MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 28 2016, 9:21 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Gregory F. Zoeller
McCaslin & McCaslin Attorney General
Elkhart, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carl G. Johnson, Jr., July 28, 2016
Appellant-Defendant, Court of Appeals Cause No.
20A04-1511-CR-2080
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable David C.
Appellee-Plaintiff. Bonfiglio, Judge
Trial Court Cause No.
20D06-1407-F6-55
Barnes, Judge.
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Case Summary
[1] Carl Johnson, Jr. appeals his convictions for Level 6 felony residential entry
and Class A misdemeanor resisting law enforcement. We affirm.
Issues
[2] The restated and consolidated issues before us are:
I. whether the evidence is sufficient to support Johnson’s
convictions; and
II. whether the trial court committed fundamental error by failing to
sua sponte instruct the jury that criminal trespass is a lesser-included
offense of residential entry and that consent is a defense to
criminal trespass.
Facts
[3] On July 24, 2014, Michael Brown, his family, and his dog were in the kitchen
of their Elkhart County residence when Brown heard the dog growl and saw the
dog “bolt for the front door.” Tr. p. 76. Brown then observed a man, who was
later identified as Johnson, “enter the door and immediately exit.” Id. Johnson
admitted he did not have permission to enter Brown’s house and that he,
Johnson, opened Brown’s door. Brown followed Johnson outside and asked
him what he was doing. Johnson told Brown someone was trying to hurt him
(Johnson), but declined Brown’s offer to call the police. Johnson stated he had
been using drugs and would get in trouble. Johnson left Brown’s residence
when Brown told him he was going to let the dog out of the house. Brown then
contacted the police.
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[4] Goshen Police Officer Michael Clere, who was in full uniform and driving a
marked police car, responded to Brown’s call. Officer Clere located Johnson
walking approximately six blocks away from Brown’s house. He asked
Johnson if he was okay. Johnson stated he was. At some point during the
conversation, someone set off fireworks nearby. Johnson, however, believed
the sound was that of a gunshot, and he ran away. Officer Clere attempted to
console Johnson and asked him to come back. When Johnson did not return,
Officer Clere identified himself as a police officer and ordered him to stop.
Johnson “just looked back and shook his head ‘no.’” Id. at 58. Johnson
admitted he did not stop when Officer Clere ordered him to stop: “No. I just,
like I said, I kept runnin [sic] for my safety.” Id. at 92. Officer Clere then
pursued Johnson and located him on his knees in someone’s yard with his
hands up.
[5] The State charged Johnson with Level 6 felony residential entry, Class A
misdemeanor resisting law enforcement by fleeing, and Class B misdemeanor
false informing. On October 12, 2015, Johnson was tried by a jury. The jury
was not instructed regarding the defense of consent to residential entry or the
lesser-included offense of criminal trespass. Johnson did not submit those
proposed instructions. The jury found Johnson guilty of residential entry and
resisting law enforcement. The State dismissed the false informing charge. The
trial court sentenced Johnson to 900 days in the Purposeful Incarceration
Program for the residential entry conviction and a concurrent sentence of 365
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days in the Department of Correction for the resisting law enforcement
conviction.
Analysis
I. Sufficiency of the Evidence
[6] Johnson first contends the evidence was not sufficient to support his
convictions.
When reviewing a claim of insufficient evidence, an appellate
court considers only the evidence most favorable to the verdict
and any reasonable inferences that may be drawn from that
evidence. If a reasonable finder of fact could determine from the
evidence that the defendant was guilty beyond a reasonable
doubt, then we will uphold the verdict. We do not reweigh the
evidence or judge the credibility of witnesses. These evaluations
are for the trier of fact, not appellate courts. In essence, we assess
only whether the verdict could be reached based on reasonable
inferences that may be drawn from the evidence presented.
Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations
omitted).
A. Residential Entry
[7] Although Johnson admitted he did not have permission to enter Brown’s
house, he contends that he had consent to do so: “Johnson’s belief that, under
the circumstances [someone was trying to hurt him], the homeowner would
have consented to Johnson’s entry of the homeowner’s residence was
reasonable.” Appellant’s Br. p. 14. Indiana Code Section 35-43-2-1.5 states
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that a person commits residential entry if he “knowingly or intentionally breaks
and enters the dwelling of another person . . . .”
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.
Townsend v. State, 33 N.E.3d 3367, 373 (Ind. Ct. App. 2015) (quotations
omitted) (citations omitted), trans. denied.1 “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. The opening of an unlocked door is sufficient.” Young v.
State, 846 N.E.2d 1060, 1063 (Ind. Ct. App. 2006) (citations omitted).
[8] Johnson testified he opened the door to Brown’s home. He testified: “I didn’t
have permission to enter his home.” Tr. p. 91. Brown testified Johnson
entered Brown’s home. This evidence is sufficient to support Johnson’s
residential entry conviction. Johnson argues that he raised the consent of
defense by presenting evidence that he believed someone was trying to hurt
him. To the extent the jury understood that Johnson presented the defense of
1
We note that Townsend discussed a prior version of Indiana Code Section 35-43-2-1.5, under which that
crime was designated as a Class D felony. Although the current version of that statute defines the crime as a
Level 6 felony, the elements of the crime are the same as they were under the version of the statute discussed
in Townsend.
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consent, it rejected that defense. It is not within our province to reweigh the
evidence or assess the credibility of the witnesses.
