FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STACY R. ULIANA GREGORY F. ZOELLER

Bargersville, Indiana Attorney General of Indiana

RICHARD C. WEBSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

THOMAS W. OSTER, II, )

)

Appellant-Defendant, )

)

vs. ) No. 84A05-1208-CR-437

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE VIGO SUPERIOR COURT

The Honorable David R. Bolk, Judge

Cause No. 84D03-1201-FC-220

August 9, 2013

OPINION - FOR PUBLICATION

BRADFORD, Judge
2

At approximately 7:00 p.m. on January 18, 2012, Bill Wolfe was in Large Ink, the

business in which he had his art studio, when he heard two bangs and glass shattering in 

the rear of the building. Wolfe stepped outside and called 911. When police arrived, 

entered the front of Large Ink, proceeded toward the rear, and announced themselves, 

they heard a crash. A glass panel in the door with access to an alley had been broken, 

and a mobile telephone and brick were found near the door. Appellant-Defendant 

William Oster, II was soon apprehended nearby. Oster bore fresh abrasions and cuts and 

was carrying a pouch containing two screwdrivers and a pair of pliers. It was later 

determined that the mobile telephone found near the door contained pictures of Oster. 

The State ultimately charged Oster with Class C felony burglary, Class A 

misdemeanor criminal mischief, and with being a habitual offender. Following a 

bifurcated trial, a jury found Oster guilty as charged and to be a habitual offender. The 

trial court sentenced Oster to seven years of incarceration for burglary and one year for 

criminal mischief, to be served concurrently, with that sentenced enhanced by eleven 

years by virtue of the habitual offender finding. Oster contends that the State failed to 

produce sufficient evidence to sustain his burglary conviction or the habitual offender 

finding, that his convictions violate prohibitions against double jeopardy, and that the 

trial court committed fundamental error in instructing the jury. While the State concedes 

that Oster’s convictions may not both stand, we conclude that Oster’s other claims are 

without merit. Consequently, we affirm in part, reverse in part, and remand with 

instructions. 

FACTS AND PROCEDURAL HISTORY
3

In January of 2012, Wolfe, an artist, painter, and sculptor, was renting studio space 

in Large Ink, a printing and sign fabrication shop in Terre Haute. The Large Ink building 

is located at 635 Ohio Street and had access to Ohio Street and an alleyway behind. At 

approximately 7:00 p.m. on January 18, 2012, Wolfe and Todd Stokes were at Large Ink 

and “heard the back door tug from the alley way[.]” Tr. p. 304. Wolfe left through the 

front door and drove his truck around to the alleyway behind Large Ink but did not see 

anything amiss. When Wolfe drove back around to the front of Large Ink, he noticed a 

man wearing grey camouflage pants and a stocking cap walking west on Ohio Street. 

Wolfe drove to a gasoline station approximately three blocks away and then decided to 

“make one ... more pass over at the, the shop.” Tr. p. 306. When Wolfe reentered Large 

Ink through the Ohio Street door, he heard two “bangs” and then glass shattering in the 

rear. Tr. p. 306. Wolfe stepped back outside, called 911, and began to walk to the 

alleyway behind Large Ink. 

Terre Haute Police Officer Daniel Armentrout and Officer Toney responded and 

entered Large Ink through the front door. As the officers entered Large Ink, they could 

hear someone “kicking or pulling” on a metal door that led to a back room, which room 

had access to the alleyway. Tr. p. 380. When Officer Armentrout yelled “Police,” he 

“hear[d] footsteps run into a door, and a loud crash.” Tr. p. 381. The officers opened the 

metal door and noticed that the door providing access to the alleyway had a window 

broken out of it. Officer Armentrout looked out of the window and saw a figure running 

south down an alleyway. 
4

Meanwhile, Wolfe had walked to the alleyway behind Large Ink and was still on 

the telephone with police dispatch, who informed him that “there’s an officer walking in 

your front door right now.” Tr. p. 308. Soon thereafter, Wolfe turned a corner and saw a 

man wearing a dark stocking cap and dark blue jacket heading south toward Walnut 

Street, an east-west street south of Ohio Street. Wolfe ran over to Walnut Street and saw 

a man wearing camouflage pants riding a bicycle west on Walnut Street. When asked at 

trial if the man wearing camouflage pants was the same person he had seen in the 

alleyway, Wolfe responded, “I don’t think, I don’t think it was the same guy, no.” Tr. p. 

