Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015 Page 1 of 6

MEMORANDUM DECISION

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

Kurt A. Young

Nashville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Eugene Hill,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 24, 2015

Court of Appeals Case No.

49A04-1502-CR-43

Appeal from the Marion County 

Superior Court;

The Honorable Christina Klineman, 

Judge;

49G17-1410-F6-48234

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015 Page 2 of 6

[1] Eugene Hill appeals the sufficiency of evidence supporting his conviction of 

Level 6 felony residential entry.1

 We affirm. 

Facts and Procedural History

[2] In October 2014, Andrea Gilmore was living off and on in an apartment that 

had been leased by her father, who was no longer living in the apartment due to 

illness. Gilmore kept most of her clothing and some other possessions in the 

apartment, and she intended to take over her father’s lease because he would 

not be returning.

[3] At 8 a.m. on October 13, Gilmore returned to the apartment to change her 

clothes before going to work. When she unlocked the door and entered the 

residence, she immediately noticed a strong odor of urine. As she walked 

further into the apartment she noticed Hill sitting on the couch crying. Gilmore 

knew Hill, who had been at the apartment on other occasions, but he did not 

have a key to the apartment and she had not given him permission to enter on 

this date. Gilmore asked Hill what he was doing, why it smelled “like pee,” 

(Tr. at 26), and “what the f*** is goin’ [sic] on?” (Id.) When she noticed her 

clothing torn up in pieces on the floor and wet with urine, she asked why her 

clothes smelled like urine, and “that’s when everything went crazy.” (Id. at 27.) 

Hill “hopped up” off the couch, “knocked” her back, and “pounded on” her. 

(Id.) Hill punched Gilmore with his fists and kicked her as he accused her of

 

1 Ind. Code § 35-43-2-1.5 (2014). 
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015 Page 3 of 6

being “out havin’ sex,” (id. at 28), and he threatened to break her hands so she 

could no longer work as a hair dresser. Gilmore’s uncle, who lived in an 

adjacent apartment, began pounding on her apartment door. When the 

pounding stopped, Hill fled. 

[4] A few moments later, Gilmore’s uncle returned with the police. They found a 

screen had been broken out of a window into Gilmore’s apartment and the 

window had been raised. The screen was not normally on the ground where it 

was found. Gilmore’s left eye was swollen shut and had scratches above it, and 

she had cracked ribs. 

[5] The State charged Hill with level 6 felony intimidation,2 level 6 felony 

residential entry, class A misdemeanor battery resulting in bodily injury,3 and 

class B misdemeanor criminal mischief,4 and it alleged Hill was an habitual 

offender.5

 Hill waived his right to a jury trial. After the State presented all of its 

evidence, the court granted Hill’s motion to dismiss the intimidation charge. 

After Hill presented evidence, the court found Hill guilty of the remaining 

crimes and entered a conviction of level 6 felony residential entry. Hill agreed 

he was an habitual offender in exchange for the State’s agreement he would 

receive a three-year sentence – one year for residential entry and two years for 

 

2 Ind. Code § 35-45-2-1(a)(2) (2014)

3 Ind. Code § 35-42-2-1(b)(1).

4 Ind. Code § 35-43-1-2(a).

5 Ind. Code § 35-50-2-8. 
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015 Page 4 of 6

being an habitual offender. The court accepted that agreement and sentenced 

Hill accordingly. 

Discussion and Decision

[6] When an appellant challenges sufficiency of evidence supporting a conviction, 

we do not reweigh the evidence or assess the credibility of witnesses. Willis v. 

State, 27 N.E.3d 1065, 1066 (Ind. 2015). Rather, considering only the facts and 

inferences most favorable to the judgment, we affirm if “there is substantial 

evidence of probative value supporting each element of the offense such that a 

reasonable trier of fact could have found the defendant guilty beyond a 

reasonable doubt.” Id. 

[7] Residential entry occurs when a person “knowingly or intentionally breaks and 

enters the dwelling of another person.” Ind. Code § 35-43-2-1.5. Hill asserts he 

had consent to be in the apartment. “Lack of consent is not an element of the 

offense [of residential entry that] the State is required to prove.” McKinney v. 

