Audrico Berry v. State of Indiana (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION Apr 19 2016, 7:57 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
regarded as precedent or cited before any
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
Michael G. Moore Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Audrico Berry, April 19, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1509-CR-1355
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff Klineman, Judge
Trial Court Cause No.
49G17-1503-F6-8630
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 1 of 5
[1] Audrico Berry appeals his conviction for Residential Entry,1 a Level 6 felony.
Berry argues that there was insufficient evidence presented to support his
conviction. Finding sufficient evidence, we affirm.
Facts
[2] In 2013, Berry and Jamika Walker ended their relationship, but continued to
co-parent their daughter, A.W. Walker and A.W. moved to a new apartment,
and Walker gave Berry a key to the apartment. On March 6, 2015, Berry was
scheduled to pick up his child, but he arrived earlier than Walker had expected.
Walker had a male friend, Anthony Kimmons, in her apartment at the time.
Berry knocked on the door, and Walker went to the balcony and told Berry that
he could not come into her apartment. While Berry was returning to his
vehicle, Kimmons went on to Walker’s balcony and said “yeah, you can’t come
here”. Berry became upset and approached the front door. Kimmons
proceeded to the front door to prevent Berry from coming inside, while Walker
locked herself and A.W. in the bathroom. Berry entered the apartment after he
damaged the front door’s sill plate and destroyed the frame, then he engaged in
a scuffle with Kimmons. Berry went to the bathroom and yelled at Walker to
unlock the bathroom door. Berry punched the door, leaving a hole in it. He
then went to his car to retrieve his car keys. Walker ran with A.W. into the
bedroom and locked herself and A.W. in the bedroom closet. Berry re-entered
1
Ind. Code § 35-43-2-1.5.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 2 of 5
the apartment, broke the closet door, and damaged the door frame. Walker
called the police, but Berry left before officers responded to the scene.
[3] On March 19, 2015, the State charged Berry with residential entry as a Level 6
felony, battery as a Level 6 felony, and battery as a Class B misdemeanor. On
August 11, 2015, a bench trial was held. The trial court found Berry guilty of
Level 6 felony residential entry but not guilty of the other charges. On the same
day, Berry was sentenced to 365 days, with 357 days suspended to probation.
Berry now appeals.
Discussion and Decision
[4] Berry has one argument on appeal: that there was insufficient evidence
presented to support his conviction. In reviewing a challenge to the sufficiency
of the evidence, this Court does not reweigh the evidence or judge the
credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
This Court will affirm a conviction “if probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt.” Id.[5] To convict Berry of Level 6 felony residential entry, the State had the burden to
prove beyond a reasonable doubt that he: (1) knowingly or intentionally, (2)
broke and entered, (3) the dwelling of Jamika Walker. I.C. § 35-43-2-1.5. On
appeal, Berry does not contest that he knowingly or intentionally broke and
entered Walker’s apartment. Instead, he argues that he had Walker’s consent
to enter her residence.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 3 of 5
[6] Lack of consent is not an element of residential entry that the State has to
prove. Holman v. State, 816 N.E. 2d 78, 81 (Ind. Ct. App. 2004). Instead, it is
the defendant’s burden to claim and prove consent as a defense. McKinney v.
State, 653 N.W.2d 115, 118 (Ind. Ct. App. 1995). A defendant’s belief that he
has permission to enter a residence must be reasonable in order for him to avail
himself of the defense of consent. Id. Once a defendant successfully raises the
defense of consent, the State has the burden of disproving the defense beyond a
reasonable doubt. Holman, 816 N.E.2d at 81. In this case, Berry’s argument at
trial focused on disproving the element of breaking and entering rather than on
the defense of consent. Berry concedes that he did “not explicitly” raise the
defense of consent at trial. Appellant’s Br.p.7. It is well-settled that a party
cannot argue on appeal an issue which was not properly presented to the trial
court. Franklin Bank and Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind.1990).
[7] Even if Berry had raised the defense of consent, the record contains more than
enough evidence to support the factfinder’s determination that he did not
reasonably believe that he had consent to enter. Walker testified that she told
Berry that he could not enter the apartment when he arrived early to pick up
A.W. It is evident that Berry knew he did not have consent to enter the
apartment because he had initially knocked on the door and then returned to
his vehicle after he was denied entry. If Berry reasonably believed he had
consent to enter the apartment, he would not have demanded that Walker open
the door for him or break down the door in order to enter. Under these
circumstances, a reasonable factfinder could easily have concluded that Berry
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 4 of 5
did not have a reasonable belief that Walker had consented to his entry into the
apartment.
[8] Berry argues that his possession of a key proves that he had consent to enter the
apartment. The record reveals that Walker gave Berry a key to the apartment
for the limited purpose of exchanging A.W. with Walker. At the time Berry
broke into the apartment, he was not entering for the purpose of picking up
A.W. Instead, he forced open the door because he was upset that Kimmons
was in the apartment, he aggressively confronted Walker multiple times, and he
left the apartment without the child before the police arrived. This evidence is
sufficient to support Berry’s conviction.
[9] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1355 | April 19, 2016 Page 5 of 5