310. 

A police officer soon apprehended Oster “coming out the alley” onto Walnut 

Street. Tr. p. 386. Oster bore fresh abrasions on the back of his head, right shin, lower 

left back, left shin, right midsection, and forehead. Oster was also in possession of a 

pouch that contained Phillips-head and flat-head screwdrivers and a pair of pliers. When 

Wolfe and police returned to the alleyway behind Large Ink, they found a brick and 

mobile telephone on the ground near the door. The mobile telephone contained several 

photographs of Oster. 

The State ultimately charged Oster with Class C felony burglary, Class A 

misdemeanor criminal mischief, and with being a habitual offender. In preliminary 

instructions, the trial court instructed the jury, in part, as follows: 

The crime of Burglary, a Class C Felony, as charged in Count One (1) is 

defined by law as follows: 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. Before you may convict the Defendant, the 

State must have proved each of the following beyond a reasonable doubt. 
5

One (1), the Defendant Thomas William Oster II; two (2) knowingly; three 

(3), broke and entered; four (4), the building or structure of Large Ink, 

L.L.C.; five (5), with intent to commit a felony, Theft, in it, by exerting 

unauthorized control over the property of Large Ink, L.L.C. 

Tr. p. 267. The trial court’s final instruction on the elements of Class C felony burglary 

was, for all intents and purposes, identical to its preliminary instruction. Following the 

guilt phase of Oster’s trial, the jury found him guilty of Class C felony burglary and Class 

A misdemeanor criminal mischief. 

During the habitual offender phase of Oster’s bifurcated trial, the State presented 

testimony from former Clay County adult probation officer Steven Bell and Brandon 

Loveless from the Indiana Parole Division. Bell supervised Oster when Oster was on 

probation in Clay County and knew him. Bell identified several certified documents 

establishing that Oster had several prior unrelated felony convictions in Clay County and 

one in Parke County. Loveless testified that he had supervised Oster and was familiar 

with his criminal history. Loveless testified that Oster was the same person named in the 

certified documents admitted into evidence by the State during Bell’s testimony. The 

jury found Oster to be a habitual offender. The trial court sentenced Oster to seven years 

of incarceration for burglary and one year for criminal mischief, both sentences to be 

served concurrently, and enhanced Oster’s sentence by eleven years by virtue of his 

habitual offender status. 

DISCUSSION AND DECISION

I. Whether the State Produced Sufficient Evidence to 

Sustain Oster’s Burglary Conviction
6

When reviewing the sufficiency of the evidence to support a conviction, we 

consider only the probative evidence and reasonable inferences supporting the verdict. 

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s role to assess 

witness credibility and weigh the evidence to determine whether it is sufficient to support 

a conviction. Id. We consider conflicting evidence in the light most favorable to the trial 

court’s ruling. Id. We affirm the conviction unless no reasonable fact-finder could find 

that the elements of the crime were proven beyond a reasonable doubt. Id. 

Oster contends that the State failed to produce evidence sufficient to sustain his 

burglary conviction, specifically, that it failed to establish his intent to commit theft 

within Large Ink. In its latest discussion on the topic of proving intent in the burglary 

context, the Indiana Supreme Court wrote:

Burglary is the breaking and entering of the building or structure of 

another person with the intent to commit a specific felony therein. Ind. 

Code § 35-43-2-1; Gilliam v. State, 508 N.E.2d 1270, 1270 (Ind. 1987); 

Yeagley v. State, 467 N.E.2d 730, 736 (Ind. 1984). ....

“Burglars rarely announce their intentions at the moment of entry,” 

Gilliam, 508 N.E.2d at 1271, and indeed many times there is no one around 

to hear them even if they were to do so. Hence, a burglar’s intent to 

commit a specific felony at the time of the breaking and entering “may be 

inferred from the circumstances.” Id.; see also Hampton v. State, 961 

N.E.2d 480, 487 (Ind. 2012) (“[T]he mens rea element for a criminal 

offense is almost inevitably, absent a defendant’s confession or admission, 

a matter of circumstantial proof.”); Kondrup v. State, 250 Ind. 320, 323-24, 

235 N.E.2d 703, 705 (1968) (“[T]he intent to commit a felony may be 

inferred from the circumstances which legitimately permit it.”). 

