Jennifer Nelson for www.theindianalawyer.com
The Indiana Court of Appeals found sufficient evidence to conclude that a man’s house qualified as a dwelling, thereby supporting a defendant’s burglary conviction. But the judges sua sponte reviewed the trial court’s entry of judgment and sentencing order and decided to send the matter back to the lower court.
Jeffrey Hayden appealed his conviction of Class B felony burglary, arguing insufficient evidence. Hayden and several others were seen by neighbors at the home of Ronald Pritchard removing items from it. Pritchard had not lived in the home for about a year because he had been hospitalized and later placed in a nursing home.
Hayden was convicted of Class B felony burglary and Class D felonies theft and residential entry. He admitted to being a habitual offender. The trial court only entered a judgment on the burglary count and sentenced him to 12 years, enhanced by 12 years due to his status as a habitual offender.
In Jeffrey Z. Hayden v. State of Indiana, 55A04-1403-CR-116, Hayden argued that Pritchard’s house did not satisfy the statutory definition of a dwelling since he did not live in it when the crimes took place. Dwelling is defined as a space that is a person’s home or place of lodging.
Although Pritchard did not live there, the electricity remained on, his mail was delivered there, his possessions remained there, and someone took care of the house. Pritchard, at some point after leaving the home, intended to move back in but admitted that it may not be possible because of his health. This is sufficient to say that the house is Pritchard’s home under statute, the judges held.
Hayden also claimed his jury instruction defining “dwelling†should have been admitted, which in addition to the statutory definition, included language that says a house loses its character as such for the purposes of burglary if the occupant leaves it without the intention to return. He based the language on an instruction from Carrier v. State, 227 Ind. 726, 89 N.E.2d 75 (Ind. 1949). While the statement is not incorrect, the COA couldn’t conclude there is evidence to support the request for the instruction. Evidence shows Pritchard intended at some point to return to the home.
The judges found that the charging information was not unconstitutionally vague. Hayden argued that he was not adequately informed of the charges against him, making him unable to prepare a defense.
The judges sua sponte looked at the entry of judgment and sentencing order. Based on the record, the judges couldn’t tell whether the entry of judgment on the theft and residential entry convictions were barred by double jeopardy, should have been merged or whether the court simply declined to enter judgment. Since residential entry is a lesser-included offense of burglary and the guilty verdicts relied upon the same evidence, this violates double jeopardy, Judge L. Mark Bailey wrote. They reversed the conviction and remanded with instructions to vacate the residential entry conviction.
The theft conviction is not barred by double jeopardy principles, so the judges remanded with instructions for the trial court to determine whether to enter judgment and sentence or to vacate the jury’s guilty verdict.
