Shane L. Keller v. State of Indiana ( 2015 )

Feb 09 2015, 9:27 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Gregory F. Zoeller
Bargersville, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shane L. Keller, February 9, 2015
Appellant-Defendant, Court of Appeals Case No.
88A04-1404-CR-168
v. Appeal from the
Washington Superior Court
State of Indiana,
The Honorable Frank Newkirk, Jr.,
Appellee-Plaintiff. Judge
Cause No. 88D01-1307-FB-489
Kirsch, Judge.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 1 of 26
[1] Shane L. Keller was convicted following a jury trial of two counts of Class B
felony burglary,1 one count of Class C felony burglary,2 three counts of Class D
felony theft,3 and two counts of Class D felony receiving stolen property.4 The
trial court sentenced Keller to maximum sentences on each of the eight
convictions to run concurrently with one another, for an aggregate of twenty
years executed. After Keller admitted to being a habitual offender, the trial
court imposed a thirty-year enhancement to Count I, a Class B felony burglary
conviction, for a total executed sentence of fifty years. Keller appeals his
convictions and his sentence raising the following reordered and restated issues:
I. Whether the trial court abused its discretion when it admitted and
excluded certain evidence;
II. Whether the trial court abused its discretion in instructing the jury
regarding the definition of “dwelling” for the purpose of convicting
Keller of Class B felony burglary; and
III. Whether Keller’s convictions and sentences for theft and receiving
stolen property violate the prohibition against double jeopardy.5
1
See Ind. Code § 35-43-2-1(1).
2
See Ind. Code § 35-43-2-1.
3
See Ind. Code § 35-43-4-2(a).
4
See Ind. Code § 35-43-4-2(b). We note that, effective July 1, 2014, the statutes pertaining to burglary, theft,
and receiving stolen property were amended. Keller committed his crimes prior to July 1, 2014; therefore, we
use the statutes in effect at the time he committed the offenses.
5
Keller also contends that his fifty-year sentence is inappropriate in light of the nature of the offense and the
character of the offender. Because we remand to the trial court for resentencing, we do not address this issue.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 2 of 26
[2] We affirm in part, reverse in part, and remand for resentencing.
Facts and Procedural History
[3] Jeremy Hardwick’s great-grandparents lived in a farmhouse on property located
in Washington County, Indiana; a barn, a garage, and an outbuilding were also
located on the land. After Hardwick’s great-grandparents died in the late 1990s,
the farmhouse remained vacant. In October 2012, Hardwick, his wife, and two
children moved into Hardwick’s sister-in-law’s home, with the plan to remodel
and then move into the farmhouse. No one slept at the farmhouse during the
remodeling project; however, some food and most of the family’s belongings
were stored in the farmhouse. Hardwick also received his mail at the
farmhouse.
[4] Hardwick described the farmhouse as being in “pretty rough” condition
because it “[h]ad been sitting vacant for probably ten or twelve years.” Tr. at
503. Photographs taken of the farmhouse around May 2013 revealed that most
of the rooms were filled with boxes, bags, equipment, and assorted debris.
Def.’s Ex. A. Hardwick began the remodeling project in the spring of 2013 and
planned to do it alone. The project required Hardwick to do major renovations,
and Hardwick worked on those renovations about four or five hours each night.
At that time, he was also working at a factory job about six days a week, eight
hours a day, and each day, he stopped at the farmhouse property to feed
livestock.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 3 of 26
[5] On May 9, 2013, Hardwick stopped at the property after his factory shift. As he
entered the barn, which had been closed but not locked, Hardwick noticed that
several items had been moved from their normal place. When he inspected
other buildings, he saw that the locked garage door had been pried open.
Hardwick called the Washington County Sheriff’s Department (“Sheriff’s
Department”), and Deputy Joseph Keltner responded. Further investigation
revealed that Hardwick’s .22 caliber, semiautomatic rifle and shells had been
stolen from his truck, which had been parked in the barn. Also missing from
the barn were a socket set and some combination wrenches. A Stihl chainsaw
and a Stihl weed eater were missing from the garage.
[6] That same evening, realizing that other items of value were still on the property,
Hardwick and his wife bought four infrared “game cameras” and installed them
in the farmhouse and other main buildings on the farm. Tr. at 513. Each
camera was motion activated and took black and white images, which were
stored on a removable SD memory card (“SD card”). Id. at 652. Thereafter,
Hardwick checked the game cameras daily.
