Daris Deshawn Grant 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 24 2017, 10:32 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ernest P. Galos Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daris Deshawn Grant, February 24, 2017
Appellant-Defendant, Court of Appeals Case No.
71A05-1605-CR-1174
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff Marnocha, Judge
Trial Court Cause No.
71D02-1512-F4-85
Crone, Judge.
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Case Summary
[1] Daris Deshawn Grant appeals his conviction, following a jury trial, for level 6
felony residential entry. He claims that there is insufficient evidence to sustain
his conviction. We disagree and affirm.
Facts and Procedural History
[2] The facts indicate that on December 14, 2015, South Bend police officers
responded to an activated burglar alarm at a home on Huey Street. When
officers arrived, they could hear noises coming from the basement of the home
and they observed that a window on the side of the house had the screen
removed and was open approximately five or six inches. The homeowner,
Takeisha Thomas, subsequently arrived and informed officers that no one had
permission to be in her house. She used her key to allow the officers into the
house through the locked front door. Officers began to search the home and
discovered that the back door was locked but that the window in Thomas’s
son’s bedroom was open. A television and two laptop computers were sitting
on the floor next to the open window. Thomas identified the laptops as having
been in a closet in the basement and the television as having been in her
bedroom closet. Officers discovered Grant hiding in the bathroom behind the
door. Grant was wearing gloves and carrying a flashlight and a blue sack in the
front pocket of his sweatshirt. The alarm box mounted on the living room wall
had been damaged. Thomas stated that when she left for work that morning,
the windows were shut, the doors were locked, and the alarm was set. Thomas
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further stated that she had a protective order against Grant, effective until
January 2016, and that he did not have permission to be in her house.
[3] The State charged Grant with level 4 felony burglary, class A misdemeanor
invasion of privacy, and level 6 felony invasion of privacy sentence
enhancement based on a prior conviction for invasion of privacy. Following a
jury trial, Grant was found guilty of level 6 residential entry, a lesser included
offense of burglary, and class A misdemeanor invasion of privacy. Grant
waived a jury for the sentence enhancement and, following a bench trial, was
found guilty of having a prior invasion of privacy conviction. The trial court
sentenced Grant to concurrent two-year terms. This appeal ensued.
Discussion and Decision
[4] Grant contends that the State presented insufficient evidence to support his
residential entry conviction. When reviewing a claim of insufficient evidence,
we neither reweigh the evidence nor assess witness credibility. Bell v. State, 31
N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable
inferences drawn therefrom that support the conviction, and will affirm if there
is probative evidence from which a reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. Id. In short, if the testimony
believed by the trier of fact is enough to support the conviction, then the
reviewing court will not disturb it. Id. at 500.
[5] To prove the offense of residential entry, the State was required to prove that
Grant knowingly or intentionally broke and entered Thomas’s dwelling. See
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Ind. Code § 35-43-2-1.5. Grant argues that the State failed to prove that a
breaking occurred because there was insufficient evidence that he entered
Thomas’s home by opening the window. In order to establish that a breaking
has occurred, the State need only introduce evidence from which the trier of
fact could reasonably infer that the slightest force was used to gain
unauthorized entry. Young v. State, 846 N.E.2d 1060, 1063 (Ind. Ct. App.
2006). The element of breaking may be proved by entirely circumstantial
evidence. Utley v. State, 589 N.E.2d 232, 240-41 (Ind. 1992).
[6] The evidence indicates that officers who responded to the activated burglar
alarm at Thomas’s house observed an open window with the screen removed.
Thomas testified that all windows were closed and the doors were locked when
she left for work that morning, and officers observed both the front and back
door still locked when they arrived. Thomas further testified that she never
gave Grant a key to her house. While Grant points to his self-serving testimony
in which he denied opening the closed window and claimed that he entered the
home through the back door with a key, it was the jury’s role, not ours, to
assess witness credibility and to weigh the evidence. Hinton v. State, 52 N.E.3d
1, 2 (Ind. Ct. App. 2016). The State presented sufficient evidence from which
the jury reasonably could have inferred that Grant removed the screen and
opened the window to gain entry into Thomas’s house, and thus that he broke
and entered her house.
[7] Grant maintains that he reasonably believed that he had Thomas’s consent to
enter her home. Lack of consent is not an element of the offense that the State
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is required to prove. Townsend v. State, 33 N.E.3d 367, 373 (Ind. Ct. App.
2015). “Rather, it is the defendant who must claim and prove the defense of
consent. 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. (citation and quotation marks omitted). Once a defendant successfully
raises the defense of consent, the State has the burden of disproving the defense
beyond a reasonable doubt. Holman v. State, 816 N.E.2d 78, 81 (Ind. Ct. App.
2004), trans. denied (2005).
[8] Here, there is no evidence that Grant’s alleged belief that he had permission to
enter Thomas’s home was reasonable, and therefore he cannot avail himself of
the defense of consent. Grant stated that his belief that he had permission to
enter Thomas’s home was based upon the fact that a third party had given him
permission and that Thomas had given him a key to enter her home. Thomas’s
testimony contradicted Grant’s claims, as she denied ever giving Grant a key to
her home or that a third party would have authority to give Grant permission.
Moreover, Grant’s entry through a window is inconsistent with one who
reasonably believed that he had permission to enter a dwelling. Grant’s
arguments are simply a request for us to reweigh the evidence and reassess
witness credibility, and we will not. The State presented sufficient evidence to
support his residential entry conviction.
[9] Affirmed.
Riley, J., and Altice, J., concur.
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