Thomas Curry v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
FILED
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the Jan 03 2012, 9:10 am
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN D. RAYL GREGORY F. ZOELLER
Smith Rayl Law Office, LLC Attorney General of Indiana
Indianapolis, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS CURRY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1106-CR-551
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
The Honorable Amy J. Barber, Magistrate
Cause No. 49G02-1101-FC-4542
January 3, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Thomas Curry appeals his conviction of burglary as a class C felony.1
We affirm.
ISSUE
Whether there is sufficient evidence to support Curry’s conviction.
FACTS
At approximately 3:00 p.m. on January 20, 2011, Michael Retz was walking his
dog when he noticed two men walk into an unoccupied house that Retz’s friend, Carrie
Wood, rented and used for storage. Retz called Wood to see if she had given anyone
permission to enter the house. When Retz learned that no one had permission to enter the
house, he called the police.
Indianapolis Metropolitan Police Department Officers Brent McDonald and
Jeffrey Terry were dispatched to the scene. Officer McDonald walked around to the back
of the house and was standing next to an air conditioning unit when he heard people
talking and banging on pipes in the basement. The officer looked down and noticed that
the cooper Freon lines in the air conditioning unit were shaking back and forth. When
the banging stopped, the officer heard the sound of a hack saw cutting through a pipe.
1
Ind. Code § 35-43-2-1.
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Finally, Officer McDonald heard the hissing sound of Freon escaping from the air
conditioning unit due to the pipe being cut.
Shortly thereafter, Officer Ron Shelnutt arrived at the scene with his police dog.
Officer Shelnutt entered the house and told the men in the basement that he would release
his dog if they did not surrender. Curry and Ernest Rich came upstairs and surrendered to
the officers. Officer McDonald walked down to the basement and noticed a hacksaw in
the crawlspace where a copper pipe had been cut. In the meantime, Officer Terry
searched Curry and found Wood’s wallet in Curry’s pocket. Curry admitted that he had
picked up the wallet and put it in his pocket.
Curry was subsequently convicted in a bench trial of burglary as a class C felony
and theft as a class D felony. The trial court merged the two counts and sentenced Curry
to four years for the class C felony. Curry appeals his conviction.
DECISION
Curry’s sole argument is that there is insufficient evidence to support his
conviction. Specifically, he contends that the State “failed to prove that [he] intended to
commit a felony inside the house.” Appellant’s Br. p. 6.
Our standard of review for sufficiency of the evidence is well settled. In
reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or
judge the credibility of witnesses. Perez v. State, 872 N.E.2d 208. 212-13 (Ind. Ct. App.
2007), trans. denied. We will consider only the evidence most favorable to the verdict
and the reasonable inferences to be drawn therefrom. Id. We will affirm the conviction
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if the evidence and those inferences constitute substantial evidence of probative value to
support the judgment. Id. Reversal is appropriate only when reasonable persons would
not be able to form inferences as to each material element of the offense. Id.A person commits burglary as a class B felony when that person breaks and enters
the dwelling of another person with intent to commit a felony in it. Ind. Code § 35-43-2-
1. Intent to commit a felony in a burglary case may be inferred from the circumstantial
evidence of the nature of the crime. Gentry v. State, 835 N.E.2d 569, 573 (Ind. Ct. App.
2005). Such intent may be inferred from a defendant’s subsequent conduct inside the
premises. Id. Intent may also be inferred from the time, force and manner of entry where
there is no evidence that the entry was made with some lawful intent. Id. The intent
element is satisfied so long as there is a solid basis for a reasonable inference to be made
that the defendant had the intent to commit a felony. Id.Here, the evidence reveals that Curry entered the house Wood was renting without
Wood’s permission and went to the basement with Rich. One of the men removed a
copper pipe with a hacksaw, and Curry placed Wood’s wallet in his pocket. Viewing this
evidence in a light most favorable to the verdict, we find sufficient evidence to support
Curry’s burglary conviction.
Curry’s arguments that he believed he had permission to enter the house with Rich
and intended to buy items in the house from Rich are nothing more than invitations for us
to reweigh the evidence. This we cannot do. There is sufficient evidence to support
Curry’s conviction.
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Affirmed.
BAKER, J., and BAILEY, J., concur.
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