[7] On June 2, 2013, Hardwick and his wife arrived at the property and noticed
that the glass to the back door of the farmhouse was shattered. Several items
were missing from the farmhouse, including an air compressor, a Craftsman
nail gun, three cans of Zinsser Bulls Eye 1-2-3 primer, a circular saw, twenty
boxes of cherry laminate flooring, a spool of electrical wiring, a kitchen faucet,
drywall tools, and various items of food.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 4 of 26
[8] Hardwick called the Sheriff’s Department, and when Deputy Keltner
responded, they discovered that the farmhouse game camera had taken several
images (“June 2 photographs”). Contained within the June 2 photographs were
images of the male burglar’s profile (“State’s Exhibit 17”) and the distinctive
logo on the t-shirt he wore (“State’s Exhibit 16”). Removing the SD card from
the camera, Deputy Keltner and Hardwick viewed the June 2 photographs on
Deputy Keltner’s laptop; neither immediately recognized the man pictured.
After Deputy Keltner downloaded the June 2 photographs to his laptop, he
returned the SD card to Hardwick, who stored it in a drawer. That evening,
Hardwick installed a new SD card into the farmhouse game camera.
[9] Two days later, on June 4, 2013, Hardwick arrived at the farm and noticed
another door to the farmhouse was broken. Hardwick again called the Sheriff’s
Department, and this time Sergeant Wayne Blevins responded. Inside the
farmhouse, Sergeant Blevins found footprints that were imprinted with the Nike
logo. Hardwick found that a stainless-steel sink and ammunition, among other
things, were missing from the farmhouse. Sergeant Blevins viewed the pictures
on the SD card (“June 4 photographs”) and, like Deputy Keltner, downloaded
them to his laptop and returned the SD card to Hardwick.
[10] As part of the investigation, Deputy Keltner showed a photograph of the
burglar’s profile—introduced at trial as State’s Exhibit 17—to several Sheriff’s
Department deputies, individually, to see if they could identify the suspect.
Sergeant Blevins and Deputy James Strange, each of whom had known Keller
for twenty years, identified the suspect as Keller. Tr. at 651, 653, 657-59.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 5 of 26
Detective Brent Miller, who had known Keller for twenty-four years, was
shown the photograph of the burglar’s profile as well as two enlarged and
enhanced copies of that same photo. See State’s Exs. 17, 31, 34. Detective
Miller also identified the suspect as Keller. Tr. at 740-41, 790-92.
[11] Deputy Keltner obtained a warrant to search Keller’s residence. On July 11,
2013, deputies executed that warrant and seized from Keller’s closet a t-shirt
marked with the distinctive logo pictured in the June 2 photographs. Keller,
who was home during the search, admitted that the t-shirt belonged to him.
The officers also seized a can of the same primer that had been taken from the
farmhouse and saw no sign that Keller was priming any walls. The officers did
not find any other stolen items or Nike shoes. On July 12, 2013, the State
charged Keller in connection with the June 2 burglary with one count of Class
B felony burglary, one count of Class D felony theft, and one count of Class D
felony receiving stolen property. The State also alleged that Keller was a
habitual offender.
[12] Prior to trial, Keller made several phone calls from jail, which were recorded.
The State admitted and published each recording without objection. 6 On
August 23, 2013, Keller called his father (“Father”) and instructed:
You go over to my house and you go, you tell Michelle you want
papers out of the car and make sure there is no fucking hat, gloves, no
6
While admitted at trial, these recordings are not contained in the record before us. Therefore, we rely on
the transcription of these conversations.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 6 of 26
fucking paperwork in the glove box. Take all of that fucking shit with
you. I need all that out of the car.
Tr. at 725 (State’s Ex. 39). In the June 2 photographs, the burglar is wearing a
hat and gloves. Id. at 722-23.
[13] On September 6, 2013, while still in jail, Keller called James Cole, a neighbor
who lived across the street from Keller, saying:
Listen and listen good. Go to my house, go upstairs. Face your house
and look. That’s all I’m saying, don’t say no more. Don’t repeat what
I just said . . . . That’s all you got to do. I mean, about four or five up
and face your house and look around. . . . And everything, like I said,
I just kind of wanted to see if you’d take care of that one problem for
me. As far as I know, all they got is two pictures on me and it’s from a
trail camera. All I need for you . . . to do is that one thing and see
what’s over there that you think you can sell. If there’s something you
can sell let me know, write me a letter and tell me what you can get
out of it, get me some money to get me through til the verdict. . . .
But there’s five hundred things over there and I think you might be
able to do something with them, if you’re not just destroy them . . . .
You’ll be surprised, you’ll be like god damn. But you, I don’t think
they got anymore, they ain’t got no more charges or nothing against
me. Just that burglary over there.
Tr. at 717-18 (State’s Ex. 37).
