Ricky Eugene Arion v. State of Indiana

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
Mar 20 2013, 9:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN KNECHT GREGORY F. ZOELLER
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RICKY EUGENE ARION, )
)
Appellant-Defendant, )
)
vs. ) No. 08A04-1203-CR-115
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CARROLL SUPERIOR COURT
The Honorable Kurtis G. Fouts, Judge
Cause No. 08D01-1108-FD-67
March 20, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Ricky Arion (Arion), appeals his conviction for Count I,
attempted residential entry, Ind. Code §§ 35-43-2-1.5; -41-1-5; and his adjudication as an
habitual offender, I.C. § 35-50-2-8.
We affirm.
ISSUES
Arion raises two issues, which we restate as follows:
(1) Whether the trial court abused its discretion by declining to issue Arion’s
proposed jury instruction regarding the presumption of innocence; and
(2) Whether the trial court abused its discretion by declining to issue a jury
instruction on a lesser included offense of attempted criminal trespass.
FACTS AND PROCEDURAL HISTORY
On August 17, 2011, in the early morning hours, a man walked onto the back
deck of Mary DeFord’s (DeFord) home in Delphi, Indiana. DeFord resided there with
her poodle, Lilly. The back door of the home led out to the back deck and was locked.
Lilly “bolted to the door with a growling bark” and DeFord peered out of a shade but did
not see anyone. (Transcript Vol. I p. 31). Later that same day, DeFord checked her “trail
cam,” an infrared camera with a motion detector that she had set up on the deck. (Tr.
Vol. I p. 27). Pictures from the camera depicted a man who was unknown to DeFord on
her deck without her permission. The man had a fanny pack and a flashlight. One photo
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depicted him “on the deck reaching for the doorknob.” (Tr. Vol. II p. 19). DeFord called
the police and showed them the trail cam pictures.
On August 19, 2011, again in the early morning hours, the same man returned to
DeFord’s back deck. That night, DeFord had left the outside lights on. Later that
morning, DeFord checked her trail cam and saw pictures of the man on her back deck.
DeFord went outside to investigate and a patio table had been moved from the deck to the
yard. A green five gallon bucket, which had previously been on the deck, was found
underneath one of the other windows of the house. DeFord gave the photos to the police.
Police investigated and examined the photos from the trail cam. The infrared
photos illuminated a large, distinctive tattoo on the man’s left bicep. The images were
disseminated among the police. A police officer who knew Arion recognized the tattoo
as similar to one Arion had. Arion came to the police station to have his upper body and
tattoos photographed. Arion told police that the tattoo was “one of a kind, that no one
else had had that tattoo.” (Tr. Vol. I p. 72).
Police later obtained a warrant and searched Arion’s truck and his residence,
where he lived with his father. They seized items from Arion’s truck, including a black,
form-fitting long-sleeved shirt and tan colored work gloves. From Arion’s garage, the
police seized a flashlight with a black lanyard and which used triple A batteries; a black
fanny pack with two triple A batteries; two pairs of shoes with some mud and grass on
the bottoms; gray sweat pants soiled with dirt; a gray form fitting shirt; gray and maroon
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colored work gloves, and a gray fabric shirt made into a skull cap. Arion was
subsequently arrested.
On August 22, 2011, the State filed an Information charging Arion with Count I,
attempted residential entry, a Class D felony, I.C. §§ 35-43-2-1.5; -41-1-5. On August
30, 2011, the Stated filed a motion to amend the Information to allege that Arion was an
habitual offender, I.C. § 35-50-2-8, which the trial court granted on September 19, 2011.
On January 10 and 11, 2012, a bifurcated jury trial was held. Arion’s girlfriend
testified that one pair of shoes found at Arion’s residence were his. Arion’s father
testified that although he and Arion lived together, Arion had access to the items that the
police seized from the garage. The State also elicited testimony from Dustin Inman
(Inman), a fellow inmate while Arion awaited trial. Arion told Inman that he had found
out that DeFord was an elderly woman who lived alone in a secluded house in the
country. Arion had been informed that DeFord was an easy target, and that her house
was easy to break into. Arion said that he had been to DeFord’s a “few different times,”
moved things around, looked in windows, and stood on “different things.” (Tr. Vol. I p.