State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995). Rather, the defendant has the 

burden to raise the defense of consent. Holman v. State, 816 N.E.2d 78, 81 (Ind. 

Ct. App. 2004), trans. denied. See also Ind. Code § 35-41-3-7 (“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.”). “Upon invoking mistake of fact as a defense, the 

burden shifts to the defendant to satisfy three elements: (1) that the mistake be 

honest and reasonable; (2) that the mistake be about a matter of fact; and (3) 
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015 Page 5 of 6

that the mistake negate the culpability required to commit the crime.” Chavers 

v. State, 991 N.E.2d 148, 151 (Ind. Ct. App. 2013) (internal citations and 

quotations omitted), trans. denied. Thus, to avail oneself of the defense of 

consent, a person’s belief that he has permission to enter must be reasonable. 

McKinney, 653 N.E.2d at 118. 

The State, however, retains the ultimate burden of proving beyond a 

reasonable doubt every element of the charged crime, including 

culpability or intent, which would in turn entail proof that there was 

no reasonably held mistaken belief of fact. In other words, the State 

retains the ultimate burden of disproving the defense beyond a 

reasonable doubt. The State may meet its burden by directly rebutting 

evidence, by affirmatively showing that the defendant made no such 

mistake, or by simply relying upon evidence from its case-in-chief.

Chavers, 991 N.E.2d at 151-52.

The trial court, in explaining why it found Hill guilty of residential entry, noted 

testimony Hill did not have a key to the property and evidence the window had 

been opened and the screen broken. It explicitly noted

the Court did not believe Mr. Hill. Because a person who lives at a 

residence or dwelling would not—a reasonable person wouldn’t 

urinate all over their apartment, nor the clothes of another person 

livin’ [sic] in that apartment. Simply put, the Court had to weigh 

credibility of Mr. Hill . . . and the credibility of Ms. Gilmore, and the 

court did not believe Mr. Hill. 

(Tr. at 60-61.)

[8] It is the trial court’s prerogative to weigh the evidence and to determine 

credibility in reaching its judgment. Transcon. Ins. Co. v. J.L. Manta, Inc., 714 

N.E.2d 1277, 1284 (Ind. Ct. App. 1999). Gilmore, who resided in the 
Court of Appeals of Indiana | Memorandum Decision 49A04-1502-CR-43 | August 24, 2015 Page 6 of 6

apartment, testified Hill had not been given permission to be there that day,

nor, to her knowledge, had he been given a key.6

 When she saw Hill in the 

apartment, she immediately asked what he was doing and “what the f*** is 

goin’ [sic] on?” (Tr. at 26.) Those questions suggest she had not consented to 

his presence in the apartment. 

[9] Even if Hill believed he had consent to enter the apartment, such belief was not 

reasonable when he entered by breaking a screen and crawling through a 

window. See Mitchell v. State, 712 N.E.2d 1050, 1055 (Ind. Ct. App. 1999) 

(although Mitchell had lived in home for a time, he had been told to leave on 

two occasions, and although he claimed he entered with a key, police did not 

find the key where he claimed he placed it).

[10] The evidence is sufficient to demonstrate beyond a reasonable doubt that Hill 

committed residential entry and, accordingly, we affirm.

[11] Affirmed.

Crone, J., and Bradford, J., concur.

 

6 Hill argues he cannot be convicted of residential entry into Gilmore’s apartment because the apartment was 

leased by her father, not her. Regardless who leased the apartment, Gilmore testified her father was not 

returning to the apartment due to illness, she kept all of her clothing there, she sometimes slept there, and she 

intended to take over the lease. Under these facts, we hold no reversible error resulted from the State 

charging Hill with entry of Gilmore’s residence, as Hill was not misled about the location of the crime 

alleged. See, e.g., Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987) (finding no reversible error in charge for 

burglarizing the New Mount Olive Baptist Church, where charge alleged building broken and entered was 

owned by Southern Baptist Mission Board, which held the mortgage, but evidence demonstrated ownership 

was in the New Mount Olive Baptist Church congregation itself, because defendant was not misled about the 

location of the burglary and could prepare a defense).