ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy K. Noe Gregory F. Zoeller
Richmond, Indiana Attorney General of Indiana
Ann L. Goodwin
Deputy Attorney General
Janine S. Huffman
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Jun 12 2012, 12:11 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
No. 89S01-1109-CR-543 tax court
MICHAEL W. BAKER, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
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Appeal from the Wayne Circuit Court, No. 89C01-0809-FB-017
The Honorable David A. Kolger, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 89A01-1010-CR-536
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June 12, 2012
Dickson, Chief Justice.
Defendant Michael W. Baker challenges the sufficiency of the evidence underlying his
conviction for burglary. He contends that the State failed to adduce any evidence that would
permit a reasonable jury to conclude that he acted with the requisite intent. We disagree and
hold that there was sufficient evidence of intent to support the defendant's conviction.
On the morning of Monday, January 22, 2008, a member of Harvest Time Tabernacle
Church visited the church to pray. The member was the only person present that morning and let
himself in using his key to the church. Upon entering, the member proceeded downstairs to the
basement where he noticed a broken window and blood nearby. The member then called the
pastor of the church and the police, both of whom arrived shortly thereafter. Further inspection
of the church revealed dents and scratches on the front door which were characterized by wit-
nesses as pry marks, blood and glass near the front door, a lacerated window screen on another
unbroken window, blood on the door leading into the church nursery, and several kitchen cabi-
nets and drawers standing ajar with blood stains on the outside of them. No other evidence of
the apparent intruder was discovered, and it appeared that nothing had been removed from the
church. DNA collected from the scene matched that of the defendant, and the parties later stipu-
lated that the defendant was the source of the DNA collected at the church.
The State charged the defendant with burglary of a structure used for religious worship
with the intent to commit theft, a class B felony under Indiana Code Section 35-43-2-1(1)(B)(ii).
The State also filed an Information1 seeking to have the defendant sentenced, if convicted, as a
habitual offender under Indiana Code Section 35-50-2-8 based on two of the defendant's unrelat-
ed felony convictions. The defendant pled "not guilty" to the burglary charge and pled "guilty"
to the habitual offender charge. At his trial, the jury found the defendant guilty of class B bur-
glary. The defendant has appealed his conviction on the ground that there was insufficient evi-
dence to support a conviction for burglary. The Court of Appeals reversed the defendant's con-
viction for burglary, concluding that "[t]here is insufficient evidence of Baker's intent to commit
theft within the church." Baker v. State, No. 89A01-1010-CR-536, 2011 WL 2436932, at *4
(Ind. Ct. App. June 17, 2011). We granted transfer and now affirm the defendant's conviction for
burglary.
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 defend-
1
An "Information" is "[a] formal criminal charge made by a prosecutor without a grand-jury in-
dictment." Black's Law Dictionary 849 (9th ed. 2009).
2
ant was guilty beyond a reasonable doubt, then we will uphold the verdict." Freshwater v. State,
853 N.E.2d 941, 942 (Ind. 2006) (citing Justice v. State, 530 N.E.2d 295, 296 (Ind. 1988)) (cita-
tions omitted) (internal quotation marks omitted). We do not reweigh the evidence or judge the
credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005); Walker v. State,
442 N.E.2d 696, 698 (Ind. 1982). 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. Kidd v. State, 530 N.E.2d 287, 287 (Ind. 1988).