92). He admitted to Inman that pictures from the trail cam were of him and that he had
disguised his appearance by tying his hair back in some manner. Arion told Inman that
the police had a picture showing his tattoo, but did not understand how his tattoo
appeared despite wearing a long-sleeved shirt.
The State also produced testimony from a police officer on how the trail cam
images could depict Arion’s tattoo under his shirt. Police purchased a black, form-fitting
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long-sleeved shirt similar to the one seized from Arion’s residence and depicted in the
trail cam photos. The police simulated dark conditions and used DeFord’s trail cam to
take pictures of a police officer who wore the long-sleeved shirt and had three tattoos on
his back and arms. Shot from a similar distance from the trail cam, two of the police
officer’s tattoos were visible in the trail cam photos.
During trial, Arion submitted proposed preliminary and final jury instructions,
including the following Preliminary Instruction No. 2:
If the evidence in this case is susceptible of two constructions or
interpretations, each of whom [sic] appears to you to be reasonable, and one
of which points to the guilt of the accused and the other to his innocence, it
is your duty, under the law, to adopt that interpretation which is consistent
with the accused’s innocence and reject that which points to his guilt.
(Appellant’s App. p. 41). The trial court refused the instruction because it was already
covered by its instructions, which were taken from the Indiana Pattern Jury Instructions.
Arion also tendered a proposed final jury instruction requesting instruction on criminal
trespass as a lesser included offense. The trial court refused to issue this instruction
because the “evidence presented would [not] lead to a criminal trespass charge.” (Tr.
Vol. II p. 119).
The jury found Arion guilty as charged and adjudicated him to be an habitual
offender. On February 23, 2012, the trial court sentenced Arion to three years’
incarceration at the Department of Correction on Count I, enhanced by four and one-half
years for the habitual offender adjudication.
Arion now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Standard of Review
Arion first contends the trial court abused its discretion by refusing his tendered
instruction. Instructing the jury is a matter within the discretion of the trial court.
VanWanzeele v. State, 910 N.E.2d 240, 246 (Ind. Ct. App. 2009), trans. denied. As such,
we will reverse a trial court’s decision regarding jury instructions only for an abuse of
discretion. Id. A trial court erroneously refuses to give a tendered instruction, or part of
a tendered instruction, if: (1) the instruction correctly sets out the law; (2) evidence
supports the giving of the instruction; and (3) the substance of the tendered instruction is
not covered by the other instructions given. Overstreet v. State, 783 N.E.2d 1140, 1164
(Ind. 2003), cert. denied, 540 U.S. 1150 (2004).
II. Presumption of Innocence
Arion contends that the trial court committed reversible error by declining to give
his Preliminary Instruction No. 2. He asserts that this instruction concerned the
presumption of innocence and the duty of the jury to reconcile the evidence consistent
with the defendant’s innocence, correctly stated the law and was not covered by any of
the instructions of the trial court. In Robey v. State, 454 N.E.2d 1221, 1222 (Ind. 1983),
the supreme court held that where the defendant tenders a jury instruction that advises
“the jury that the presumption of innocence prevails until the close of the trial, and that it
is the duty of the jury to reconcile the evidence upon the theory of the defendant’s
innocence if they could do so,” failure to give the instruction is reversible error.
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Recently, this court in Lee v. State, 964 N.E.2d 859, 865 (Ind. Ct. App. 2012), trans.
denied, concluded that the trial court’s rejection of an instruction virtually identical to
that submitted by Arion constituted an abuse of discretion. Relying upon Lee, Arion
argues that the trial court here committed reversible error by rejecting his instruction.
In Lee, the trial court rejected Lee’s instruction and found adequate its instructions
on 1) keeping an open mind and refraining from conclusions until the case was submitted
for deliberation; and 2) the State’s burden of proof to overcome the presumption of
innocence. Id. at 863-64. On appeal, this court concluded that the trial court’s
“instructions did not adequately instruct the jury on the presumption of innocence.” Id. at
865. Specifically, the court found that no “instruction was given to the jury adequately
explaining the jury’s duty to reconcile the evidence upon the theory of the defendant’s
innocence if they could do so.” Id. However, the court noted that the State did not raise
the issue of harmless error. Id. at 864. Here, the State has done so.
