Byers v. State, 45S00-8612-CR-1065

Decision Date05 April 1988
Docket NumberNo. 45S00-8612-CR-1065,45S00-8612-CR-1065
Citation521 N.E.2d 318
PartiesEric BYERS, Sr., Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Nathaniel Ruff, Appellate Div., Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in a conviction of appellant of Burglary, a Class B felony. He received a sentence of fourteen (14) years to run consecutively to a sentence he had received previously and for which he was on probation at the time of the commission of the crime in question.

The facts are: On March 1, 1986, Joseph Ware and his wife were in the process of moving from a house they had rented in Gary, Indiana. The curtains had been taken down and some of the belongings removed; Ware had, however, packed several items in garbage bags and left them in the house. He testified that the moving was completed one week following the burglary in question. He further testified that he had paid the rent to the day he finished moving.

On March 1, Salena Walden, who lived next door to the Wares, observed appellant remove an air conditioner from the window and enter the house. She called the Gary Police Department. Officer Troxel responded to the call and arrested appellant in the house. At the time of his arrest, appellant was carrying one of the garbage bags.

Ware was notified of the break-in, and when he arrived, he noticed the house in disarray and the piggy bank he owned opened on the floor with some of the contents spilled. He testified that he knew appellant, but he had not given him permission to enter the premises.

Appellant claims the trial court erred in giving Instruction No. 7 which was an instruction on the defense of voluntary intoxication. He concedes that trial counsel did not object to the giving of this instruction; he takes the position, however, that the giving of the instruction was fundamental error. He claims the instruction is in error in that it limits the defense of intoxication to those elements of crime set forth in Ind.Code Sec. 35-41-3-5(b). However, the court made no such reference in the instruction and specifically stated that the defense of voluntary intoxication was available to negate the intent required both in burglary and the included offense of trespass. The court's instruction is a correct statement as to the defense of intoxication. There was no fundamental error in the giving of such instruction.

Appellant claims there is insufficient evidence to establish that he broke into a domicile or that he intended to commit theft. Appellant claims that since the evidence shows that the Wares were in the process of moving, the house could no longer be considered a place of human habitation and that it was merely a building in which Ware's goods were stored. He states that Ware's testimony would indicate that neither he nor his wife intended to sleep in the residence on the night of the break-in nor was there any evidence that they intended to stay there for the week remaining on their lease. The fact remains that the Wares had maintained their home at that address, that they still had the right to sleep in the house, and that a portion of their goods was still there.

The legislature obviously provides an...

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10 cases
  • Howell v. State
    • United States
    • Indiana Appellate Court
    • April 28, 2016
    ...provided an increased penalty for burglarizing a dwelling “because of the potential danger to the probable occupants.” Byers v. State, 521 N.E.2d 318, 319 (Ind.1988). [10] This is not to say that an occupant must be present at the time of the burglary in order for the building or structure ......
  • Cash v. State
    • United States
    • Indiana Supreme Court
    • August 8, 1990
    ...enclosed space, permanent or temporary, movable or fixed, that it is a person's home or place of lodging." As we noted in Byers v. State (1988), Ind., 521 N.E.2d 318, the legislature provides an increased penalty for burglarizing a place of human habitation because of the potential danger t......
  • White v. State
    • United States
    • Indiana Appellate Court
    • May 3, 2006
    ...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 ......
  • Crow v. State
    • United States
    • Indiana Appellate Court
    • August 31, 2023
    ...law has long punished home invasions more severely than break-ins of other buildings. See I.C. § 35-43-2-1; see also Byers v. State, 521 N.E.2d 318, 319 (Ind. 1988). the "risk that someone might be there justifies a more serious charge, even if the risk is low in a particular situation." Ke......
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