Gentry v. State
| Decision Date | 13 October 2005 |
| Docket Number | No. 03A01-0501-CR-15.,03A01-0501-CR-15. |
| Citation | 835 N.E.2d 569 |
| Parties | Jerome S. GENTRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Eugene C. Hollander, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jerome S. Gentry ("Gentry") was convicted in Bartholomew Superior Court of Class B felony burglary.1 The court sentenced Gentry to fifteen years, enhanced by twenty years for being an habitual offender,2 for a total sentence length of thirty-five years. Gentry raises three issues on appeal, which we restate as follows:
Concluding that his burglary and habitual offender convictions are supported by sufficient evidence, that the trial court properly relied on certain aggravating circumstances, and that Gentry has waived any objection to Final Instruction 10, we affirm.
On October 29, 2003, Gentry and his wife, Leslie, moved into the upstairs apartment of a two-story home owned by Judy Kiesow ("Kiesow"). Kiesow lived in the bottom unit of the home. Upon moving in, Gentry and his wife were given two keys; one key was used for the front door of the house, and the other key was used for the front door of their apartment. Tr. pp. 166-69. Kiesow acknowledged that it is possible that she inadvertently gave Gentry a master key which opened all three doors of the house instead of just the front door. Tr. p. 169. The door locks were self-activating and would lock when the door was shut.
Kiesow took three different types of medication each night. She took one pill each from three separate bottles, which were kept next to the bed in the night-stand drawer. She had established a habit of taking the pills immediately before she went to sleep each night. Tr. pp. 172-73. One of Kiesow's medications was the prescription narcotic hydrocodone, which she took for arthritis.
In January, 2004, Kiesow noticed that her prescription for hydrocodone seemed to be diminishing more quickly than usual. On a Sunday, January 19, she noticed that she only had three pills remaining. The following day, the remaining hydrocodone pills were missing. Tr. p. 174. After consulting with her pharmacist, she realized that of the thirty hydrocodone pills received in her most recent prescription, she had only taken five. Someone had taken the remaining twenty-five pills. Tr. p. 175. Kiesow looked, but there were no signs of forced entry into her apartment. Tr. p. 178.
Kiesow contacted the Columbus Police Department regarding her suspicion that someone was entering her apartment without her permission and stealing her hydrocodone pills. At her request, the police immediately set up a surveillance camera in Kiesow's bedroom to monitor the area while she was away. The camera resembled a clock radio and was placed on a bookcase at the end of Kiesow's bed. It was aimed at the night-stand. Columbus Police Lieutenant Trisler ("Lieutenant Trisler") placed Kiesow's empty hydrocodone bottle with the label up in the near right corner of the drawer, and placed a toothpick under the drawer in such a way that it would fall out onto the carpet if the drawer was opened. Tr. pp. 184, 203-04. Kiesow put a piece of scotch tape on her front apartment door in such a way that if it was opened, the tape would wrap around the door and she would know that someone had entered her apartment through that door.
The day after the surveillance camera had been installed, Kiesow activated the recorder before she left for work. When she returned home that night she observed that the tape was off the front door and the toothpick was lying on the bedroom carpet. Tr. p. 188. She opened the night-stand drawer and observed that the hydrocodone bottle had been moved. Kiesow informed Lieutenant Trisler of her discoveries. The surveillance camera's videotape revealed an individual, later identified as Gentry, coming through the bedroom door, walking directly to the night-stand, opening the drawer and picking up the hydrocodone bottle. The individual looked at the empty bottle, put it back in the drawer, closed the drawer and left the room. Tr. pp. 189-91, 210-11; Ex. Vol., State's Exs. 1, 2. A short time later, the same individual returned, briefly opened the drawer to the nightstand and then left. Kiesow had never discussed her medication or its location with Gentry, and to her knowledge, he had never been inside her apartment beyond just inside the front door. Tr. pp. 178-79.
That night, Gentry was questioned by Columbus Police Department Detective Thomas Watts ("Detective Watts"). Gentry was wearing the same shirt that the individual in the videotape was wearing, and the same hat was sitting on Gentry's coffee table. Detective Watts interviewed Gentry at the police station. After viewing the recording from the surveillance camera, Gentry admitted that he was the individual in the videotape. Tr. pp. 211-12.
Gentry was charged with Class B felony burglary. A jury convicted him as charged, and also convicted him of being an habitual offender. Appellant's App. p. 48. The trial court found Gentry's extensive criminal history as an aggravating circumstance, in addition to Gentry's failure to rehabilitate. Gentry was sentenced to incarceration for fifteen years upon his conviction of Class B felony burglary, and his sentence was enhanced by twenty years for being an habitual offender, for a total sentence of thirty-five years. Id.
Our standard of review for sufficiency claims is well settled. We neither reweigh the evidence nor judge the credibility of the witnesses. Cox v. State, 774 N.E.2d 1025, 1029 (Ind.Ct.App.2002). We only consider the evidence most favorable to the verdict and the reasonable inferences that can be drawn therefrom. Id. Where there is substantial evidence of probative value to support the verdict, it will not be disturbed. Armour v. State, 762 N.E.2d 208, 215 (Ind.Ct.App.2002), trans. denied.