Burglary is the breaking and entering of the building or structure of another person with
the intent to commit a specific felony therein.2 Ind. Code § 35-43-2-1; Gilliam v. State, 508
N.E.2d 1270, 1270 (Ind. 1987); Yeagley v. State, 467 N.E.2d 730, 736 (Ind. 1984). The defend-
ant admits that the evidence is sufficient to prove that he broke and entered the church, Appel-
lant's Am. Br. at 4, but he argues that the State failed to produce any evidence that would support
the inference that he broke and entered with the intent to commit theft inside the church.3 He
claims that the "evidence only establishes that [he] entered through a window, went to the kitch-
en, and opened cupboards and drawers" but not that he "rummaged through" them in any manner
that would evince an intent to commit theft. Id. He also asserts that there is no evidence that he
took anything or "went anywhere near valuable property." Id. The State responds that evidence
suggesting that the defendant opened the cupboards and drawers in the kitchen is enough to sup-
port a reasonable inference that the defendant "was looking for something to steal" and thus
enough to support an inference that he broke and entered the church with the intent to commit
theft inside. Appellee's Br. at 5. We agree with the State.
"Burglars rarely announce their intentions at the moment of entry," Gilliam, 508 N.E.2d
at 1271, 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
2
By statute, burglary is generally a class C felony. Ind. Code § 35-43-2-1. It is a class B felony,
however, if "committed while armed with a deadly weapon" or the building or structure is a "dwelling" or
the "structure [is] used for religious worship." Id. § 35-43-2-1(1). It is a class A felony if the burglary
"results in: (A) bodily injury; or (B) serious bodily injury; to any person other than a defendant." Id. § 35-
43-2-1(2). Here, Baker was charged with class B felony burglary because the structure was a church used
for religious worship.
3
Theft is a felony pursuant to Indiana Code Section 35-43-4-2(a).
3
"may be inferred from the circumstances." Id.; see also Hampton v. State, 961 N.E.2d 480, 487
(Ind. 2012) ("[T]he mens rea element for a criminal offense is almost inevitably, absent a de-
fendant's confession or admission, a matter of circumstantial proof."); Kondrup v. State, 250 Ind.
320, 323–24, 235 N.E.2d 703, 705 (1968) ("[T]he intent to commit a felony may be inferred
from the circumstances which legitimately permit it."). "Circumstantial evidence alone is suffi-
cient to sustain a burglary conviction." Kidd, 530 N.E.2d at 287; accord Cash v. State, 557
N.E.2d 1023, 1025 (Ind. 1990) ("A conviction for burglary may be sustained by circumstantial
evidence alone.").
Evidence of intent "need not be insurmountable," Gilliam, 508 N.E.2d at 1271, but there
must be a "specific fact that provides a solid basis to support a reasonable inference that the de-
fendant had the specific intent to commit a felony," Freshwater, 853 N.E.2d at 944. The eviden-
tiary inference pointing to the defendant's intent must be separate from the inference of the de-
fendant's breaking and entering. Justice, 530 N.E.2d at 297; Kondrup, 250 Ind. at 323, 235
N.E.2d at 705. The inference of intent must not derive from or be supported by the inference of
breaking and entering. In other words, the evidence must support each inference—felonious in-
tent and breaking and entering—independently, and neither inference should rely on the other for
support. This is not to say, however, that the same piece of evidence cannot support both infer-
ences.
Requiring independent evidence of intent is necessary to maintain the distinction between
burglary and other criminal offenses involving property invasion such as criminal trespass, Ind.
Code § 35-43-2-2, or residential entry, Ind. Code § 35-43-2-1.5. Permitting the felonious intent
element to be inferred from the inference of breaking and entering would render the intent ele-
ment meaningless and read it out of the statute. See Faulkner v. State, 260 Ind. 82, 87, 292
N.E.2d 594, 596 (1973) ("If the Legislature had intended to punish a breaking and entry by itself,
as we have here, they would not have added the second element of specific intent. A reading of
the statute clearly indicates that both elements are included.").4
4
Faulkner was explicitly overruled by Carter v. State, 265 Ind. 535, 537, 356 N.E.2d 220, 222
(1976), which found sufficient evidence of intent to commit a felony where there was evidence that a de-
fendant broke and entered a beauty salon at 2:00 a.m. armed with a revolver. Though it does not explicit-
ly acknowledge the similarity, Carter employs the same reasoning as Lisenko v. State, 265 Ind. 488, 355
4
Here, there was evidence that the defendant had been in the church kitchen and opened
several cupboards and drawers while there. This evidence, standing alone, permits a reasonable
inference of the defendant's felonious intent at the time of entry. Looking through the kitchen
cupboards and drawers was not a necessary step in the act of breaking and entering the church.
