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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: MARIELENA LINDKE South Bend, Indiana

FILED
Dec 18 2008, 9:49 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ALEX O. JAMES Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DARYL M. PAYNE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A03-0805-CR-236

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-0707-FB-97

December 18, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following a jury trial, Daryl Payne was found guilty of burglary, a Class B felony. Payne appeals his conviction, contending that the State did not present sufficient evidence to support his conviction. Concluding that there was sufficient evidence of Paynes intent to commit theft at the time he broke and entered a dwelling, we affirm. Facts and Procedural History Cornelious Williams lived in a second-floor apartment in a house owned by the Housing Development Corporation ("HDC"). The furnace and water pipes were located in the locked basement to which only HDC had access. On the morning of July 21, 2007, Williams woke when a neighbors dogs started barking and he heard noises coming from the basement. Assuming at first it was a maintenance person from HDC, Williams looked outside for an HDC car; finding none, he called the police to report someone in the house. He told the 911 operator that it sounded "[l]ike the furnace is being torn out." Transcript at 152. When police arrived, they found a window into the basement broken. They entered the basement and found a bag of copper pipes, a bag containing tools and a flashlight, and a puddle of water on the floor. Eventually they discovered Payne hiding among the pipes along the ceiling. Payne was in possession of a pair of pliers, a screwdriver, and a pocket knife. His shirt was wet, dirty, and covered with bits of insulation. Payne was charged with burglary as a Class B felony for breaking and entering a dwelling. See Ind. Code

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