Thomas W. Oster, II v. State of Indiana

Aug 09 2013, 9:23 am
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
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
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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.
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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.
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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
5
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
6
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
7
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
8
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
9
(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).
10
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
11
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 cross-
examination 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
12
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.
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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.
14
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.15
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
16
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.
17