[14] On October 9, 2013, Keller called Father and expressed frustration regarding
Cole. In that recording, Keller told Father, “Jamie was supposed to have
brought me money up here last month and I ain’t seen none of it, like usual.”
Id. at 721 (State’s Ex. 38). Father responded, “[W]ell, he got aggravated what
you said about him and he said . . . well he just dropped it. He said he should
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 7 of 26
have had them, that washing machine and dryer sold but he, you and him got
into it over the phone and he just dropped it.” Id. at 722. Keller responded,
“The reason, part of it, that I’m in here. Almost everything that was stolen on
that list is sitting on his front fucking porch.” Id.[15] Keller made additional phone calls to Father admitting his responsibility. On
September 24, 2013, Keller told Father, “I got myself into this fucking mess.”
Id. at 736. On November 1, 2013, Keller again told Father, “But like I said I
got myself into this mess. I’m going to have to get myself out of it you know.”
Id. at 738. Finally, on November 3, 2013, Keller called Father to complain,
“[T]hey’re wanting to give me more time than what Sterlin and time [sic] got
for that shit they done, compared to this burglary case.” Id. at 739-40. Father
responded, “Devon is looking pretty rough then too,” and Keller replied, “I
know, he’s got his, he ain’t got no pictures or nothing on his.” Id. at 740.
[16] Presumably based on these conversations, deputies searched Cole’s home on
November 14, 2013, and recovered from his porch several of Hardwick’s stolen
items, including the Stihl chainsaw, the Craftsman nail gun, and the stainless-
steel sink, which had been stolen May 9, June 2, and June 4, 2013, respectively.
Id. at 703-05. On November 25, 2013, the State also charged Keller for the
May 9 and June 4, 2013 burglaries, with one count of Class B felony burglary,
two counts of Class C felony burglary, three counts of Class D felony theft, and
one count of Class D felony receiving stolen property.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 8 of 26
[17] Keller’s trial commenced on February 18, 2014. Over Keller’s objection, the
State admitted into evidence the June 2 photographs and the June 4
photographs as State’s Exhibits 16 through18 and Exhibits 21 through 23,
respectively. Again, over Keller’s objection, the State also admitted copies of
those same photographs, which had been enlarged and enhanced by Indiana
State Police Trooper Robert Neal, as State’s Exhibits 27 through 34. Also, over
Keller’s objection, Sergeant Blevins, Deputy Strange, and Detective Miller
testified at trial that they had previously identified Keller as being the person
pictured in State’s Exhibit 17—the June 2 photograph depicting the burglar’s
profile. Id. at 651, 658-59, 741. Detective Miller testified that the person
pictured in the June 2 and June 4 photographs could not be Cole, who was
shorter and heavier than the man pictured. Id. at 792-93.
[18] The following was not admitted at trial. Keller asked out of the jury’s presence
to be allowed to try on the t-shirt bearing the distinctive logo to show the jury
how it fit. He also asked that he be able to show the jury his shoes. The trial
court granted Keller’s request on the condition that if Keller did so, the State
could cross-examine him, thereby opening the door to impeaching Keller’s
credibility. Id. at 769. Keller chose not try on the t-shirt or show his shoes to
the jury. Additionally, Keller’s request to introduce Sheriff’s Department
booking photographs, to show the jury that other arrested individuals also
matched Keller’s general description and body type, was also denied unless or
until one or more of the photographs became relevant.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 9 of 26
[19] Both parties proposed a jury instruction defining “dwelling” as it pertained to
the burglary charge. The trial court gave the following as Final Instruction
Number 17, over Keller’s objection that the last sentence of the instruction was
overbroad:
For purposes of the burglary statute, a dwelling is defined as a
building, structure, or other enclosed space, permanent or temporary,
moveable or fixed, that is a person’s home or place of lodging. Any
such place where a person keeps personal items with the intent to
reside in the near future is considered a dwelling.
Appellant’s App. at 596 (emphasis added).
[20] The jury found Keller guilty of two counts of Class B felony burglary (Counts I
and IV), one count of Class C felony burglary (Count VI), three counts of Class
D felony theft (Counts II, V, and VII), and two counts of Class D felony
receiving stolen property (Counts III and X). Id. at 891-92. Keller was found
not guilty of Counts VIII and IX, one count of Class C felony burglary and one
count of Class D felony theft, respectively. Following his convictions, Keller
admitted to being a habitual offender. On March 19, 2014, the trial court
ordered Keller to serve the maximum sentence for each of his convictions in the
Department of Correction, i.e., twenty years for each of Counts I and IV, eight
years for Count VI, three years for each of Counts II, V, and VII, and three
years for each of Counts III and X. These sentences were to be served
concurrently with each other, with the habitual offender enhancement of thirty
years added to Count I, for an aggregate sentence of fifty years executed. Keller
now appeals his convictions and his sentence.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 10 of 26
Discussion and Decision
I. Admission and Exclusion of Evidence
[21] Keller contends that the trial court abused its discretion by admitting certain
evidence and excluding other evidence. He contends that these evidentiary
errors impacted his defense at trial that he was not the burglar pictured in the
game camera photographs. The admission or exclusion of evidence is entrusted
to the discretion of the trial court; we therefore review the trial court’s decision
for an abuse of discretion. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App.
