MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 30 2015, 8:46 am
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
Jeffrey E. Stratman Gregory F. Zoeller
Aurora, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Patrick C. Garvey, September 30, 2015
Appellant-Defendant, Court of Appeals Case No.
15A04-1503-CR-93
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff Humphrey, Judge
Trial Court Cause No.
15C01-1210-FB-56
Crone, Judge.
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Case Summary
[1] Patrick C. Garvey challenges the sufficiency of the evidence supporting his class
B felony burglary conviction. Specifically, he asserts that the State failed to
establish that he intended to commit theft inside the victim’s dwelling and asks
that we reverse his burglary conviction and order modification to class D felony
residential entry. Finding the evidence sufficient to support the jury’s
determination that he intended to commit the felony of theft inside the
dwelling, we affirm his conviction.
Facts and Procedural History
[2] On October 8, 2012, Daniel Blackaby and his brother Mark Blackaby pulled
into their driveway and noticed a strange vehicle parked in front of their uncle’s
driveway nearby. They knew that their uncle was in Kentucky for the day, so
they drove over to investigate. They pulled in directly behind the suspicious
vehicle, and Daniel walked behind the house to the garage and observed that
his uncle’s truck was not there. When he turned to face the house, he noticed
that the glass in the back door had been shattered. He saw a tall man, later
identified as Garvey, walking quickly toward the driveway. The brothers
attempted to prevent Garvey from leaving, but he got in his vehicle and sped
around the house and away from the property.
[3] The brothers noted Garvey’s license plate number and called the police.
Investigators found large rocks and shattered glass on the floor by the broken
back door. They discovered the bedroom dresser drawers in disarray, with
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clothing items on the floor and protruding from half-opened drawers. They also
found the bed sheets rumpled and thrown back. They discovered blood on an
item inside one of the drawers and on a tax document sticking out of another
drawer. The victim later determined that no property had been taken.
[4] Each of the brothers separately identified Garvey from a photographic array,
and DNA testing showed that the blood found at the crime scene was Garvey’s.
The victim did not know Garvey and did not give him permission to enter his
home.
[5] The State charged Garvey with class B felony burglary, and a jury found him
guilty as charged. He now appeals. Additional facts will be provided as
necessary.
Discussion and Decision
[6] Garvey maintains that the evidence is insufficient to support his conviction.
When reviewing a challenge to the sufficiency of evidence, we neither reweigh
evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). Rather, we consider only the evidence and reasonable inferences most
favorable to the verdict and will affirm the conviction “unless no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt.” Id. It is therefore not necessary that the evidence “overcome every
reasonable hypothesis of innocence.” Id. (citation omitted).
[7] Pursuant to Indiana Code Section 35-43-2-1(1)(B)(i) (1999), the State alleged
that Garvey committed class B felony burglary by breaking and entering the
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victim’s dwelling with intent to commit the felony of theft in it. Garvey admits
that he broke and entered the victim’s home but submits that the evidence is
insufficient to establish that he intended to commit theft once inside.
[8] In the factually similar case of Baker v. State, the defendant challenged the
sufficiency of evidence to establish his intent to commit the felony of theft in
conjunction with his breaking and entering a church. 968 N.E.2d 227, 228
(Ind. 2012). In affirming Baker’s burglary conviction, our supreme court noted
that although it appeared that nothing had actually been removed from the
church, his bloodstains on the outside of cupboards and drawers left ajar
indicated that he had been present in the kitchen and had opened several
drawers and cupboards. Id. Concerning the importance of circumstantial
evidence in establishing reasonable inferences of felonious intent, the Baker
court reasoned,
Burglars rarely announce their intentions at the moment of entry,
and indeed many times there is no one around to hear them even
if they were to do so. Hence, a burglar’s intent to commit a
specific felony at the time of the breaking and entering may be
inferred from the circumstances …. Evidence of intent need not
be insurmountable, but there must be a specific fact that provides
a solid basis to support a reasonable inference that the defendant
had the specific intent to commit a felony. The evidentiary
inference pointing to the defendant’s intent must be separate from
the inference of the defendant’s breaking and entering …. In other
words, the evidence must support each inference—felonious
intent and breaking and entering—independently, and neither
inference should rely on the other for support.
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968 N.E.2d at 229-30 (citations and internal quotation marks omitted). The
Baker court concluded that the defendant’s “act of opening the drawers and
cabinets alone was enough to support an inference of intent to commit theft.
Evidence of rummaging would simply bolster the already reasonable inference
of intent.” Id. at 231.
[9] Here, the photographic exhibits show open dresser drawers with items spilling
out and items on the floor. They show Garvey’s blood on at least one item
inside a drawer and on a tax document protruding from another drawer. They
also show bed sheets rumpled and thrown back. This evidence indicates that
Garvey not only opened up the drawers but also rifled through them as well as
through the bedding. Based on the foregoing, we conclude that the evidence is
sufficient to support a reasonable inference that Garvey, having broken and
entered the victim’s dwelling by shattering a glass door, ransacked the bedroom
searching for items to steal. The fact that he left emptyhanded does not vitiate
his felonious intent. Consequently, we affirm.
[10] Affirmed.
May, J., and Bradford, J., concur.
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