MEMORANDUM DECISION
Aug 24 2015, 8:53 am
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
Kurt A. Young Gregory F. Zoeller
Nashville, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eugene Hill, August 24, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1502-CR-43
v. Appeal from the Marion County
Superior Court;
The Honorable Christina Klineman,
State of Indiana, Judge;
Appellee-Plaintiff. 49G17-1410-F6-48234
May, Judge.
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[1] Eugene Hill appeals the sufficiency of evidence supporting his conviction of
Level 6 felony residential entry. 1 We affirm.
Facts and Procedural History
[2] In October 2014, Andrea Gilmore was living off and on in an apartment that
had been leased by her father, who was no longer living in the apartment due to
illness. Gilmore kept most of her clothing and some other possessions in the
apartment, and she intended to take over her father’s lease because he would
not be returning.
[3] At 8 a.m. on October 13, Gilmore returned to the apartment to change her
clothes before going to work. When she unlocked the door and entered the
residence, she immediately noticed a strong odor of urine. As she walked
further into the apartment she noticed Hill sitting on the couch crying. Gilmore
knew Hill, who had been at the apartment on other occasions, but he did not
have a key to the apartment and she had not given him permission to enter on
this date. Gilmore asked Hill what he was doing, why it smelled “like pee,”
(Tr. at 26), and “what the f*** is goin’ [sic] on?” (Id.) When she noticed her
clothing torn up in pieces on the floor and wet with urine, she asked why her
clothes smelled like urine, and “that’s when everything went crazy.” (Id. at 27.)
Hill “hopped up” off the couch, “knocked” her back, and “pounded on” her.
(Id.) Hill punched Gilmore with his fists and kicked her as he accused her of
1
Ind. Code § 35-43-2-1.5 (2014).
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being “out havin’ sex,” (id. at 28), and he threatened to break her hands so she
could no longer work as a hair dresser. Gilmore’s uncle, who lived in an
adjacent apartment, began pounding on her apartment door. When the
pounding stopped, Hill fled.
[4] A few moments later, Gilmore’s uncle returned with the police. They found a
screen had been broken out of a window into Gilmore’s apartment and the
window had been raised. The screen was not normally on the ground where it
was found. Gilmore’s left eye was swollen shut and had scratches above it, and
she had cracked ribs.
[5] The State charged Hill with level 6 felony intimidation, 2 level 6 felony
residential entry, class A misdemeanor battery resulting in bodily injury, 3 and
class B misdemeanor criminal mischief, 4 and it alleged Hill was an habitual
offender. 5 Hill waived his right to a jury trial. After the State presented all of its
evidence, the court granted Hill’s motion to dismiss the intimidation charge.
After Hill presented evidence, the court found Hill guilty of the remaining
crimes and entered a conviction of level 6 felony residential entry. Hill agreed
he was an habitual offender in exchange for the State’s agreement he would
receive a three-year sentence – one year for residential entry and two years for
2
Ind. Code § 35-45-2-1(a)(2) (2014)
3
Ind. Code § 35-42-2-1(b)(1).
4
Ind. Code § 35-43-1-2(a).
5
Ind. Code § 35-50-2-8.
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being an habitual offender. The court accepted that agreement and sentenced
Hill accordingly.
Discussion and Decision
[6] When an appellant challenges sufficiency of evidence supporting a conviction,
we do not reweigh the evidence or assess the credibility of witnesses. Willis v.
State, 27 N.E.3d 1065, 1066 (Ind. 2015). Rather, considering only the facts and
inferences most favorable to the judgment, we affirm if “there is substantial
evidence of probative value supporting each element of the offense such that a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” Id.
[7] Residential entry occurs when a person “knowingly or intentionally breaks and
enters the dwelling of another person.” Ind. Code § 35-43-2-1.5. Hill asserts he
had consent to be in the apartment. “Lack of consent is not an element of the
offense [of residential entry that] the State is required to prove.” McKinney v.