“Circumstantial evidence alone is sufficient to sustain a burglary 

conviction.” Kidd [v. State], 530 N.E.2d [287, 287 (Ind. 1988)]; accord 

Cash v. State, 557 N.E.2d 1023, 1025 (Ind. 1990) (“A conviction for 

burglary may be sustained by circumstantial evidence alone.”). 

Evidence of intent “need not be insurmountable,” Gilliam, 508 

N.E.2d at 1271, but there must be a “specific fact that provides a solid basis 

to support a reasonable inference that the defendant had the specific intent 
7

to commit a felony[.]” Freshwater [v. State], 853 N.E.2d [941, 944 (Ind. 

2006)]. The evidentiary inference pointing to the defendant’s intent must 

be separate from the inference of the defendant’s breaking and entering. 

Justice [v. State], 530 N.E.2d [295 , 297 (Ind. 1988)]; Kondrup, 250 Ind. at 

323, 235 N.E.2d at 705. The inference of intent must not derive from or be 

supported by the inference of breaking and entering. In other words, the 

evidence must support each inference—felonious intent and breaking and 

entering—independently, and neither inference should rely on the other for 

support. This is not to say, however, that the same piece of evidence 

cannot support both inferences.

Requiring independent evidence of intent is necessary to maintain 

the distinction between burglary and other criminal offenses involving 

property invasion such as criminal trespass, Ind. Code § 35-43-2-2, or 

residential entry, Ind. Code § 35-43-2-1.5. Permitting the felonious intent 

element to be inferred from the inference of breaking and entering would 

render the intent element meaningless and read it out of the statute. See 

Faulkner v. State, 260 Ind. 82, 87, 292 N.E.2d 594, 596 (1973) (“If the 

Legislature had intended to punish a breaking and entry by itself, as we 

have here, they would not have added the second element of specific intent. 

A reading of the statute clearly indicates that both elements are included.”).

Baker v. State, 968 N.E.2d 227, 229-30 (Ind. 2012) (footnotes omitted). 

We conclude that the State produced sufficient evidence to prove that Oster broke 

and entered Large Ink with the intent to commit theft within. First, Oster was caught 

with burglary tools, namely one Phillips-head screwdriver, one flat-head screwdriver, and 

a pair of pliers, tools that would be very helpful if one wished to gain access to cash 

registers, cash boxes, desks, drawers, etc. It is worth noting that there is evidence that 

Oster used a brick to break into Large Ink and no evidence whatsoever that Oster used his 

tools to do so. In other words, his possession of tools is evidence that supports an 

inference of intent to commit theft but does not derive from evidence of the breaking and 

entering. This fact neatly distinguishes this case from Freshwater, in which there was 
8

evidence that the screwdriver in Freshwater’s possession when he was apprehended had 

been used during the break-in. Freshwater, 853 N.E.2d at 942. 

Second, the very nature of the structure into which Oster broke—a retail 

business—is also independent evidence of his intent to commit theft. Common sense 

dictates that when one breaks into a retail business after-hours, it is more likely done with 

the intent to commit theft than, say, if one breaks into an empty warehouse. Retail 

businesses are likely to contain cash and/or easily-fenced items, such as computers. 

Third, the record severely undercuts the notion that Oster might have been seeking 

shelter, another at least plausible reason one might break into a structure. Oster was a 

resident of the Lighthouse Mission in Terre Haute at the time of the break-in and so 

would have had no need for alternate shelter. Oster’s possession of burglary tools, the 

nature of the structure into which he broke, and the absence of any indication that he 

broke into Large Ink for a reason other than theft are independent evidentiary facts

sufficient to sustain his burglary conviction.

II. Whether the State Produced Sufficient Evidence to 

Sustain the Finding that Oster Is a Habitual Offender

Oster contends that the State failed to establish that he is a habitual offender. 

Specifically, Oster contends that the certified documents are confusing because they list 

several different, albeit similar, names; Bell was insufficiently certain that Oster was the 

same person he had dealt with in the past; and Loveless had not supervised Oster in 

relation to any of his alleged prior convictions. “[T]he state may seek to have a person 

sentenced as a habitual offender for any felony by alleging, on a page separate from the 
9

rest of the charging instrument, that the person has accumulated two (2) prior unrelated 

felony convictions.” Ind. Code § 35-50-2-8(a). “The court shall sentence a person found 

to be a habitual offender to an additional fixed term that is not less than the advisory 

sentence for the underlying offense nor more than three (3) times the advisory sentence 

for the underlying offense.” Ind. Code § 35-50-2-8(h). 

