed the noise to its source, the
officers saw Day repeatedly striking the back door of the building with a
hammer. Officer Loyal called out to Day, “Stop, Lawrence Police. Show us
your hand.” Transcript Vol. II at 9. Day turned toward the officers, raised the
hammer as if to throw it, but then dropped the hammer and took off running
westbound toward a tree line. Officer Tate unsuccessfully deployed his taser as
Day reached the tree line and then Officer Loyal continued to chase Day on
foot through a parking lot and then across Thunderbird Road.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019 Page 2 of 7
[4] After apprehending Day in a field across the road, Officers Loyal and Tate
inspected the area and observed damage to the VFW building. Specifically, the
metal weather stripping had been ripped off the side door and all the exterior
wires to the building had been cut. A walkie talkie was recovered near the
door Day had been striking, and the claw hammer was found nearby. Officer
Loyal also noticed a vehicle parked in a lot just west of the tree line through
which Day had fled. The truck was backed in at an angle and parked partially
in the grass and away from the designated parking spots. Inside the vehicle, in
open view, was a pair of large bolt cutters and a small sledgehammer on the
passenger seat.
[5] John Armstrong, a member of the VFW, arrived on the scene shortly after the
alarm sounded. Armstrong walked the grounds and identified the damage to
the door and wiring of the building. Additionally, he noticed that an outside
barn on the northwest side of the VFW property had been burglarized.
According to Armstrong, the lock to the barn had been cut off, the doors were
opened, and the “stuff that was in it” had been removed and was “sitting
outside of the barn.” Id. at 30.
[6] On June 23, 2016, the State charged Day with Count 1, attempted burglary, a
Level 5 felony; Count 2, resisting law enforcement, a Class A misdemeanor;
and Count 3, criminal mischief, a Class A misdemeanor. The trial court found
Day guilty of both Counts 1 and 2 but did not enter a judgment of conviction
on Count 3 because it would “merge” with Count 1. Transcript Vol. II at 51. A
sentencing hearing was held on February 12, 2019, at which the trial court
Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019 Page 3 of 7
imposed a four-year executed sentence. Day now appeals, challenging the
sufficiency of the evidence to support his conviction for attempted burglary.
Discussion & Decision
[7] In reviewing the sufficiency of evidence, we consider only the probative
evidence and reasonable inferences supporting the conviction. Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses
or reweigh the evidence, and we will affirm unless no reasonable factfinder
could find the elements of the crime proven beyond a reasonable doubt. Id. It
is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence will be found sufficient if an inference may
reasonably be drawn from it to support the conviction. Id. at 147. A conviction
may be based purely on circumstantial evidence if that evidence supports a
reasonable inference of guilt. Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).
[8] In Indiana, a person commits Level 5 felony burglary by breaking and entering
the building or structure of another person with intent to commit a felony or
theft inside. See Ind. Code § 35-43-2-1. A person is guilty of attempt when,
acting with the culpability required for commission of the crime, he engages in
conduct constituting a substantial step toward commission of the crime. Ind.
Code § 35-41-5-1(a).
[9] Day argues that the State failed to prove that he intended to burglarize the
VFW rather than simply vandalize its exterior. More specifically, he asserts:
“[A]ny evidence Day intended to take the further step of burglarizing the VFW
Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019 Page 4 of 7
is vague speculation, requiring imagination or conjecture to draw inferences of
guilt. The evidence in the record reveals no rational course of conduct aimed at
committing a burglary.” Appellant’s Brief at 10. We do not agree.
[10] “Specific intent in an attempted burglary action does not prescribe a requisite
level of mens rea for the burglary itself, but rather requires that the defendant
intended to commit the underlying felony [or theft] once he broke into and
entered onto the premises.” Richeson v. State, 704 N.E.2d 1008, 1009 n.1 (Ind.
1998). It is well established that, regarding the intent element of burglary, the
intent to commit a felony or theft inside may not be inferred from proof of
breaking and entering alone. Freshwater v. State, 853 N.E.2d 941, 943 (Ind.
2006). Further, flight alone may not be used to infer that intent. Id. However,
these facts may combine with other evidence to establish the actor’s intent, such
as removal of property from the premises. Id. The additional evidence need
not be “insurmountable,” but it must provide “a solid basis to support a
reasonable inference that the defendant had the specific intent to commit theft.”
Id. (citing Justice v. State, 530 N.E.2d 295, 296 (Ind. 1988)).
[11] Here, the State established that around four o’clock in the morning Day was
discovered by officers repeatedly striking on the back door of the VFW building
with a clawed hammer. In his efforts, Day had pried away the metal weather
stripping around the door in an apparent attempt to gain entry. The wiring to
the building had been cut, including the security cables. These facts indicate a
desire to avoid detection while attempting to break and enter the VFW.
Additional facts also suggest that Day might have been communicating and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019 Page 5 of 7
working with someone else through the walkie talkie and that he had a truck
nearby to assist in moving any stolen items. In fact, when confronted by police,
Day fled westbound in the direction of the curiously parked truck, which
contained bolt cutters and other tools. As the officers pursued him, Day
continued through the parking lot and across a street into a field.
[12] In addition to the above facts, the State presented evidence that an outbuilding
on the VFW’s property, the northwest side of the property, had been broken
into. The lock was cut off, the doors were opened, and property from inside the
barn had been moved to the outside. The burglary of the outbuilding, though
not charged, appeared to be part of a coordinated criminal episode that
morning. Thus, we agree with the trial court that the evidence regarding the
outbuilding was indicative of Day’s intent with respect to the main VFW
building. See Timmons v. State, 500 N.E.2d 1212, 1215 (Ind. 1986) (“This Court
has previously indicated that evidence of a burglary predicated on theft which
was committed during the course of a criminal episode that included an
attempted burglary may be sufficient evidence to infer the specific intent
requisite for the attempted burglary conviction.”).
[13] We conclude that it was reasonable for the trial court to infer Day’s intent to
commit a theft inside the VFW building based on the totality of the
circumstances presented at trial. Moreover, we reject Day’s attempt to have us
reweigh each piece of evidence in isolation.
[14] Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019 Page 6 of 7
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-568 | December 11, 2019 Page 7 of 7