MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Mar 23 2015, 9:17 am
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 Frischkorn Gregory F. Zoeller
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio Johnson, March 23, 2015
Appellant-Defendant, Court of Appeals Case No.
30A05-1410-CR-489
v. Appeal from the Hancock Superior
Court 1
State of Indiana, The Honorable Terry K. Snow,
Judge
Appellee-Plaintiff
Case No. 30D01-1406-FB-1043
Vaidik, Chief Judge
Case Summary
Antonio Johnson was convicted of burglary as a Class B felony and attempted
theft as a Class D felony. He now appeals and argues that the evidence is
Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015 Page 1 of 6
insufficient to support his convictions. We find sufficient evidence to support
Johnson’s Class B felony burglary and Class D felony attempted-theft
convictions because the fact that Johnson opened drawers in the Flicks’ master
bedroom supports an inference that Johnson intended to commit theft as the
underlying felony in the burglary conviction and is sufficient to prove that
Johnson engaged in conduct that constituted a substantial step toward exerting
unauthorized control over the Flicks’ property with intent to deprive the Flicks
of any part of its value or use. We therefore affirm his convictions.
Facts and Procedural History
[1] At approximately 1:00 p.m. on June 20, 2014, Erin Flick took two of her
children shopping while her fourteen-year-old daughter Emma stayed home.
Fifteen minutes after her mother and siblings left their house in Greenfield,
Emma, who was upstairs in her bedroom, heard someone ring the front
doorbell twice. She then heard the family’s dogs run to the back of the house.
Emma looked out her bedroom window on the back side of the house and saw
Johnson and another man standing on the back deck looking into the house.
The men were also putting on latex gloves.
[2] Emma telephoned her mother, who told Emma to call 911. While she was
talking to the 911 dispatcher, Emma heard Johnson and the other man force
open the back door just below her bedroom, which led to her parents’ master
bedroom. She also heard the two men attempting to quiet her dogs.
Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015 Page 2 of 6
[3] When police officers arrived at the scene, they found Johnson and the other
man walking down the street three houses away from the Flicks’ house. Emma
came out of the house and identified the two men as those who had just forced
open the back door to her house. The officers found latex gloves on the ground
nearby.
[4] When Emma’s parents arrived home, they noticed that the screen door to the
first-floor master bedroom had been cut and the exterior door to the room had
been forced open. Erin also noticed that the drawers in the master bedroom
were open. Nothing was missing from the house.
[5] The State charged Johnson with Class B felony burglary for breaking and
entering the Flick family’s dwelling with intent to commit theft therein and
Class D felony attempted theft for taking a substantial step toward exerting
unauthorized control over the Flicks’ property by forcing entry and going
through contents of the dwelling. Appellant’s App. p. 44.
[6] At trial, Erin testified that the drawers in her bedroom had not been open when
she left the house. A jury convicted Johnson of both charges, and the trial court
sentenced him to ten years for the Class B felony, with four years executed and
six years suspended to probation, and two years for the Class D felony, with the
sentences to run concurrently. Johnson appeals his convictions.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015 Page 3 of 6
[7] Johnson argues that there is insufficient evidence to support his convictions for
Class B felony burglary and Class D felony attempted theft. When reviewing
the sufficiency of the evidence to support a conviction, we do not reweigh the
evidence or judge the credibility of the witnesses. Gorman v. State, 968 N.E.2d
845, 847 (Ind. Ct. App. 2012), trans. denied. We consider only the probative
evidence and the reasonable inferences therefrom that support the conviction.
Id. We will affirm if the probative evidence and reasonable inferences from that
evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. Id.
[8] To convict Johnson of Class B felony burglary, the State had to prove that he
broke and entered the Flicks’ dwelling with the intent to commit theft therein.
See Ind. Code Ann. 35-43-2-1 (West 2012). Johnson’s sole contention is that
the “evidence presented at trial does not support the conclusion[] that [he] had
the requisite intent to commit theft in the house.” Appellant’s Br. p. 4.
[9] Intent, like the other elements of burglary, is a question of fact. McBride v. State,
597 N.E.2d 992, 994 (Ind. Ct. App. 1992). Burglars rarely announce their
intentions at the moment of entry, so the intent to commit a given felony is a
fact that may be inferred from the circumstances. Gilliam v. State, 508 N.E.2d
1270, 1271 (Ind. 1987), reh’g denied. The evidence must provide a solid basis to
support a reasonable inference that the defendant intended to commit the
underlying felony. Cash v. State, 557 N.E.2d 1023, 1024 (Ind. 1990), reh’g
denied.
Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015 Page 4 of 6
[10] Baker v. State, 968 N.E.2d 227 (Ind. 2012), is instructive. There, Baker broke
and entered a church, but nothing was missing. A jury convicted Baker of
Class B felony burglary, and on appeal, like Johnson, he argued that there was
insufficient evidence of his intent to commit theft within the church. This
Court agreed and reversed Baker’s conviction. See Baker v. State, No. 89A01-
1010-CR-536 at 4 (Ind. Ct. App. June 17, 2011).
[11] The Indiana Supreme Court, however, granted transfer and affirmed Baker’s
conviction. Baker, 968 N.E.2d at 229. Specifically, the Court pointed out that
there was evidence that Baker had been in the church kitchen and had opened
several cupboards and drawers. The Court explained that this “evidence,
standing alone, permit[ted] a reasonable inference of the defendant’s felonious
intent at the time of entry. . . . The opening of cabinets and drawers by an
intruder suggests, among other things, that the person opening them was
looking for something to take.” Id. at 231.
[12] Likewise, here, there was evidence that Johnson opened several drawers in the
Flicks’ master bedroom. As in Baker, the opening of these drawers suggests that
Johnson was looking for something to take and supports an inference of intent
to commit theft. There is sufficient evidence to support Johnson’s Class B
felony burglary conviction.
[13] Johnson also argues that there is insufficient evidence to support his Class D
felony attempted-theft conviction. To convict Johnson of attempted theft, the
State had to prove that he engaged in conduct that constituted a substantial step
Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015 Page 5 of 6
toward exerting unauthorized control over the Flicks’ property with intent to
deprive the Flicks of any part of its value or use. See Ind. Code Ann. §§ 35-43-4-
2 (2012) and 35-41-5-1 (2012). Evidence that Johnson opened several drawers
in the Flicks’ master bedroom suggests that Johnson was looking for something
to take and was engaged in conduct that constituted a substantial step toward
exerting unauthorized control over the Flicks’ property with intent to deprive
the Flicks of its use or value. This evidence is sufficient to support Johnson’s
conviction of attempted theft as a Class D felony.
Affirmed.
Kirsch, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 30A05-1410-CR-489 | March 23, 2015 Page 6 of 6