Certified copies of judgments or commitments containing a 

defendant’s name or a similar name may be introduced to prove the 

commission of prior felonies. Schlomer v. State, 580 N.E.2d 950, 958 (Ind.

1991) (citing Andrews v. State, 536 N.E.2d 507 (Ind. 1989)). While there 

must be supporting evidence to identify the defendant as the person named 

in the documents, the evidence may be circumstantial. Id.; see also Coker 

v. State, 455 N.E.2d 319, 322 (Ind. 1983). If the evidence yields logical 

and reasonable inferences from which the finder of fact may determine 

beyond a reasonable doubt that it was a defendant who was convicted of the 

prior felony, then a sufficient connection has been shown. Pointer v. State, 

499 N.E.2d 1087, 1089 (Ind. 1986).

Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999). 

Oster notes that the documents produced by the State listed the perpetrator, 

variously, as “William Oster,” “Thomas W. Oster,” “Thomas W. Oster, II,” “Thomas 

William Oster, II,” and “Thomas Oster” and argues that there is insufficient evidence to 

prove that the same person committed all of the prior crimes or that he was that person. 

We disagree. The names listed on the documents are sufficiently similar to support an 

inference that they refer to the same person. More importantly, Loveless identified Oster 

in court and testified that he was familiar with Oster and Oster’s criminal record; that 

reviewing Oster’s criminal record was part of his supervision of him while on parole; and 

that, despite the slight naming differences, Oster was in fact the person referred to in all 

of the State’s certified documentation. See, e.g., Hernandez, 716 N.E.2d at 953
10

(concluding that testimony from prison officer that he was familiar with defendant and 

contents of his offender packet was sufficient to establish that defendant was person 

named in certified documentation of prior unrelated convictions). Oster’s argument in 

this regard is nothing more than an invitation to reweigh the evidence, which we will not 

do. The State produced sufficient evidence to sustain a finding that Oster is a habitual 

offender. 

III. Whether the Trial Court Committed 

Fundamental Error in Instructing the Jury

The trial court failed to instruct the jury that Oster, in order to have had the intent 

to commit burglary as charged, must have had the intent to deprive another person of any 

part of the value or use of that person’s property, which is an element of theft. See Ind. 

Code § 35-43-4-2(a). While acknowledging that he did not preserve the issue below, 

Oster contends that the trial court committed fundamental error in this regard. Put 

another way, Oster argues that the trial court committed fundamental error in failing to 

properly instruct the jury on mens rea. 

A claim that has been waived by a defendant’s failure to raise a 

contemporaneous objection can be reviewed on appeal if the reviewing 

court determines that a fundamental error occurred. See, e.g., Trice v. State, 

766 N.E.2d 1180, 1182 (Ind. 2002); Hayworth v. State, 904 N.E.2d 684, 

694 (Ind. Ct. App. 2009). The fundamental error exception is “extremely 

narrow, and applies only when the error constitutes a blatant violation of 

basic principles, the harm or potential for harm is substantial, and the 

resulting error denies the defendant fundamental due process.” Mathews v. 

State, 849 N.E.2d 578, 587 (Ind. 2006). The error claimed must either 

“make a fair trial impossible” or constitute “clearly blatant violations of 

basic and elementary principles of due process.” Clark v. State, 915 N.E.2d 

126, 131 (Ind. 2009). This exception is available only in “egregious 

circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003). 
11

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). 

We conclude that the trial court’s failure to instruct the jury on mens rea did not 

amount to fundamental error in this case. The overriding issue at trial was identity, not 

intent, and the Indiana Supreme Court has held that failing to properly instruct the jury on 

mens rea is not fundamental error when intent is not an issue at trial. See, e.g., Swallows 

v. State, 674 N.E.2d 1317, 1318 (Ind. 1996) (concluding that there was no fundamental 

error in failing to instruct on the specific intent to kill where “[t]he intent of the 

Defendant was not in issue, as the theory of defense revolved around proving the State 

could not show ‘beyond a reasonable doubt that my client, Mitch Swallows, is the one 

who had done all of these things’”). 