2012). An abuse of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before it or it
misinterprets the law. Id. In conducting our review, we consider the conflicting
evidence most favorable to the trial court’s ruling and any uncontested evidence
favorable to the defendant. Id.A. Admission of Evidence
[22] Keller asserts that the trial court abused its discretion when it: (1) allowed
testimony of the three deputies who identified Keller as the person pictured in
State’s Exhibit 17; and (2) admitted State’s Exhibits 27 through 34, the copies of
the June 2 photographs and the June 4 photographs that were enhanced and
enlarged by Trooper Neal. We address each of these claims in turn.
[23] Prior to trial, Keller filed a motion in limine, asking the court to exclude
Deputy Strange’s and Sergeant Blevin’s lay witness testimony that Keller was
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 11 of 26
the person pictured in State’s Exhibit 17.7 Appellant’s App. at 399. At that time,
Keller asserted that, because of the quality of the photograph, the only thing
that could be determined was that the suspect was probably a man and probably
Caucasian. Tr. at 241. Keller argued that the probative value of that testimony
was substantially outweighed by its unfair prejudice.8 Appellant’s App. at 399.
The trial court denied Keller’s motion, and the deputies testified at trial over
Keller’s objection.
[24] Both parties recognize that the trial court’s ruling was governed by Indiana
Rule of Evidence 701, pertaining to opinion testimony by lay witnesses.
Appellant’s Br. at 18, Appellee’s Br. at 24-25. Rule 701 provides, “If a witness is
not testifying as an expert, testimony in the form of an opinion is limited to [an
opinion] that is: (a) rationally based on the witness’s perception; and (b) helpful
to a clear understanding of the witness’s testimony or to a determination of a
fact in issue.” Citing to Groves v. State, 456 N.E.2d 720 (Ind. Ct. App. 1983)
and Gibson v. State, 709 N.E.2d 11 (Ind. Ct. App. 1999), trans. denied, Keller
contends, “There is a disagreement within the Court of Appeals as to whether
an opinion of a police officer identifying a defendant in a surveillance video or
photograph is helpful to the jury under Indiana Rule of Evidence 701.”
Appellant’s Br. at 18. He argues, “‘[A] witness’ opinion as to what [the
7
Keller did not object to the identification testimony of Detective Miller.
8
Keller’s argument of prejudice was, in part, based on the quality of the photograph. We note, however, that
during trial, when the State shared with defense counsel the copy of the photograph that had been shown to
the deputies, defense counsel admitted, “[T]he quality of my photo is not nearly that good.” Tr. at 243.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 12 of 26
photograph] is saying not only does not address itself to evidentiary competence
but invades the province of the jury.’” Appellant’s Br. at 19 (quoting Groves, 456
N.E.2d at 723). The State maintains that Keller incorrectly invites us to elevate
the dicta in Groves over the later-enacted Rules of Evidence and subsequent
caselaw, including Goodson v. State, 747 N.E.2d 1181, 1184 (Ind. Ct. App.
2001), trans. denied. We agree with the State and find that Goodson controls.
[25] In Goodson, the defendant relied upon Groves and argued that the trial court had
invaded the province of the jury when it allowed two officers to testify that
Goodson was the person depicted in videotapes and photographs of a drug sale.
747 N.E.2d at 1184. The Goodson court disagreed, holding that “the lay opinion
of a police officer familiar with the defendant was admissible under Indiana
Evidence Rule 701 . . . .” Id. (footnote omitted). The testifying officers had
known Goodson for two or three years; accordingly, this court found the trial
court had not abused its discretion in allowing the officers to testify because
“their lay opinion that the person shown in the videotape was Goodson was
helpful to the jury in determining the identity of the person depicted therein.”
Id. Here, each of the deputies had known Keller for twenty years or more, and
each gave his lay opinion that the person pictured in State’s Exhibit 17 was
Keller. Under the reasoning of Goodson, the trial court did not abuse its
discretion when it allowed the deputies to testify at trial.
