MATHIAS, Judge.
Shamir Chappell ("Chappell") was convicted in Wayne Superior Court of Class A felony burglary causing bodily injury, Class B felony burglary of a dwelling, Class D felony battery, and he admitted to
In 2010, Elly Casebolt-Flanagan ("Casebolt-Flanagan") rented a home in Richmond, Indiana to Dinashia Bee ("Bee"). Bee and Casebolt-Flanagan had an "understanding" that only Bee was to live at the home. Despite this, Bee lived at the home with her mother and two brothers. One of Bee's brothers, Maurice Jones ("Maurice") lived at the home with his wife, Heather Jones ("Heather"). Casebolt-Flanagan was unhappy with this and legally evicted Bee from the home on September 8, 2010. As a result of the eviction, Bee was given until September 13, 2010 to vacate the house and take her belongings. Although Bee and her mother moved out of state, Maurice and Heather stayed at the house on September 12, 2010 in order to remove the remainder of Bee's belongings.
That evening, Maurice went to the home of Carlotta Wilkerson ("Wilkerson"), with whom he had a relationship. Wilkerson began to send Heather text messages, taunting her that Maurice was going to leave her to be with Wilkerson. Wilkerson even called Heather and threatened to physically assault her. Undaunted by these threats, Heather went to Wilkerson's home to confront her. The two women argued, but Maurice was able to keep them physically separated. Maurice then went back to the rented home with Heather, and the two slept in the back bedroom of the house.
At some point in the middle of that night, Maurice and Heather heard someone banging on the front door. Heather got out of the bedroom to see what was causing the noise when she saw the door fly open and Wilkerson and Chappell enter the house. Heather then ran back to the bedroom and shut the door. Wilkerson and Chappell tried to force their way into the bedroom, but Maurice and Heather held the door shut. Chappell then kicked the door repeatedly, eventually breaking it off the latch and hinges. Wilkerson was holding a steak knife, so Heather attempted to flee out the front door but was blocked by an unknown individual. Heather then ran to the basement in an attempt to flee out a back door, but Wilkerson followed her.
In the basement, Wilkerson stabbed Heather in the arm. Maurice and Chappell soon came to the basement, and Chappell blocked Heather's attempt to run back up the basement stairs. When Maurice attempted to come to Heather's defense, Wilkerson told Chappell, "we're in this together, do it," and "what are you waiting for?" Tr. pp. 302, 245. Chappell then swung his fists at Maurice. Heather managed to escape back up the basement stairs, but as she did, Wilkerson stabbed her again, this time in the hip. Heather was then able to run out the front door and found shelter at a neighbor's house, where the neighbor called the police. Maurice too ran to the front door. As he did, Chappell ran by him, telling Wilkerson, "come on, we gotta go." Tr. p. 319.
When the police arrived, the found they front door of the house dented and completely removed from the door frame. Heather was taken to the hospital, and it took eight medical staples to close her knife wounds. Both Maurice and Heather later identified Wilkerson and Chappell from a photographic array as their attackers. Both were "100%" positive of the accuracy of their identifications. Tr. pp. 182-83, 255
On December 7, 2010, the State charged Chappell as follows: Count I, aiding, inducing, or causing Class A felony burglary resulting in bodily injury; Count II, aiding, inducing, or causing Class B felony burglary of a dwelling; and Count III, Class B misdemeanor battery. The State also alleged that Chappell was an habitual offender. The State later moved to add Count IV, Class C felony battery, and moved later again to amend this charge to aiding, inducing, or causing Class C felony battery. At that time, the State also added Count V, which alleged Class D felony residential entry. A two-day jury trial commenced on February 7, 2011. At the conclusion of the trial, the jury found Chappell guilty on Counts I, II, IV, and V, but acquitted him on Count III. Chappell then admitted to being an habitual offender.
On March 4, 2011, the trial court sentenced Chappell to forty years on Count I, ten years on Count II, and four years on Count IV. The trial court vacated the conviction on Count V on double jeopardy grounds. The court also attached an habitual offender enhancement of thirty years to the forty-year sentence on Count I, and ordered the sentences on the other counts to run concurrently with Count I. Thus, Chappell was sentenced to an aggregate of seventy years incarceration.
Chappell filed a motion to correct error on March 29, 2011. The trial court held hearings on Chappell's motion on April 15 and May 11, 2011.
Chappell first argues that the State failed to present sufficient evidence to support his convictions for burglary. Upon a challenge to the sufficiency of evidence to support a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses; instead, we respect the exclusive province of the trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We consider only the probative evidence and reasonable inferences supporting the verdict, and we will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
To convict a defendant of Class A felony burglary, the State must prove that he: (1) broke and entered the building or structure of another; (2) with the intent to commit a felony in it; and (3) it resulted in bodily injury to any person other than a defendant.
