David Denver Sasser v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 31 2017, 8:34 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher P. Phillips Curtis T. Hill, Jr. Phillips Law Office P.C. Attorney General of Indiana Monticello, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Denver Sasser, October 31, 2017 Appellant-Defendant, Court of Appeals Case No. 79A05-1705-CR-1020 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge Trial Court Cause No. 79D05-1610-F6-903 79D05-1611-CM-4039

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 79A05-1705-CR-1020 | October 31, 2017 Page 1 of 5

Statement of the Case [1] Davis D. Sasser appeals his conviction after a bench trial for Level 6 felony

residential entry.1 His sole argument is that there is insufficient evidence to

support his conviction. Concluding that the evidence is sufficient, we affirm

Sasser’s residential entry conviction. [2] We affirm.

Issue The sole issue for our review is whether there is sufficient evidence to support Sasser’s residential entry conviction.

Facts [3] The facts most favorable to the verdict reveal that in October 2015, Dr.

Angelica Koppalis (“Dr. Koppalis”) hired sixty-two-year-old Sasser to help her

rake and blow leaves. Dr. Koppalis paid Sasser $10.00 an hour in cash. The

second time that Sasser worked at her house, Dr. Koppalis went out and picked

up lunch for them both. When she returned home, Dr. Koppalis gave Sasser

his sandwich outside. Sasser followed the doctor back into her house and

grabbed her. He asked Dr. Koppalis if she thought he smelled good and told

1 IND. CODE § 35-43-2-1.5. Sasser also pleaded guilty to Class A misdemeanor failure of a sex offender to possess identification. See IND. CODE § 11-8-8-15. Sasser does not appeal that conviction.

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her that he had taken a shower in the bathroom adjacent to her bedroom. Dr.

Koppalis became very upset and told Sasser to leave. [4] One day the following week, Dr. Koppalis returned home from work and was

“shocked” to see Sasser sitting in her living room. (Tr. 24). She had not given

him permission to be in the house, and she asked him to leave. Sasser asked the

doctor why she did not want to sit and talk to him and then grabbed her and

asked her if it felt good to hug. Dr. Koppalis told Sasser to leave, and, this

time, he did. [5] Dr. Koppalis contacted the police, and Sasser was subsequently charged with

Level 6 residential entry. At trial, Sasser testified that Dr. Koppalis had invited

him to stay at her house while she was at work. According to Sasser, Dr.

Koppalis had also given him access to the refrigerator and let him sleep in her

shed. [6] At the end of the bench trial, the trial court concluded that Sasser’s testimony

was not credible. Specifically, the trial court explained to Sasser as follows:

It comes down to who do I believe, who do I find credible. And I believe – I found her to be credible. I don’t see any evidence where you had permission to be in this house. You went into the house, you committed the crime of residential entry. I believe the [S]tate has proven its case beyond a reasonable doubt.

(Tr. 104). [7] Sasser now appeals.

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Decision [8] Sasser argues that there is insufficient evidence to support his residential entry

conviction. Our standard of review for sufficiency of the evidence claims is well

settled. We consider only the probative evidence and reasonable inferences

supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do

not reweigh the evidence or judge witness credibility. Id. We will affirm the

conviction unless no reasonable fact finder could find the elements of the crime

proven beyond a reasonable doubt. Id. The evidence is sufficient if an

inference may be reasonably drawn from it to support the verdict. Id. at 147. [9] In order to convict Sasser of Level 6 felony residential entry, the State had the

burden to prove beyond a reasonable doubt that Sasser knowingly or

intentionally broke and entered Dr. Koppalis’ dwelling. See I.C. § 35-43-2-1.5.

On appeal, Sasser does not contest that he knowingly or intentionally broke and

entered Dr. Koppalis’ dwelling. Instead, he argues that he had Dr. Koppalis’

consent to enter her residence. [10] Lack of consent is not an element of residential entry that the State has to

prove. Holman v. State, 816 N.E.2d 78, 81 (Ind. Ct. App. 2014), trans. denied.

Rather, it is the defendant’s burden to claim and prove consent as a defense.

McKinney v. State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995). A defendant’s

belief that he has permission to enter a residence must be reasonable in order for

him to avail himself of the consent defense. Id. Once a defendant successfully

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raises the consent defense, the State has the burden of disproving the defense

beyond a reasonable doubt. Holman, 816 N.E.2d at 81. [11] Here, there is no evidence that Sasser’s alleged belief that he had permission to

enter Dr. Koppalis’ home was reasonable, and therefore he cannot avail himself

of the defense of consent. Specifically, Sasser testified that his belief that he had

permission to enter Dr. Koppalis’ home was based upon her invitation to him.

However, Dr. Koppalis’ testimony contradicted Sasser’s claims, as she denied

ever inviting Sasser into her home. Sasser’s argument is simply a request for us

to reweigh the evidence and reassess witness credibility, which we will not do.

See Drane, 867 N.E.2d at 146. The State presented sufficient evidence to

support Sasser’s residential entry conviction. [12] Affirmed.

Riley, J., and Robb, J., concur.

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