[26] Keller also argues that the trial court abused its discretion when it admitted,
over his objection, State’s Exhibits 27 through 34. At trial, the State offered the
testimony of Trooper Neal, a detective with the “technical services office,” who
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 13 of 26
testified that State’s Exhibits 27 through 34 were copies of the previously
admitted June 2 and June 4 photographs, State’s Exhibits 16 through18 and 21
through 23, respectively,9 for which he had enlarged and adjusted the contrast
using an Adobe Photoshop CS5 program. Tr. at 625, 667, 681. Trooper Neal
explained that the Adobe program did not add or remove objects from the
photographs, instead, the program “improve[d] the appearance of a still
image.” Id. at 682. Assuming without deciding that the trial court abused its
discretion in admitting the enhanced exhibits, the error was harmless.10 State’s
Exhibit 17 was admitted without being enlarged or enhanced; therefore, the
enhanced photos were merely cumulative evidence because Deputy Strange and
Sergeant Blevins testified that they identified the suspect as Keller by looking
only at State’s Exhibit 17. Tr. at 651, 653, 657-59. In fact, Sergeant Blevins
testified he “was a hundred percent sure when [he] saw the photo that it was
Shane Keller.” Id. at 653. Error, if any, in the trial court’s admission of the
enhanced and enlarged photographs was, therefore, harmless.
9
While Keller objected at trial to the admission of the June 2 and June 4 photographs, he makes no claim on
appeal that the trial court abused its discretion in admitting those photographs. As such that claim is waived.
Instead, he contends that the trial court abused its discretion by admitting into evidence the “altered
photographs,” State’s Exhibits 27 through 34. Appellant’s Br. at 22.
10
We note, however, that in Arlton v. Schraut, 936 N.E.2d 831, 838 (Ind. Ct. App. 2010), trans. denied, this
court held it was an abuse of discretion for the trial court to exclude enlargements made from previously
admitted digital images where those enlargements were accurate representations of the evidence portrayed.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 14 of 26
B. Exclusion of Evidence
[27] Keller also contends that the trial court abused its discretion when it: (1)
excluded the Sheriff’s Department booking photographs of other arrested
individuals, and (2) denied Keller’s request to try on the t-shirt in front of the
jury and show the jury his shoes. We address these claims in turn.
[28] During trial, Keller moved to admit numerous Sheriff’s Department booking
photographs as photographs to use in the cross-examination of Detective
Miller, in order to show the jury that other arrested individuals also matched
Keller’s general description and body type. The State objected and filed a
motion in limine to exclude the booking photographs. Appellant’s App. at 526.
Discussion was held outside the presence of the jury, and the trial court granted
the State’s motion to exclude the photos “unless [a] mug shot becomes
relevant.” Tr. at 769. The trial court made clear that simply asking Detective
Miller “to identify mug shots from the jail would not make it relevant.” Id.The booking photographs were not admitted.
[29] Keller asserts that the booking photographs would have impeached the
deputies’ opinions that it was Keller pictured in the game camera at the
farmhouse. He argues that the photographs were not only relevant to the
course of investigation, but also to Keller’s defense of a biased misidentification.
During trial, the State confirmed with Detective Miller that his identification of
Keller was made after he looked at a photograph of the burglar’s profile.
Detective Miller testified that the booking photographs were “head on facial
shots,” not profile shots. Tr. at 783. He also testified that while it might be
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 15 of 26
“possible” to determine someone’s profile using a head-on shot, it would be
difficult, and he would prefer to have a profile shot. Id. Defense counsel, while
conceding that the booking photographs were “not ideal,” asked the court to
admit them on the basis that they depicted “all kinds of people,” and were
relevant to the issue of identity. Id. at 784. The trial court denied the admission
of the booking photos, finding that they were not relevant and would not be
admitted based on the “questions that have been asked at this point.” Id.
Detective Miller was not asked any more questions about the booking
photographs, and they were not admitted. Id. at 786.
[30] The trial court did not abuse its discretion. Here, Keller wanted the booking
photographs admitted to “put into evidence other possibilities of people who
have been in the system.” Id. at 749. This evidence was intended to impeach
the deputies’ previous testimony that Keller was pictured in State’s Exhibit 17.
Keller intended to ask Detective Miller if he was familiar with the way the
records were kept and whether the booking photographs were in compliance.