In Count I of the charging information, the State alleged that the structure Chappell broke into was "the building or structure of another person . . . owned by Elly Casebolt-Flanagan and rented by Dinashia [B]ee[.]" Appellant's App. p. 12. And the evidence supported this allegation. Maurice's sister, Bee, was the tenant of the house and did not have to vacate the premises until September 13, 2010. It was in the early hours of that day that Chappell broke into the home. And Maurice and Heather had Bee's permission, if not the landlord's permission, to be in the house at the time Chappell and Wilkerson broke into it. Bee still had the right to be in the home at the time of the burglary, and Maurice and Heather were in the home with her permission. In contrast, neither Wilkerson not Chappell had such permission.
We therefore conclude that the State presented evidence sufficient to prove that Chappell broke and entered into the building or structure of another person. See Jewell v. State, 672 N.E.2d 417, 426 (Ind. Ct.App.1996) (burglary statute's requirement that the dwelling be that "of another person" is satisfied if the evidence demonstrates that the entry was unauthorized); Keel v. State, 165 Ind.App. 579, 582-83, 333 N.E.2d 328, 330 (1975) (concluding that evidence was sufficient to support defendant's conviction for burglary where defendant broke into home owned by recently deceased woman but still occupied by decedent's male friend for a week after her death, despite defendant's claim that occupant was unlawfully living there after owner's death).
The State charged Chappell under a theory of accomplice liability by alleging
To meet its burden under a theory of accomplice liability, the State was required to prove that Chappell aided, induced, or caused burglary and that when he so acted, he was aware of a high probability that his behavior was aiding, inducing, or causing burglary. See Johnson v. State, 605 N.E.2d 762, 764 (Ind.Ct.App. 1992), trans. denied (citing Ind.Code § 35-41-2-4). "The culpability element involves proof of an awareness of a high probability both that [the defendant] was engaging in the actus reus of the crime, namely aiding, inducing or causing burglary, and that [his] behavior would facilitate the commission of a breaking and entering with the intent to commit one of the particularly named felonies." Id. at 764-65 (citing Ind. Code § 35-41-2-2(d); Fortson v. State, 270 Ind. 289, 385 N.E.2d 429, 434 (1979)). The State was not required to prove that Chappell knew his conduct would necessarily result in battery with a deadly weapon. See id. at 765. Instead, the accessory statute has been construed to impose a form of vicarious liability "`for everything. . . which follows incidentally in the execution of the common design, as one of its natural and probable consequences, even though it was not intended as part of the original design or common plan,' upon a showing that the accomplice acted in concert with those who physically committed the elements of the crime." Id. (quoting Fox v. State, 497 N.E.2d 221, 227 (Ind. 1986)).
Moreover, despite the fact that neither Wilkerson nor Chappell testified, there was sufficient circumstantial evidence from which the jury could conclude that Chappell knew of Wilkerson's plan to attack Chappell. With regard to burglary, intent to commit a given felony may be inferred from the circumstances, but intent to commit a felony may not be inferred from proof of breaking and entering alone. Freshwater v. State, 853 N.E.2d 941, 943 (Ind.2006). Some fact in evidence must point to an intent to commit a specific felony. Id. Generally, the defendant's intent at the time of entry may be inferred from the fact of subsequent commission of a felony. Mull v. State, 770 N.E.2d 308, 313 (Ind.2002) (citing Gee v. State, 526 N.E.2d 1152, 1154 (Ind.1988)); see also Jewell, 672 N.E.2d at 427 ("Although the fact of breaking and entering is not itself sufficient to prove the entry was made with the intent to commit the felony, such intent may be inferred from the subsequent conduct of the defendant inside the premises.").
Chappell and Wilkerson broke into the house and went to the door of the bedroom where Heather and Maurice were sleeping. Chappell then helped Wilkerson knock the bedroom door down. And when Wilkerson chased Heather to the basement and stabbed her in the arm, Chappell blocked her escape. During the attack, Wilkerson told Chappell, "we're in this together, do it," and "what are you waiting for?" Tr. pp. 302, 245. Chappell then attempted to hit Maurice. From these facts and circumstances, the jury could reasonably infer that Chappell knew that Wilkerson intended to attack Heather with a knife
Chappell also claims that the State presented insufficient evidence to support his conviction for Class B felony burglary, arguing that the State failed to prove that the house was a "dwelling" as required to elevate the crime of burglary to a Class B felony. See Ind.Code § 35-43-2-1(1)(B)(i) (2004). Chappell's argument is again based on his claim that Maurice and Heather were not legally in possession of the home and that the home was therefore not a dwelling. We have rejected this argument above. Thus, there was sufficient evidence to support Chappell's convictions.
