Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
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:
PATRICK A. DUFF GREGORY F. ZOELLER
Duff Law, LLC Attorney General of Indiana
Evansville, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
Apr 28 2014, 9:34 am
IN THE
COURT OF APPEALS OF INDIANA
BLAKE J. DRAPEAU, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1310-CR-466
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Kelli E. Fink, Magistrate
Cause No. 82C01-1307-FD-746
April 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Blake J. Drapeau appeals after a jury trial, challenging only his conviction for one
count of residential entry1 as a Class D felony, contending that the evidence was insufficient
to support his conviction and that the trial court abused its discretion in instructing the jury.
We affirm.
FACTS AND PROCEDURAL HISTORY2
Drapeau needed a place to stay, so his biological father, John Brookhover, agreed
to give him a place to stay at his house, but did not have the lease changed to add Drapeau’s
name. On June 30, 2013, Brookhover and Drapeau had some confrontations, which
resulted in Brookhover telling Drapeau to leave if he did not like living there. Drapeau’s
grandmother came over to Brookhover’s house, Drapeau gave her the keys to Brookhover’s
home, and she returned them to Brookhover after Brookhover told Drapeau to leave.
Drapeau’s grandmother also told Drapeau that he had to get out of Brookhover’s house.
The next day Drapeau returned to Brookhover’s house accompanied by his mother
to retrieve some belongings he had left behind the day before. Brookhover was not home
at that time, but Drapeau’s grandmother was there. Later, when Brookhover returned, he
noticed that Drapeau had not taken all of his belongings. Brookhover helped Drapeau’s
1
See Ind. Code §35-43-2-1.5.
2
The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order
For the Indiana Court Reporting Pilot Project By Using Professional Transcription Experts On Appeal[,]”
issued on November 8, 2012, and effective on November 1, 2012. See In re Pilot Project For Expedited
Transcripts In the Preparation of the Record and Briefing on Appeal, 977 N.E.2d 1010 (Ind. 2012). We
are grateful for the ongoing cooperation of the Honorable Kelli E. Fink of Vanderburgh Circuit Court,
eScribers, appellate counsel, and the Office of the Indiana Attorney General in the execution of this pilot
project.
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grandmother load the remaining belongings in her car, and she took them to Drapeau’s
mother’s house.
On the evening of July 4, 2013, while fireworks were going off, Brookhover heard
Drapeau “hollering” his name and tapping on a window of Brookhover’s house. Tr. at 139.
Brookhover called the police because he was “tired of messing with [Drapeau].” Id. Police
officers responded to the call, but left after failing to locate Drapeau. Brookhover went to
bed at approximately midnight after the fireworks had concluded. The following testimony
is Brookhover’s description of the events that happened next:
All of the sudden, my door flies open, I come up off the bed, and the time I
got off the bed, he - - -he hits me with this ten-inch round glass --- tan glass
ashtray, splits my head open. And I don’t know if he had something else he
ripped in half, or something like that, and cuts me up --- cuts me a couple
more places. Then I grabbed my phone, I was calling the police, and he sat
out in the yard hollering to me to come out there, and this and that. And I
stayed by my door, because I had blood all over me. I told the police that I’d
need the police, and I [sic] that I think I also need an ambulance because I
had blood all over me, and so then they both came and they took me to the
hospital in the ambulance.
Id. at 140. In further explanation of how his door opened that night, Brookhover stated
that the deadbolt lock on the door was broken and that the latch hook on his screen door
had been ripped out.
When Brookhover’s sister, Michelle Walker, picked him up from the hospital on
July 5, 2013, Brookhover was bleeding from his head. Walker took Brookhover to his
house, and when they arrived, they found Drapeau in Brookhover’s bed. Drapeau came
out of the bedroom with Brookhover’s metal kitchen chair in his hand. Drapeau later went
back into Brookhover’s bedroom, picked up Brookhover’s television, and acted as if he
was going to hit Brookhover with it. Brookhover retrieved his taser, but Walker convinced
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Brookhover to exit the house and call the police. Walker and Brookhover were waiting
outside for the police when they observed Drapeau walk up to the door of the house.
Drapeau said, “I’m John Kevin Brookhover; you don’t live here no more.” Id. at 144. The
police arrived and took Drapeau away.
The State charged Drapeau with one count of residential entry as a Class D felony,
one count of battery resulting in bodily injury as a Class A misdemeanor, one count of
criminal trespass as a Class A misdemeanor, one count of false informing as a Class B
misdemeanor, and one count of criminal mischief as a Class B misdemeanor. After his
jury trial, Drapeau was found guilty of all charges. The trial court sentenced Drapeau to
an aggregate sentence of 18 months executed in the Department of Correction. Drapeau
now appeals from his conviction for residential entry.
DISCUSSION AND DECISION
Our standard of reviewing claims of sufficiency of the evidence is well settled.
When reviewing the sufficiency of the evidence, we consider only the probative evidence
and reasonable inferences supporting the verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind.
Ct. App. 2009) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). We do not
reweigh the evidence or assess witness credibility. Id. We consider conflicting evidence
most favorably to the trial court’s ruling. Id. We will affirm the conviction unless no
reasonable fact-finder 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. Id. The evidence is sufficient if an inference may reasonably be drawn from it
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to support the verdict. Id. A conviction may be based upon circumstantial evidence alone.
Bockler v. State, 908 N.E.2d 342, 346 (Ind. Ct. App. 2009).