Tr. at 757. The trial judge inquired, “Well, once he does that, assuming that he
even can, and I don’t know if he can. Then once he’s done that then you’ve got
the burden of establishing some relevance.” Id. The trial judge asked defense
counsel if he was going to cross-examine Detective Miller using certain photos
to compare them against “the pictures taken at the house.” Id. Defense counsel
responded, “No.” Id. Keller has failed to prove that the photographs were
relevant. Furthermore, the exclusion of these photographs was harmless. Even
without the booking photographs, Keller was able to convey to the jury his
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 16 of 26
defense that he was not the individual pictured in the game camera
photographs. The jury was able to judge the quality of the June 2 and June 4
photographs and compare them against Keller’s profile as he sat at trial. We
cannot say that the trial court abused its discretion in excluding random
Sheriff’s Department booking photographs, the use of which was to suggest that
Exhibit 17 might depict someone other than Keller.
[31] Keller also argues that the trial court should have allowed him to try on and
show the jury the logo t-shirt and the shoes he was wearing when he was
arrested. In part, he contends that by showing the jury that the t-shirt did not fit
him in the same manner it fit the man pictured in the June 2 photographs and
by showing that his shoes were not made by Nike, he could show that he was
not the man pictured. Keller asserts that the trial court abused its discretion in
excluding this evidence because its admission would have undermined the
identification of Keller as the man in the farmhouse.
[32] We begin by noting that the trial court did not exclude this evidence; instead, it
held that Keller would be subject to cross-examination following the
demonstration. Keller chose not to admit the evidence and subject himself to
cross-examination. In the absence of context, which cross-examination could
have provided, Keller’s evidence would have been misleading. Regarding the
fit of the t-shirt, Keller admitted outside the presence of the jury that he had
gained a lot of weight since his arrest. Additionally, it was irrelevant what
shoes Keller was wearing at the time of his arrest, more than a month after the
crimes were committed.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 17 of 26
[33] Even if we consider the issue as an error in the exclusion of evidence, as Keller
asserts, any error was harmless. The t-shirt demonstration and admission of
shoes were intended to bolster Keller’s contention that he was not the one
pictured by the game camera. However, there was abundant evidence that
Keller was the person pictured by the game camera. Deputy Strange, Sergeant
Blevins, and Detective Miller, each of whom had known Keller for more than
twenty years, testified that Keller was the person caught on the game camera in
State’s Exhibit 17. Furthermore, during telephone calls from prison, Keller
repeatedly told Father, “I got myself into this mess.” Tr. at 738, 40. Finally,
Keller recognized that the State had pictures of him when, speaking to Father,
he said, “[T]hey’re wanting to give me more time than what Sterlin and time
[sic] got for that shit they done, compared to this burglary case.” Id. at 739-40.
Father responded, “Devon is looking pretty rough then too,” and Keller replied,
“I know, he’s got his, he ain’t got no pictures or nothing on his.” Id. at 740.
The demonstration of trying on the t-shirt and showing the jury Keller’s shoes
could not have overcome the properly admitted evidence that Keller was the
man pictured in State’s Exhibit 17.
II. Jury Instruction
[34] Keller next contends that the trial court abused its discretion when, for purposes
of Class B felony burglary, it instructed the jury regarding the definition of the
term dwelling. We afford trial courts broad discretion in the manner of
instructing a jury, and we review such decisions only for an abuse of that
discretion. Hayden v. State, 19 N.E.3d 831, 838 (Ind. Ct. App. 2014). “When
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 18 of 26
reviewing jury instructions on appeal, we look to (1) whether the tendered
instructions correctly state the law, (2) whether there is evidence in the record to
support giving the instruction, and (3) whether the substance of the proffered
instruction is covered by other instructions.” Id. We will reverse a conviction
only where the appellant demonstrates that an error in the jury instructions
prejudiced his substantial rights. Id. “[W]here a conviction is clearly sustained
by the evidence and the jury could not properly have found otherwise, we will
not reverse the conviction.” Id. (internal quotation marks omitted). “‘The
purpose of [a] jury instruction is to inform the jury of the law applicable to the
facts without misleading the jury and to enable it to comprehend the case
clearly and arrive at a just, fair, and correct verdict.’” Id. (quoting Dill v. State,
741 N.E.2d 1230, 1232 (Ind. 2001)).
[35] The difference between Class B and Class C felony burglary is the type of
building that is entered, i.e., burglary is enhanced if it takes place in a
“dwelling.” Ind. Code § 35-43-2-1. Due to the importance of this distinction,
both parties proposed a jury instructions on the definition of “dwelling.” Keller
proposed the following instruction, which tracked the statutory definition found
in Indiana Code section 35-31.5-2-107: “‘Dwelling’ means a building, structure
or other enclosed space, permanent or temporary, moveable or fixed, that is a
person’s home or place of lodging.” Appellant’s App. at 568. The State offered
the following proposed instruction, which added the italicized language:
For purposes of the burglary statute, a dwelling is defined as a
building, structure, or other enclosed space, permanent or temporary,
moveable or fixed, that is a person’s home or place of lodging. Any
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 19 of 26
such place where a person keeps personal items with the intent to reside at some
future time is considered a dwelling.