A review of the trial transcript reveals that Oster focused all of his trial energy on 

attacking evidence that he was the person who broke into Large Ink. Wolfe could not 

identify Oster as the person he saw in the alley behind the store the night of the break-in. 

Wolfe also testified that he twice saw a man wearing grey camouflage pants in the area 

around the time of the break-in. Oster’s cross-examination of Wolfe focused on Wolfe’s 

inability to identify the person he saw in the alley and Wolfe’s testimony that both the 

man in the alley and the man in the camouflage pants were wearing dark jackets. Oster 

would later argue that the man in the camouflage pants was likely the actual burglar. 

Officer Armentrout responded to the break-in at Large Ink and testified that Oster 

exhibited several abrasions and scratches when apprehended. Officer Armentrout 

characterized the wounds as fresh, allegedly suffered while fleeing through a broken 
12

glass door at Large Ink. Oster’s cross-examination again focused on identity, specifically 

attacking Officer Armentrout’s testimony regarding the freshness of the wounds. 

Terre Haute Police Detective Michael Mikuly testified primarily regarding a 

mobile telephone that was found next to the broken glass door at Large Ink. Detective 

Mikuly testified that the mobile telephone contained photographs of Oster. Oster’s crossexamination focused on the lack of DNA and fingerprint evidence gleaned from the 

mobile telephone, the lack of footprint evidence, the lack of DNA evidence collected 

from any broken glass, and the fact that the mobile telephone contained no specific 

identification of its owner. 

Finally, Oster’s final argument focused entirely on identity and included the 

following specific arguments: (1) Wolfe could not place Oster at Large Ink on the night 

of the break-in; (2) the State failed to establish that Oster’s wounds were caused by him 

“diving through this broken glass[,]” Tr. p. 529; (3) there was no DNA, blood, 

fingerprint, or footprint evidence tying Oster to the scene; (4) the State failed to establish 

that the mobile telephone belonged to Oster; and (5) the man in the camouflage pants was 

actually the person who broke into Large Ink, not Oster. In summary, at no point while 

cross-examining any State’s witness or during any argument did Oster deny, or even 

suggest, that no burglary had taken place—only that the State failed to prove that Oster 

was the burglar. Because mens rea was not at issue during trial, Swallows and similar 

cases control. The trial court’s failure to instruct the jury on all of the elements of theft 

did not amount to fundamental error. 

IV. Whether Oster’s Convictions for Burglary and Criminal 
13

Mischief Violate Prohibitions Against Double Jeopardy

Oster contends, and the State concedes, that Oster’s convictions for Class C felony 

burglary and Class A misdemeanor criminal mischief violate constitutional prohibitions 

against double jeopardy. Pursuant to Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999), 

Oster’s criminal mischief conviction should be vacated, because it is the one with “less 

severe penal consequences[.]” 

CONCLUSION

We conclude that the State produced sufficient evidence to sustain Oster’s Class C 

felony burglary conviction and the finding that he is a habitual offender. We also 

conclude that the trial court did not commit fundamental error in instructing the jury. We 

agree, however, that Oster’s conviction for Class A misdemeanor criminal mischief 

violates constitutional prohibitions against double jeopardy. We therefore remand with 

instructions to vacate Oster’s conviction and sentence for criminal mischief. 

The judgment of the trial court is affirmed in part, reversed in part, and remanded 

with instructions. 

BROWN, J., concurs.

RILEY, J., dissents with opinion.
14

IN THE

COURT OF APPEALS OF INDIANA

THOMAS W. OSTER, II, )

)

Appellant-Defendant, )

)

vs. ) No. 84A05-1208-CR-437

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

RILEY, Judge, dissenting

I respectfully dissent from the majority’s decision to affirm Oster’s conviction for 

burglary because I find insufficient evidence to support the conviction. Oster argues that 

the “there was no evidence of felonious intent to commit theft after the breaking and 

entering the Large Ink building.” (Appellant’s Br., p. 5). In order to convict a person of 

burglary, the State must prove beyond a reasonable doubt that he or she broke and 

entered the building or structure of another person with intent to commit a felony in it. 

I.C. § 35-43-2-1. Here, Oster does not deny that he broke and entered Large Ink’s 

building. Rather, he argues that the State failed to present sufficient evidence to prove 

that he did so with intent to commit a felony therein. 