Arion’s claim is therefore subject to the harmless error analysis. See
VanWanzeele, 910 N.E.2d at 247. Before a defendant is entitled to reversal based on a
perceived instructional error, he must affirmatively show that the error prejudiced his
substantial rights. See id. “Errors in the giving or refusing of instructions are harmless
where a conviction is clearly sustained by the evidence and the jury could not properly
have found otherwise.” Lee, 964 N.E.2d at 862-63.
Although no one witnessed Arion at DeFord’s home on August 18 and 19, 2011,
the State offered evidence from DeFord’s trail cam. It is undisputed that these photos
7
captured a man on DeFord’s back porch without her consent. Arion argues that the
photographs are unclear. However, the photos clearly depict the man and illuminate a
uniquely shaped tattoo on the man’s bicep. Arion told police that the tattoo was one of a
kind and photographs of Arion’s tattoo were submitted into evidence. Police officers
conducted an experiment demonstrating how a tattoo might be illuminated under similar
conditions with infrared light, which the trail cam used.
Arion states that it was not obvious what the man was doing on DeFord’s porch.
Yet, one photograph depicts the man reaching for the back door. Arion protests that no
door knob is visible in the photographs. A police officer testified to the location of both
the back door to DeFord’s home and the doorknob. He stated that the man’s hands were
reaching toward the same location. Finally, Inman testified that Arion told him that he
was depicted in the trail cam photos, that DeFord’s home “was an easy[,] easy target,”
and that he had been to DeFord’s a “few different times.” (Tr. Vol. I p. 92-3).
Taken together, the foregoing considerable evidence of guilt is such that even had
the rejected instruction been read, the outcome of trial would not have changed. See Dill
v. State, 741 N.E.2d 1230, 1234 (Ind. 2001). Thus, even assuming for the sake of
argument that the trial court erred in refusing Arion’s tendered instruction on the
presumption of innocence, the error was harmless.
III. Criminal Trespass
Arion argues that the trial court abused its discretion by refusing to instruct the
jury on criminal trespass as a lesser included offense of residential entry. When called
8
upon by a party to instruct a jury on a lesser included offense of the crime charged, a trial
court must perform a three-step analysis. Higgins v. State, 783 N.E.2d 1180, 1187 (Ind.
Ct. App. 2003), trans. denied. First, it must compare the statute defining the crime
charged with the statute defining the alleged lesser included offense to determine if the
alleged lesser included offense is inherently included in the crime charged. Id. Second,
if a trial court determines that an alleged lesser included offense is not inherently
included in the crime charged under step one, then it must determine if the alleged lesser
included offense is factually included in the crime charged. Id. If the alleged lesser
included offense is neither inherently nor factually included in the crime charged, the trial
court should not give an instruction on the alleged lesser included offense. Id. Third, if a
trial court has determined that an alleged lesser included offense is either inherently or
factually included in the crime charged, it must look at the evidence presented in the case
by both parties to determine if there is a serious evidentiary dispute about the element or
elements distinguishing the greater from the lesser offense and if, in view of this dispute,
a jury could conclude that the lesser offense was committed but not the greater. Id. It is
reversible error for a trial court not to give an instruction, when requested, on the
inherently or factually included lesser offense if there is such an evidentiary dispute. Id.However, if the evidence does not so support the giving of a requested instruction on an
inherently or factually included lesser offense, then a trial court should not give the
requested instruction. Id.9
Criminal trespass is not an inherently lesser included offense of residential entry.
Id. Thus, under the facts of this case, we consider whether criminal trespass was a
factually included lesser offense. An offense is factually included if the charging
instrument alleges that the means used to commit the crime charged include all of the
elements of the alleged lesser included offense. Wright v. State, 658 N.E.2d 563 (Ind.
1995). Examining the crimes of burglary and criminal trespass, the supreme court has
held that alleging that a defendant “did knowingly or intentionally ‘break and enter’ the
residence of another,” sufficiently alleged facts constituting criminal trespass, thus
making criminal trespass a factually included lesser offense of residential entry. J.M. v.