Id. at 544. The State cited White v. State, 846 N.E.2d 1026, 1031 (Ind. Ct. App.
2006), trans. denied, as the source of the additional language. The trial court
reviewed White and modified the instruction to one that neither party offered.
Final Instruction Number 17 read:
For purposes of the burglary statute, a dwelling is defined as a
building, structure, or other enclosed space, permanent or temporary,
moveable or fixed, that is a person’s home or place of lodging. Any
such place where a person keeps personal items with the intent to reside
in the near future is considered a dwelling.
Appellant’s App. at 596.
[36] In White, the victim, House, bought a residence in August 2003. One month
later, House was in the process of remodeling. While House was not yet living
at the home, he had moved furniture, clothes, beds, couches, refrigerator
freezers, a television set, a radio, tools, and a washer and dryer into the house.
White, 846 N.E.2d at 1031. House also kept his dog outside and visited several
times a day. On September 15, 2003, White broke into House’s home and stole
a radio and a television. White was convicted of Class B felony burglary.
[37] On appeal, White argued that the evidence was insufficient to sustain his
burglary conviction because the State failed to prove beyond a reasonable doubt
that the building was a dwelling. In finding that there was sufficient evidence to
sustain a conviction for Class B felony burglary, the White court reasoned:
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 20 of 26
In the instant case, the record clearly supports that House purchased
the property for use as a permanent residence. At trial, House testified
he was in the process of remodeling the house and spent time at the
house several times a day. House had moved furniture, clothes, beds,
couches, refrigerator freezers, a television set, a radio, tools, and a
washer and dryer into the house. In a similar case, Byers v. State, 521
N.E.2d 318, 319 (Ind. 1988), the victims were in the process of moving
out when their home was burglarized. The defendant argued because
they did not intend to sleep at that location the night of the break-in
nor did they intend to sleep there for the week remaining on their
lease, it was not a dwelling. The Byers court noted, however, that
because the victims intended to retain their right of dominion and
return to the premises it should be considered a dwelling. Although, in
the instant case the evidence established that House was in the process
of moving into the house, the difference between moving out and
moving in is too tenuous with regard to the facts at issue to make such
a distinction. As a result, it would defy logic to classify House’s house
as anything other than a dwelling for the purposes of the . . . burglary
statutes. While it is uncertain when House and his family were to take
up permanent residency in the house, it is clear that they intended to
do so in the near future. Therefore, we find that the state proved beyond
a reasonable doubt that the house was a dwelling.
White, 846 N.E.2d at 1031 (emphasis added) (citations omitted).
[38] Under the unusual facts of this case, we need not address whether the trial court
abused its discretion. Assuming without deciding that the jury was properly
instructed that a dwelling includes any such place “where a person keeps
personal items with the intent to reside in the near future,” we find insufficient
evidence to support the jury’s determination that the farmhouse was a dwelling
for purposes of a Class B felony burglary conviction.
[39] Hardwick’s great-grandparents died in the late 1990s and, thereafter, the
farmhouse remained vacant. In October 2012, Hardwick, his wife, and two
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 21 of 26
children moved into Hardwick’s sister-in-law’s home, with the plan to remodel
and then move into the farmhouse. Some food was kept in the freezer of the
farmhouse and most of the family’s belongings were also stored in the
farmhouse. Hardwick received his mail at the farmhouse and went by daily to
feed livestock.
[40] Even so, Hardwick described the farmhouse as being in “pretty rough”
condition because it “[h]ad been sitting vacant for probably ten or twelve
years.” Tr. at 503. Hardwick did not even start the remodeling project until the
spring of 2013 and planned to do it alone. The project required Hardwick to
tear out walls, install insulation, put up dry wall, paint, install new plumbing,
redo part of the electrical system, redo the kitchen cabinetry, put in new light
fixtures, and install a new tub, toilet, and vanity in the bathroom. Hardwick
worked on the renovations about four or five hours a night. At that time he was
also working at a factory job about six days a week. Photographs taken of the
farmhouse around May 2013 revealed that most of the rooms were filled with
boxes, bags, equipment, and assorted debris. Def.’s Ex. A.
[41] Indiana courts have held
burglary, like arson, to be an offense against the habitation. This is
reflected in the burglary statute itself, which provides for greater
penalties the closer the offense comes to endangering another’s life or
well-being. In determining what constitutes a dwelling, Watt v. State,
446 N.E.2d 644, 645 (Ind. Ct. App. 1983), purports that the Indiana
courts have given dwelling its plain and usual meaning. “The
operative word defining ‘dwelling’ is a ‘home’—a settled residence
house for a family and their personal possessions.”