B. Resisting Law Enforcement
[9] Johnson next contends the evidence was not sufficient to support his conviction
for resisting law enforcement by fleeing because “Johnson was not fleeing the
officer but was running from what he thought were shots being fired at him . . .
Johnson began running for security reasons and not because he was resisting
law enforcement.” Appellant’s Br. p. 20. Indiana Code Section 35-44.1-3.1
defines resisting law enforcement as “ knowingly or intentionally . . . flee[ing]
from a law enforcement officer after the officer has, by visible or audible means
. . . identified himself or herself and ordered the person to stop[.]”
[10] Officer Clere testified that at the time of his encounter with Johnson he was
driving a marked police vehicle and wearing a police uniform. During his
testimony, Johnson acknowledged Officer Clere said, “Stop! Police!” Tr. p.
92. Johnson further testified that he did not stop when Officer Clere ordered
him to. Instead, Johnson testified, “No [I did not stop]. I just, like I said, I kept
runnin [sic] for my safety.” Id.
[11] This was sufficient evidence from which the jury could conclude beyond a
reasonable doubt that Johnson resisted law enforcement by fleeing. In an effort
to mitigate his actions, Johnson explained he believed he was in danger when
he ran from Officer Clere. The jury had the opportunity to consider that
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evidence and chose to convict Johnson. We may not reweigh the evidence or
judge the witnesses’ credibility in order to reach a different outcome.
II. Jury Instructions
[12] Johnson contends the trial court committed fundamental error when it failed to
sua sponte instruct the jury that criminal trespass is a lesser-included offense of
residential entry and regarding the defense of consent.
Fundamental error is an extremely narrow exception to the
waiver rule where the defendant faces the heavy burden of
showing that the alleged errors are so prejudicial to the
defendant’s rights as to make a fair trial impossible. In
evaluating the issue of fundamental error, our task is to look at
the alleged misconduct in the context of all that happened and all
relevant information given to the jury—including evidence
admitted at trial, closing argument, and jury instructions—to
determine whether the misconduct had such an undeniable and
substantial effect on the jury’s decision that a fair trial was
impossible. Fundamental error is meant to permit appellate
courts a means to correct the most egregious and blatant
trial errors that otherwise would have been procedurally barred,
not to provide a second bite at the apple for defense counsel . . . .
Miles v. State, 51 N.E.3d 305, 310 (Ind. Ct. App. 2016) (citations omitted)
(internal quotations omitted) (omission in original), trans. denied.
[13] It is well-established that “a trial court’s failure to sua sponte give instructions on
lesser-included offenses does not constitute fundamental error.” Lane v. State,
953 N.E.2d 625, 630 (Ind. Ct. App. 2011). Instead, “the entitlement to
included offenses instructions, in an appropriate case . . . is one that must be
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claimed and the claim preserved, in accordance with established rules of trial
and appellate procedure.” Helton v. State, 273 Ind. 211, 213, 402 N.E.2d 1263,
1266 (Ind. 1980). Thus, Johnson’s fundamental error argument, as it relates to
the lack of an instruction that criminal trespass is a lesser-included offense of
residential entry, fails.
[14] Johnson’s argument with regard to an instruction on the defense of consent
fails, too. “The giving of jury instructions is a matter within the sound
discretion of the trial court, and we review the trial court’s refusal to give a
tendered instruction for an abuse of that discretion.” Howard v. State, 755
N.E.2d 242, 247 (Ind. Ct. App. 2001). “[A] defendant in a criminal case is
entitled to have the jury instructed on any theory of defense that has some
foundation in the evidence. We apply this rule even if the evidence is weak and
inconsistent so long as the evidence presented at trial has some probative value
to support it.” Id. (citations omitted). “A defendant’s reasonable belief that he
had permission of the dwelling’s owner to enter is a defense to the charge of
residential entry.” Webster v. State, 708 N.E.2d 610, 614 (Ind. Ct. App. 1999),
trans. denied.
[15] Johnson contends he presented consent as a defense to the residential entry
charge. He argues, “there is a serious evidentiary dispute as to whether
Johnson reasonably believe he would have consent to enter a house where he
was running from people whom he believed would harm him.” Appellant’s Br.
pp. 16-17. We note that the word “consent” does not appear anywhere in the
transcript of Johnson’s trial. Johnson did not testify he believed he had
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Brown’s permission to enter Brown’s house; to the contrary, he testified “I
didn’t have permission to enter his home.” Tr. p. 91. Johnson also answered,
“Right,” when the State asked him, “[Brown] did not answer the door and
allow you into his home, correct?” Id. at 92. Although not evidence, it is
telling that Johnson’s attorney did not argue in his closing statement that
Johnson reasonably believed he had Brown’s permission to enter the house.
Johnson would have been entitled to a jury instruction on his theory of defense,
if in fact he presented any probative evidence to support that theory. Our
review of the record reveals Johnson did not present any such evidence. As
such, the trial court did not commit fundamental error by failing to sua sponte
instruct the jury regarding the defense of consent.
Conclusion
[16] There was sufficient evidence from which the jury could conclude Johnson
committed residential entry and resisting law enforcement by fleeing. The trial
court did not commit fundamental error by failing to sua sponte instruct the jury
that criminal trespass is a lesser-included offense of residential entry or that
consent is a defense to residential entry. We affirm.
Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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