In order to establish that Drapeau had committed the offense of residential entry,
the State was required to prove beyond a reasonable doubt that Drapeau knowingly or
intentionally did break and enter Brookhover’s home. Ind. Code § 35-43-2-1.5. The jury
was instructed as follows:
In Count I, the State has charged the defendant with the offense of residential
entry, a Class D felony, in which the State has alleged that in Vanderburgh
County, State of Indiana, on or about July 5, 2013, Blake John Drapeau did
knowingly and intentionally break and enter the dwelling of John
Brookhover, situated at 1205 Park Street, Evansville, Indiana, contrary to
Indiana Law.
Tr. at 118.
A review of the evidence most favorable to the jury’s verdict reveals that Drapeau
had engaged in confrontations with Brookhover and was asked to leave Brookhover’s
home. Drapeau’s grandmother came over to the house, Drapeau gave the key to
Brookhover’s house to her, which Drapeau’s grandmother in turn gave to Brookhover, after
Brookhover told Drapeau to leave. Drapeau’s grandmother also told him that he had to
leave Brookhover’s house.
Drapeau returned to Brookhover’s house the next day with his mother in order to
retrieve more of his belongings. After Brookhover returned and discovered that some of
Drapeau’s possessions still remained, he helped Drapeau’s grandmother load the
belongings into the car. Drapeau’s grandmother then took those things to Drapeau’s
mother’s house. Drapeau was never listed on Brookhover’s lease. Brookhover testified
that the deadbolt lock on his door was broken and the latch on his screen door had been
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ripped out. He testified that he awoke to find the door flying open, Drapeau entering, and
then striking Brookhover with a glass ashtray. There is sufficient evidence in the record to
support the jury’s verdict.
Drapeau challenges the sufficiency of the evidence that he broke into Brookhover’s
house, contending that he had received mixed signals from his father about whether he
could return and believed that he could return to Brookhover’s home. In other words, he
asserts his belief that he had his father’s consent to enter the home where he was found
upon Brookhover’s return from the hospital. This argument, however, is an invitation for
this court to reweigh the evidence, a task we are forbidden to undertake. Mork, 912 N.E.2d
at 411. Resolution of conflicts in the evidence rests in the province of the fact-finder.
McKinney v. State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995). As for the argument
suggesting Drapeau believed he had Brookhover’s consent, we have stated the following:
Lack of consent is not an element of the offense the State is required to prove.
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. (internal citations omitted). The evidence does not support the conclusion that Drapeau
reasonably believed he had permission to enter Brookhover’s house.
Drapeau also challenges the trial court’s instruction of the jury regarding the
element of force required to find him guilty of residential entry. Jury instructions are left
to the sound discretion of the trial court, and we may not reverse unless the trial court
abuses that discretion. Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005). A trial
court abuses its discretion in the giving of jury instructions when the instruction misstates
the law, such that it “so affects the entire charge that the jury was misled as to the law in
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the case.” White v. State, 547 N.E.2d 831, 835 (Ind. 1989). Jury instructions are to be
considered as a whole, and we will not find that the trial court abused its discretion unless
we determine that the instructions taken as a whole misstate the law or otherwise mislead
the jury. Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005), trans. denied.
The trial court instructed the jury as follows in Final Instruction 7(b):
In order to establish that a breaking in has occurred, the State may introduce
evidence from which the trier of fact could reasonably infer that the slightest
force was used to gain unauthorized entry. The State must still prove this,
and every element of the offense, as beyond a reasonable doubt.
Tr. at 222. Drapeau objected to the instruction arguing that it did not “actively” state the
law and that it relieved the State of its burden. Id. at 208. The trial court overruled
Drapeau’s objection and gave the challenged instruction.
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. Bellmore v. State, 602 N.E.2d 111, 124 (Ind. 1992).
“Breaking is proved by showing that even slight force was used to gain unauthorized entry
including opening an unlocked door.” Henley v. State, 522 N.E.2d 376, 379 (Ind. 1988).
Furthermore, the opening of an unlocked door is sufficient to establish that a breaking has
occurred. McKinney, 653 N.E.2d at 117.
Therefore, Final Instruction 7(b) is a correct statement of the law, which was not
inconsistent with the additional final instruction, which read as follows:
Before you may convict the defendant in Count I, the State must have proved
each of the following beyond a reasonable doubt: Number 1, the defendant,
Blake John Drapeau; number 2, knowingly or intentionally; number 3, broke
and entered the John Brookhover’s dwelling at 1205 Park Street, Evansville,
Indiana. If the State failed to prove each of these elements beyond a
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reasonable doubt, you must find the defendant not guilty of residential entry,
a Class D felony, in Count I.
Tr. at 218. Both instructions inform the jury that the State must prove each element of
residential entry beyond a reasonable doubt. Instruction 7(b) informs the jury of the level
of force necessary to constitute a breaking, which is listed as an element of the second
instruction set forth above. Drapeau’s arguments that the instructions in combination were
confusing or an incorrect statement of the law are unpersuasive.
Here, the evidence showed that Drapeau used such force to break into Brookhover’s
house that he split a deadbolt lock in the process. Thus, any error, would constitute
harmless error. Errors in the decision to give or refuse instructions are harmless where a
conviction is clearly sustained by the evidence, and the jury could not have found
otherwise. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006). The trial court
did not abuse its discretion.
Affirmed.
MAY, J., and BRADFORD, J., concur.
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