We conclude sua sponte, however, that Chappell's convictions for Class B felony burglary and Class A felony burglary of the same house constitute impermissible double jeopardy, requiring vacation of his conviction for Class B felony burglary. Chappell was convicted of both Class A felony burglary and Class B felony burglary for one act of breaking and entering into one house. To convict Chappell of Class A felony burglary, the State was required to prove that he: (1) broke and entered the building or structure of another; (2) with the intent to commit a felony in it; and (3) it resulted in bodily injury to any person other than a defendant. See I.C. § 35-43-2-1(2)(A). To convict Chappell of Class B felony burglary, the State had to prove that he: (1) broke and entered the building or structure of another; (2) with the intent to commit a felony in it; and (3) that the building or structure was a dwelling. See I.C. § 35-43-2-1(1)(B)(i).
Under the Richardson actual evidence test, conviction for two offenses may constitute double jeopardy if the defendant demonstrates a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of the second offense. Lee v. State, 892 N.E.2d 1231, 1234 (Ind.2008) (citing Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)).
Applying this test to the facts of the case before us, we conclude that Chappell's convictions for both Class A felony burglary and Class B felony burglary constitute impermissible double jeopardy. To establish that Chappell committed Class B felony burglary, the State had to prove that the structure broken and entered into was a dwelling. But the only evidence that established that the home was a dwelling also established that it was a building or structure, which was required to convict Chappell of Class A felony burglary. That is, the only actual evidence differentiating the two convictions was the element of bodily injury to Heather, which was required to establish the Class A felony conviction. Thus, some of the evidentiary facts establishing the elements of Class A felony burglary (that Chappell helped Wilkerson break into the home and that Wilkerson intended to battery Heather) also established all of the essential elements of the Class B felony burglary. This constitutes impermissible double jeopardy.
Because Chappell's convictions for both Class A felony burglary and Class B felony burglary are impermissible, we vacate Chappell's conviction for Class B felony burglary and remand with instructions that the trial court vacate Chappell's sentence thereon.
Chappell also claims that the trial court erred in sentencing him. Although Chappell frames his claim of sentencing error as one of abuse of discretion, his actual argument is that his sentence is inappropriate in light of the nature of the offense and the character of the offender.
The sentencing range for a Class A felony is twenty to fifty years, with the advisory sentence being thirty years. Ind.Code § 35-50-2-4 (2004). Here, the trial court sentenced Chappell to forty years for the Class A felony burglary conviction. In addition, the sentences on Chappell's accompanying convictions were ordered to run concurrently. However, the trial court also imposed a habitual offender enhancement of thirty years to this sentence.
Despite Chappell's attempts to minimize the nature of the offenses, we think the nature of his crimes supports the trial court's sentencing judgment. Chappell was an active participant in a violent home invasion. Chappell helped Wilkerson break into a home not merely for pecuniary gain, but to allow Wilkerson to attack Heather with a knife. After breaking in the front door, Chappell and Wilkerson
Chappell's character, as reflected by his extensive criminal history, also supports the trial court's sentencing decision. Chappell, who was thirty-six years old at the time of sentencing, had already amassed fourteen criminal convictions, including four felony convictions. One of his prior convictions was for attempted "breaking and entering with intent" in Michigan. Appellant's App. p. 122. He was also convicted in Michigan for first degree felony home invasion and assault with a weapon, and he was convicted twice for trespass.
We have often noted that the significance of a defendant's criminal history varies based on the gravity, nature, and number of prior offenses as they relate to the current offense. Caraway v. State, 959 N.E.2d 847, 851 (Ind.Ct.App.2011); see also Wooley v. State, 716 N.E.2d 919, 929 n. 4 (Ind.1999) (noting that a prior conviction for OWI would be a significant aggravator in a subsequent alcohol-related offense); Simmons v. State, 962 N.E.2d 86, 93 (Ind.Ct.App.2011) (noting that prior OWI convictions, as they related to present offense of OWI, reflected poorly on defendant's character and justified imposition of maximum eight-year sentence). Chappell's prior convictions involving breaking and entering and trespass, as they relate to his current conviction for burglary, do not reflect well on his character.
Chappell has also been given the grace of probation in the past, only to have his probation revoked. In fact, the pre-sentence investigation report indicates that Chappell's probation had been revoked three times.
Giving due consideration to the trial court's sentencing decision, and considering the nature of the offense and the character of the offender, we cannot conclude that Chappell's seventy-year sentence is inappropriate.
The State presented sufficient evidence to support Chappell's conviction for Class A felony burglary. Chappell's conviction and sentence on Class B felony burglary constitutes impermissible double jeopardy, and we vacate his conviction for Class B felony burglary and remand with instructions to vacate the sentence thereon. Lastly, Chappell's aggregate sentence of seventy years is not inappropriate.
Affirmed in part, reversed in part, and remanded with instructions.
FRIEDLANDER, J., and RILEY, J., concur.