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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: ELIZABETH A. GABIG Marion County Public Defender Agency Appellate Division Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
LESLIE SIMMONS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0703-CR-248

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant Hawkins, Judge Cause No. 49G05-0610-FC-209644

November 20, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Leslie Simmons appeals his convictions of class C felony burglary and class D felony attempted theft. He also challenges his six-year sentence for burglary. We affirm. Issues Simmons raises the following issues on appeal: I. II. Whether the State presented evidence sufficient to rebut his claim of mistake of fact, and Whether the trial court erred in sentencing him to six years for burglary. Facts and Procedural History The facts most favorable to the convictions indicate that shortly before noon on October 30, 2006, Michael Hinkle returned to his Indianapolis home after running an errand. While he was in the kitchen, he heard noises coming from his adjacent storage shed. When he went out to check the shed, he noticed that the door was open and its hinges were torn. A dresser had been removed from the shed and sat outside in the alley. Inside, he found his property in disarray and Simmons looking through items and putting them into crates. When Hinkle confronted him, Simmons claimed someone had given him permission to enter the shed. Hinkle told him that he had not authorized anyone to enter the shed or take his property. Simmons put the dresser back in the shed and quickly walked away. Hinkle later discovered that several items were missing from the shed. Shortly thereafter, police apprehended Simmons, who told them an acquaintance, whom he knew as "Foul," had told him the owner wanted help cleaning out the shed. Simmons also told police that Foul had taken a compact disc player from Hinkle's residence. Police later found that Foul, whose real name is William Mitchell, was in possession of
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several compact disc players. Hinkle did not know Mitchell either by his real name or his nickname and had never given permission for Mitchell or Simmons to enter his shed. The State charged Simmons with class C felony burglary and class D felony attempted theft. The trial court found Simmons guilty as charged and sentenced him to six years' imprisonment for burglary and eighteen months for attempted theft, with sentences to run concurrently. This appeal ensued. Discussion and Decision I. Mistake of Fact Defense Indiana Code Section 35-41-3-7 provides, "It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense." We have held that "[i]n order for mistake of fact to be a valid defense, three elements must be satisfied: (1) the mistake must be honest and reasonable; (2) the mistake must be about a matter of fact; and (3) the mistake must negate the culpability required to commit the crime." Nolan v. State, 863 N.E.2d 398, 404 (Ind. Ct. App. 2007) (citations and quotation marks omitted), trans. denied. In determining what constitutes an "honest" and "reasonable" mistake, "our supreme court has stated that `[h]onesty is a subjective test dealing with what appellant actually believed. Reasonableness is an objective test inquiring what a reasonable man situated in similar circumstances would do.'" Id. (quoting Davis v. State, 265 Ind. 476, 481, 355 N.E.2d 836, 839 (1976)). Simmons contends that the State failed to present evidence sufficient to rebut his mistake of fact defense. The State has the ultimate burden of disproving a mistake of fact
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defense beyond a reasonable doubt. Ringham v. State, 768 N.E.2d 893, 898 (Ind. 2002). Because the determination of whether the State met this burden is a question for the finder of fact, we review it using the same standard applicable to a sufficiency of evidence challenge. Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. App. 2006), trans. denied. We neither reweigh evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we must consider only the probative evidence and reasonable inferences supporting the trial court's judgment. Id. Simmons claims that on the day he entered Hinkle's shed, he was operating under the mistaken belief that he had permission both to enter the shed and to remove items from it. He specifically asserts that Mitchell told him that the owner said the two of them could keep whatever items they wanted if they cleaned up the shed. He therefore argues that he lacked the requisite intent necessary to commit burglary and attempted theft. 1 In analyzing the reasonableness of Simmons's belief, we find no indication in the record that Simmons, prior to entering the shed, ever attempted to ascertain whether the owner was home or whether he might have specific instructions for the alleged cleaning project. Further, Hinkle testified that he kept the shed in a neat condition. A reasonable person certainly would wonder why he had been asked to clean up a shed that needed no

Indiana's burglary statute states, "A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony." Ind. Code

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