To establish the “intent to commit a felony” element of a burglary charge, the 

State must prove beyond a reasonable doubt the defendant’s intent to commit the felony 

specified in the charging information. Freshwater v. State, 853 N.E.2d 941, 942 (Ind. 
15

2006). Intent to commit a given felony may be inferred from the circumstances, but 

some fact in evidence must point to a fact to commit the specified felony. Id. at 943. The 

evidentiary inference pointing to the defendant’s intent must be separate from the 

inference of the defendant’s breaking and entering. Justice v. State, 530 N.E.2d 295, 297 

(Ind. 1988).

Requiring independent evidence of intent is necessary to maintain the distinction 

between burglary and other criminal offenses involving property invasion such as 

criminal trespass, Ind. Code § 35-43-2-2, or residential entry, Ind. Code § 35-43-2-1.5. 

Permitting the felonious intent element to be inferred from the inference of breaking and 

entering would render the intent element meaningless and read it out of the statute. See 

Faulkner v. State, 260 Ind. 82, 87, 292 N.E.2d 594, 596 (1973) (“If the Legislature had 

intended to punish a breaking and entry by itself, as we have here, they would not have 

added the second element of specific intent. A reading of the statute clearly indicates that 

both elements are included.”).

 Here, the State alleged, and was required to prove, that Oster had the intent to 

commit theft when he broke and entered Large Ink. Oster claims that the State failed to 

meet its burden. Freshwater, 853 N.E.2d at 941, is instructive. There, Freshwater broke 

into a car wash but ran out when the alarm sounded. Id. When he was apprehended by 

the police, Freshwater was carrying a screwdriver that matched pry marks on the car 

wash door. Id. However, there was no evidence that Freshwater touched anything when 

he was inside the car wash or that he took anything with him when he left. Id. 

Freshwater was charged with and convicted of burglary. Id. 
16

On appeal, the Indiana Supreme Court explained that, “in order to sustain a 

burglary charge, the State must prove a specific fact that provides a solid basis to support 

a reasonable inference that the defendant had the specific intent to commit a felony.” Id. 

The court concluded that no such fact had been proven against Freshwater. Id. There 

was no evidence that he was near or approaching anything valuable in the car wash, there 

was nothing missing from the building or cash register, and the office appeared to have 

been undisturbed. Id. The court therefore reversed Freshwater’s conviction. Id. at 945.

Similarly, in Justice, 530 N.E.2d at 295, Justice entered Tammy Bryant’s home 

and walked into her bedroom wearing black socks on his hands. Id. When Bryant 

recognized him and called his name, Justice immediately left the house. Id. When the 

police arrived, they discovered that a screen had been removed from a dining room 

window and left on the ground outside and that the back door had been left open. Id. 

The State charged Justice breaking and entering Bryant’s residence with intent to commit 

theft. Id. A jury convicted him of burglary. Id. 

On appeal, the Indiana Supreme Court concluded that there was no fact in 

evidence that provided a solid basis to support a reasonable inference that the defendant 

had the specific intent to commit theft. Id. at 297. Although there was evidence of 

breaking and entering, there was no evidence that Justice touched, disturbed, or even 

approached any valuable property. Id. Accordingly, the court reversed Justice’s 

conviction. Id.

Here, as in Freshwater and Justice, the State has failed to prove a specific fact that 

provides a solid basis to support a reasonable inference that Oster had the specific intent 
17

to commit a felony. The method by which Oster entered the building suggests nothing 

more than that he broke in. He could have done so for any number of reasons that do not 

include theft. There is no evidence that Oster touched anything or took anything with 

him during his brief time in Large Ink. Except for the broken window, nothing in the 

business was disturbed. The fact that Oster was apprehended with two screwdrivers and 

a pair of pliers does not change this result. 

Although the evidence in this case might well support the conclusion that Oster 

“intended some undetermined sort of wrongdoing, mischief, misdeed, or immoral or 

illegal act[,] that is not the issue to be resolved.” Freshwater, 853 N.E.2d at 943 (quoting 

Gebhart v. State, 531 N.E.2d 211, 212 (Ind. 1988)). Where the State cannot establish 

intent to commit a particular underlying felony, criminal trespass is the appropriate 

charge. I would therefore reverse Oster’s burglary conviction.