Gentry was charged with Class B felony burglary by information that states, in relevant part, as follows:
On or about January 27, 2004 in Bartholomew County, State of Indiana, the defendant, Jerome S. Gentry did break and enter the dwelling of Judy Kiesow, with the intent to commit a felony therein, to-wit: theft.
Appellant's App. p. 7. To establish that Gentry committed the offense of Class B felony burglary, the State was required to prove that Gentry did knowingly or intentionally break into and enter Kiesow's apartment with the intent to commit theft. See Ind.Code § 35-43-2-1 (2004); See also, Ind.Code § 35-43-4-2(a) ().
Intent to commit a felony in a burglary case may be inferred from the circumstantial evidence of the nature of the crime. Webster v. State, 708 N.E.2d 610, 615 (Ind.Ct.App.1999), trans. denied. Such intent may be inferred from a defendant's subsequent conduct inside the premises. Mull v. State, 770 N.E.2d 308, 313 (Ind.2002). Additionally, intent may be inferred from the time, force and manner of entry where there is no evidence that the entry was made with some lawful intent. Gray v. State, 797 N.E.2d 333, 336 (Ind.Ct.App.2003). "Intent may not be inferred from mere proof of breaking and entering alone." Desloover v. State, 734 N.E.2d 633, 634 (Ind.Ct.App.2000). However, the intent element is satisfied so long as there is a solid basis for a reasonable inference to be made that the defendant had the intent to commit the felony of theft. Id. at 635.
Here, the evidence clearly establishes that Gentry entered Kiesow's bedroom sometime during the day of Tuesday, January 27, 2004. He walked straight to the night-stand, opened the top drawer where Kiesow kept her hydrocodone, picked up the bottle, looked at it, and put it back in the drawer. Gentry left the bedroom, but returned a short time later to look into the drawer once again. Kiesow had never discussed her medication with Gentry, and, to her knowledge, Gentry had never been in her bedroom. Viewing this evidence in the light most favorable to the verdict, we conclude there was sufficient evidence to support Gentry's Class B felony burglary conviction.
Gentry was also charged with being an habitual offender by information that states, in relevant part:
Appellant's App. p. 35. To establish that Gentry is an habitual offender, the State must have proved beyond a reasonable doubt that he has been convicted of two separate and unrelated felonies. See Ind. Code § 35-50-2-8(d) (1998); Toney v. State, 715 N.E.2d 367, 369 (citing Jackson v. State, 546 N.E.2d 846 (Ind.1989)). "The commission of the second felony must be subsequent to the sentencing of the first and the sentencing for the second felony must precede the commission of the principal felony for which the enhanced sentence is being sought." Toney, 715 N.E.2d at 369 (citing Webster v....
To continue reading
Request your trial
-
Boggs v. State Of Ind.
... ... We neither reweigh the evidence nor judge the credibility 928 N.E.2d 868 ... of the witnesses ... Gentry" v. State, 835 N.E.2d 569, 572 (Ind.Ct.App.2005). We only consider the evidence most favorable to the verdict and the reasonable inferences that can be drawn therefrom ... Id. A verdict will not be disturbed if there is substantial evidence of probative value to support it ... Id. \xC2" ... ...
-
Breaston v. State
... ... A. Sufficiency of the Evidence ... Breaston claims that the State failed to provide sufficient evidence to prove that he was a habitual offender. Our standard of review for sufficiency claims is well-settled. Gentry v. State, 835 N.E.2d 569, 572 (Ind.Ct.App.2005). We neither reweigh the evidence nor judge the credibility of the witnesses. Id. We only consider the evidence most favorable to the verdict and the reasonable inferences that can be drawn therefrom. Id. Where there is substantial evidence of ... ...
-
Killebrew v. State
... ... All sentences imposed should be concurrent not consecutive. Appellant's Brief at 13. We find that Killebrew has waived his challenges to his sentence. See, e.g., Gentry v. State, 835 N.E.2d 569, 575576 (Ind.Ct.App.2005) (holding that the defendant's failure to offer more than a mere conclusory statement that his sentence should be reduced waives his opportunity for appellate review) (footnote omitted); see also Cooper v. State, 854 N.E.2d 831, 834 n. 1 (Ind.2006) ... ...
-
Freshwater v. State
... ... For example, in Gray v. State, the Court of Appeals said that "[t]he intent to commit a felony can be inferred from the time, force, and manner of entry if there is no evidence that the entry was made with some lawful intent." 797 N.E.2d 333, 336 (Ind.Ct.App.2003). Gentry v. State has similar language. 835 N.E.2d 569, 573 (Ind.Ct.App.2005).2 As should be clear from the foregoing discussion, this is not a correct statement of the law. Justice and Gebhart dictate that in order to sustain a burglary charge, the State must prove a specific fact that provides a solid ... ...