It was an additional act, separate and distinct from the breaking and entering, in which the de-
fendant chose to engage. The opening of cabinets and drawers by an intruder suggests, among
other things, that the person opening them was looking for something to take. From this, the jury
reasonably could have concluded that the defendant broke and entered the church with an intent
to commit theft. That there was no evidence that the defendant had rummaged through the
drawers or cabinets, as the defendant argues, is of no consequence. The act of opening the draw-
ers 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.
The defendant also argues that there is no evidence that he was near or approaching any
valuable property while inside the church, drawing on brief discussions in Freshwater, 853
N.E.2d at 944–45 (declining to permit inference of intent to commit felony inside building where
only evidence of intent was that defendant had been seen inside building at time of breaking and
entering, but not seen near any valuable property, and fleeing after alarm sounded), and Justice,
530 N.E.2d at 297 (declining to permit inference of intent to commit specific felony from fact
that defendant was seen wearing black socks on hands inside building he had broke and entered).
N.E.2d 841 (1976), which held that, "[i]n the absence of evidence that this forced entry was made with
some lawful intent, we think that the intent to commit a felony may be reasonably inferred from the time,
force, and manner in which the entry here was made." 265 Ind. at 490–91, 355 N.E.2d at 842–43. Both
Lisenko and Carter, however, have been abrogated by subsequent pronouncements of this Court. See Jus-
tice, 530 N.E.2d at 297 (holding that "some fact in evidence must point to an intent to commit a specific
felony" and finding insufficient evidence of an intent to commit a felony where defendant broke and en-
tered the home of another and was found wearing socks over his hands); Gilliam, 508 N.E.2d at 1271
(distinguishing Lisenko and holding that there must be evidence providing a "solid basis to support a rea-
sonable inference that the defendant intended to commit the underlying felony charged" and finding in-
sufficient evidence of intent where only evidence was that defendant had broke and entered dwelling); see
also Sumner v. State, 540 N.E.2d 1253, 1255 (Ind. Ct. App. 1989) ("The cleavage between Lisenko and
Justice and Gebhart [v. State, 531 N.E.2d 211 (Ind. 1988),] is too strong to ignore. Lisenko and the nu-
merous cases following it have been impliedly overruled."); Hahn v. State, 533 N.E.2d 618, 620–21 (Ind.
Ct. App. 1989) ("Accordingly, to the extent that prior cases, beginning with Lisenko v. State, have held
that intent to commit theft may be inferred by time and manner of entry, even when coupled with flight,
they have been impliedly overruled." (citation omitted)). Accordingly, Faulkner remains good law.
5
Neither of these cases, however, should be understood to suggest that sufficient evidence of in-
tent necessarily requires evidence that the defendant was near or approaching valuable property.
A defendant's close proximity to valuable property may serve as an independent basis from
which a reasonable inference of intent to commit a felony can be drawn. But, the absence of
such evidence will not preclude conviction because the statutory definition of the crime of theft
places no minimum threshold on the value of property necessary to constitute the felony. Ind.
Code § 35-43-4-2(a) ("A person who knowingly or intentionally exerts unauthorized control over
property of another person, with intent to deprive the other person of any part of its value or use,
commits theft, a Class D felony."). Thus, it is enough that in this case there was evidence that
the defendant committed an act which could support an inference that he was searching for
something to steal, no matter the value.
Conclusion
From this evidence presented, we conclude that a reasonable jury could have found be-
yond a reasonable doubt that the defendant committed breaking and entering of the church with
the intent to commit theft. The judgment of the trial court is affirmed.
Sullivan, Rucker, David, and Massa, JJ., concur.
6