State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995). Rather, the defendant has the
burden to raise the defense of consent. Holman v. State, 816 N.E.2d 78, 81 (Ind.
Ct. App. 2004), trans. denied. See also Ind. Code § 35-41-3-7 (“It is a defense that
the person who engaged in the prohibited conduct was reasonably mistaken
about a matter of fact, if the mistake negates the culpability required for
commission of the offense.”). “Upon invoking mistake of fact as a defense, the
burden shifts to the defendant to satisfy three elements: (1) that the mistake be
honest and reasonable; (2) that the mistake be about a matter of fact; and (3)
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that the mistake negate the culpability required to commit the crime.” Chavers
v. State, 991 N.E.2d 148, 151 (Ind. Ct. App. 2013) (internal citations and
quotations omitted), trans. denied. Thus, to avail oneself of the defense of
consent, a person’s belief that he has permission to enter must be reasonable.
McKinney, 653 N.E.2d at 118.
The State, however, retains the ultimate burden of proving beyond a
reasonable doubt every element of the charged crime, including
culpability or intent, which would in turn entail proof that there was
no reasonably held mistaken belief of fact. In other words, the State
retains the ultimate burden of disproving the defense beyond a
reasonable doubt. The State may meet its burden by directly rebutting
evidence, by affirmatively showing that the defendant made no such
mistake, or by simply relying upon evidence from its case-in-chief.
Chavers, 991 N.E.2d at 151-52.
The trial court, in explaining why it found Hill guilty of residential entry, noted
testimony Hill did not have a key to the property and evidence the window had
been opened and the screen broken. It explicitly noted
the Court did not believe Mr. Hill. Because a person who lives at a
residence or dwelling would not—a reasonable person wouldn’t
urinate all over their apartment, nor the clothes of another person
livin’ [sic] in that apartment. Simply put, the Court had to weigh
credibility of Mr. Hill . . . and the credibility of Ms. Gilmore, and the
court did not believe Mr. Hill.
(Tr. at 60-61.)
[8] It is the trial court’s prerogative to weigh the evidence and to determine
credibility in reaching its judgment. Transcon. Ins. Co. v. J.L. Manta, Inc., 714
N.E.2d 1277, 1284 (Ind. Ct. App. 1999). Gilmore, who resided in the
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apartment, testified Hill had not been given permission to be there that day,
nor, to her knowledge, had he been given a key. 6 When she saw Hill in the
apartment, she immediately asked what he was doing and “what the f*** is
goin’ [sic] on?” (Tr. at 26.) Those questions suggest she had not consented to
his presence in the apartment.
[9] Even if Hill believed he had consent to enter the apartment, such belief was not
reasonable when he entered by breaking a screen and crawling through a
window. See Mitchell v. State, 712 N.E.2d 1050, 1055 (Ind. Ct. App. 1999)
(although Mitchell had lived in home for a time, he had been told to leave on
two occasions, and although he claimed he entered with a key, police did not
find the key where he claimed he placed it).
[10] The evidence is sufficient to demonstrate beyond a reasonable doubt that Hill
committed residential entry and, accordingly, we affirm.
[11] Affirmed.
Crone, J., and Bradford, J., concur.
6
Hill argues he cannot be convicted of residential entry into Gilmore’s apartment because the apartment was
leased by her father, not her. Regardless who leased the apartment, Gilmore testified her father was not
returning to the apartment due to illness, she kept all of her clothing there, she sometimes slept there, and she
intended to take over the lease. Under these facts, we hold no reversible error resulted from the State
charging Hill with entry of Gilmore’s residence, as Hill was not misled about the location of the crime
alleged. See, e.g., Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987) (finding no reversible error in charge for
burglarizing the New Mount Olive Baptist Church, where charge alleged building broken and entered was
owned by Southern Baptist Mission Board, which held the mortgage, but evidence demonstrated ownership
was in the New Mount Olive Baptist Church congregation itself, because defendant was not misled about the
location of the burglary and could prepare a defense).
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