State, 727 N.E.2d 703, 705 (Ind. 2000). Here, the State alleged that Arion did
“knowingly or intentionally with the intent to commit the crime of residential entry,
attempt to commit the crime of residential entry and did engage in conduct constituting a
substantial step toward commission of the crime, to-wit, did travel to the residence of
[DeFord] and attempt to enter that residence.” (Appellant’s App. p. 10). Because the
Information alleged an attempt to commit residential entry, it follows that the State has
alleged that the means used to commit the crime charged included all the elements of
criminal trespass. See Young v. State, 846 N.E.2d 1060, 1062-63 (Ind. Ct. App. 2006).
We therefore conclude that criminal trespass is a factually included offense of the charge
of residential entry.
Turning to step three, we consider whether there is a serious evidentiary dispute
regarding the distinction between residential entry and criminal trespass. A serious
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evidentiary dispute exists where the jury can conclude that the lesser offense was
committed and the greater offense was not. Griffin v. State, 963 N.E.2d 685, 691 (Ind.
Ct. App. 2012). In this regard, Arion argues that there is a serious evidentiary dispute
“as to whether the State proved an attempt to break and enter DeFord’s house.”
(Appellant’s Br. p. 22). The State, however, contends that no serious evidentiary dispute
existed since “the evidence overwhelmingly established that [Arion] attempted to break
and enter DeFord’s home.” (Appellee’s Br. p. 19).
Here, Arion presented no testimony to contradict DeFord’s testimony that she
locked her doors, nor disputed that an offense had occurred. A police officer testified
that a trail cam photo depicted Arion standing in front of DeFord’s back door and putting
his hand where the door knob was located. Although Arion relies on his closing
argument that the picture “does not show that he has broken into or is going into the
structure” or that “there is no door […] in the picture,” we do not find that this creates a
serious evidentiary dispute. (Tr. Vol. II p. 146). Rather, the bulk of record demonstrates
that the dispute in this case focused on whether Arion’s tattoos were similar that of the
perpetrator. Without a serious evidentiary dispute on the element of breaking, the trial
court did not abuse its discretion by refusing to give Arion’s proposed criminal trespass
instruction. See VanWanzeele, 910 N.E.2d at 245.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court’s decision to decline
Arion’s proposed jury instruction on the presumption of innocence amounts to harmless
11
error and (2) the trial court did not abuse its discretion by declining to issue an instruction
on criminal trespass.
Affirmed.
BARNES, J. concurs
BAKER, J. concurs in part and concurs in result in part with separate opinion
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IN THE
COURT OF APPEALS OF INDIANA
RICKY EUGENE ARION, )
)
Appellant-Defendant, )
)
vs. ) No. 08A04-1203-CR-115
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
BAKER, Judge, concurring in part and concurring in result in part.
I fully concur with the majority’s determination that the trial court properly
refused to give Arion’s proposed jury instruction regarding his presumption of innocence.
However, while I also agree that Arion was not entitled to an instruction on attempted
criminal trespass, I do so for reasons other than those advanced by the majority.
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I cannot agree with the majority’s pronouncement that criminal trespass was a
factually-included lesser offense of attempted residential entry in these circumstances.
Slip op. at 10. In accordance with Indiana Code section 35-43-2-2(a)(5), an individual
commits criminal trespass when he or she “knowingly or intentionally enters the dwelling
of another person without the person’s consent.” (Emphasis added). Such was not the
case here because, as the majority notes, Arion was charged with and convicted of
attempted residential entry. Slip op. at 4-5 (emphasis added). And the evidence did not
establish that Arion actually entered DeFord’s residence. Therefore, it cannot be said that
the offense of trespass is a factually-included lesser offense under Indiana Code section
35-43-2-2(a)(5). See J.M. v. State, 727 N.E.2d 703, 705 (Ind. 2000) (observing that a
charge that the defendant did knowingly or intentionally “break and enter” the residence
of another person sufficiently alleged facts constituting criminal trespass).
I would also note that Indiana Code section 35-43-2-2(a)(1) cannot be relied upon
as support for giving Arion’s proposed instruction because the crime of trespass under
this subsection is committed when a person “knowingly or intentionally enters the real
property of another person after having been denied entry by the other person. . . .” Here,
there is no evidence that DeFord had previously denied Arion entry to her real property.
Thus, the trial court also properly denied Arion’s proposed instruction on this basis.
For these reasons, I believe that the trial court properly exercised its discretion in
refusing to give Arion’s proffered instruction on criminal trespass.
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