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 22 of 26
Hayden, 19 N.E.3d at 837 (quoting White, 846 N.E.2d at 1031) (citations
omitted). During the February 2014 trial—more than eight months after the
June 4 burglary—Hardwick testified that he still lived with his relatives. Based
on this evidence, we cannot say that the State proved that Hardwick intended to
move into the farmhouse in the near future.
[42] To convict Keller of Class B felony burglary, the State had to prove that he
broke and entered a building or structure that was a dwelling, with intent to
commit a felony or theft therein. For Class C felony burglary, the State would
have to prove that Keller broke and entered any building or structure, with the
intent to commit a felony or theft therein. Ind. Code § 35-43-2-1. A crime is a
lesser included offense of another if it is impossible to commit the greater
offense without first having committed the lesser one. Bedgood v. State, 477
N.E.2d 869, 872 (Ind. 1985). Class C felony burglary is a lesser-included
offense of Class B felony burglary. Keller’s convictions for two counts of Class
B felony burglary reveal that the jury believed that Keller was the person who
broke into the farmhouse with the intent to steal Keller’s property. Here, while
finding that there was insufficient evidence to prove that Keller broke into a
dwelling, there was more than sufficient evidence to convict Keller of the lesser-
included offenses of Class C felony burglary on June 2, 2013 and again on June
4, 2013. We remand to the trial court with instructions to reduce Keller’s
convictions under Counts I and IV from Class B felony burglary to Class C
felony burglary and resentence accordingly. Additionally, we instruct the trial
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 23 of 26
court to resentence Keller’s enhancement for being a habitual offender to reflect
that Count I is a conviction for Class C felony burglary.
III. Double Jeopardy
[43] Finally, Keller argues that his convictions for theft and receiving stolen property
violate the prohibitions against double jeopardy. It is well established that two
or more offenses are the “same offense” in violation of Article I, section 14 of
the Indiana Constitution if, “with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)
(emphasis in original).
[44] Here, we look to the statutory elements. At the time Keller committed the
crime, Class D felony theft was defined as:
A person who knowingly or intentionally exerts unauthorized control
over the property of another person, with intent to deprive the other
person of any part of its value or use, commits theft, a Class D Felony.
[45] Ind. Code § 35-43-4-2(a). The crime of Class D felony receiving stolen property
was, in pertinent part, defined as:
A person who knowingly or intentionally receives, retains or disposes
of the property of another person that has been the subject of theft
commits receiving stolen property, a Class D Felony.
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 24 of 26
I.C. § 35-43-4-2(b). To prove that a person committed the crime of receiving
stolen property, therefore, the State is also required to prove that the stolen
object received was the subject of a theft. “Where, as here, the person who
committed the theft was also convicted of receiving that same stolen property,
then the elements of theft are inherently included in receiving stolen property.”
White v. State, 944 N.E.2d 532, 536 (Ind. Ct. App. 2011), trans. granted,
summarily affirmed on this issue, 963 N.E.2d 511, 520 (Ind. 2012). “In other
words, an individual cannot be convicted of stealing property and of receiving
that property when the spoils of victory are divvied up.” Id.Keller notes that the information for Count III, receiving stolen property,
alleged that he received, retained, or disposed of Hardwick’s Zinsser primer,
which was one of the items Keller was alleged to have taken in Count II, theft.
The information for Count X, receiving stolen property, alleged that he
received, retained, or disposed of a Stihl chainsaw, a Craftsman nail gun, and a
stainless-steel sink. Keller was charged with the theft of these same items as
follows: the Craftsman nail gun in Count II; the stainless-steel sink in Count V;
and the Stihl chainsaw in Count VII. Keller’s convictions for both theft and
receiving stolen property, therefore, violate the prohibition against double
jeopardy. We remand with instructions that the trial court vacate Counts III
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 25 of 26
and X, the receiving-stolen-property convictions and the sentences imposed
thereon.11
[46] We affirm in part, reverse in part, and remand for resentencing.
Friedlander, J., and Crone, J., concur.
11
As we noted above, Keller also contends that his fifty-year sentence is inappropriate in light of the nature
of the offense and the character of the offender. Because we remand to the trial court, in part, for
resentencing, we do not address this issue. However, because this issue could be raised on a subsequent
appeal, we remind Keller that an extensive criminal history is a significant factor in our evaluation of the
character of the offender when reviewing whether a sentence is inappropriate under Indiana Appellate Rule
7(B).
Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015 Page 26 of 26