Ferrell v. State

• Decision Date: 30 January 1991
• Docket Number: No. 49S00-8808-CR-732,49S00-8808-CR-732
• Citation: 565 N.E.2d 1070
• Parties: Mark J. FERRELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1070

565 N.E.2d 1070

Mark J. FERRELL, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8808-CR-732.

Supreme Court of Indiana.

Jan. 30, 1991.

Reginald B. Bishop, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Defendant-Appellant Mark J. Ferrell was convicted of Burglary, a Class B felony, Forgery, a Class C felony, and Theft, a Class D felony. Ferrell was sentenced to sixteen (16), eight (8), and four (4) years, respectively, all sentences to run concurrently for a total of sixteen (16) years. He appeals directly to this Court and raises the following three issues:

1. Whether the trial court erred in finding the unoccupied structure Ferrell broke into was a dwelling as defined by Indiana law;

2. Whether there was sufficient evidence to sustain the convictions and sentences imposed; and

3. Whether the sentences imposed are manifestly unjust.

The facts most favorable to the verdict show that on or about September 1, 1987, Ferrell broke into a residence owned by the victim, Raymond Bond, who had been previously married to Ferrell's aunt. While at the residence, Ferrell, posing as Bond, contacted Gus Mascari of Beech Grove Auction to sell various items of furniture located in the residence. Mascari went to the house and bought a video-cassette recorder, a color television set, a living room set, a table and chairs, a chest and dresser, a queen size bed, and a refrigerator from Ferrell, who signed the sales agreement/receipt in Bond's name. The Indianapolis Police apprehended Ferrell in the residence. At the time of his arrest, Ferrell was wearing a sweater, shorts, and a gold bracelet which belonged to Bond.

In a statement he later gave to the police, Ferrell admitted that he had forced open the back door of the house without the permission of the owner. Ferrell also admitted he did not have permission to sell the items in the house to a used furniture dealer or sign a receipt in the owner's name.

I. Was Bond's House a Dwelling?

Ferrell's first contention is he should have been found guilty of only a class C felony, burglary, because the structure he broke into was not a dwelling for purposes of the burglary statute, IC 35-43-2-1. That statute provides:

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. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelling, and a Class A felony if it results in either bodily injury or serious bodily injury to any person other than a defendant.

The term "dwelling" is defined in IC 35-41-1-10 as follows:

a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person's home or place of lodging.

Ferrell argues the structure in question did not contain "those accoutrements usual to the convenience of habitation" and therefore did not constitute a dwelling, citing Burwell v. State (1988), Ind.App., 517 N.E.2d 812, 815. In that case, the Court of Appeals upheld Burwell's class B burglary conviction for burglarizing an apartment when no one was home. The victim in Burwell moved herself and her three children out of their apartment and into the safety of her parents' home after she discovered that her front door had been tampered with. Burwell burglarized the apartment three days later. At the time of the burglary, the victim no longer intended to sleep in her apartment; however, she had not relinquished possession and control to her landlord. The Court of Appeals stated:

the term "dwelling" has been legislatively enlarged to afford protection to interests in the sanctity and security of habitation which, once established, do not necessarily fail because of the lack of use for purposes of sleep.

Burwell, 517 N.E.2d at 814. Noting the victim's apartment still contained her food utensils, personal belongings and clothing, the Burwell court went on to say:

a structure, once a dwelling, does not lose that character until such time as its inhabiter vacates the premises to the extent it no longer contains those accoutrements usual to the convenience of habitation.

Id. at 815.

In the instant case, Ferrell contends the house he burglarized did not contain those accoutrements usual to the convenience of habitation. Unlike Burwell, Ferrell argues the victim in the instant case had put his house up for sale and had not slept there for approximately four months prior to the burglary. In fact, Bond did testify he was living with his girlfriend on a regular, full-time, basis at the time of the burglary and kept very little food in the house because he ate at his girlfriend's place. According to Ferrell, Bond merely stored his furniture, appliances and clothes in the house while it was listed with a real estate broker to be sold. The record, however, reveals evidence to the contrary. Bond maintained his home mailing address and telephone number at the house. In addition, Bond testified he went to the house nearly every day to pick up his mail and occasionally would go inside for a few hours to watch television or to get something to eat. In our opinion, Bond's furniture, appliances, clothing and food which he kept in the house did constitute those accoutrements usual to the convenience of habitation; therefore, his house did not lose its character as a dwelling. Burwell, supra.

In Phillips v. State (1987), Ind., 514 N.E.2d 1073, this Court rejected appellant's argument that the residences he burglarized were not dwellings as defined in IC 35-41-1-10 because the families who occupied those residences were temporarily out of their homes on vacation at the time of the break-ins. This Court held the burglary statute, IC 35-43-2-1, does not require the occupier of the residence to be in the home at the time of the burglary. Phillips, 514 N.E.2d at 1075 (citing with approval Jones v. State (1983), Ind.App., 457 N.E.2d 231, 233-34). Similarly, in Welch v. State (1987), Ind., 509 N.E.2d 824, the victim's apartment was burglarized when he was not home. At the time of the burglary and for approximately one week prior thereto, the victim had been temporarily staying at his parents' house while awaiting the arrival of new furniture to replace that removed by his former roommate. He returned to his apartment shortly after the burglary. Welch, 509 N.E.2d at 825. This Court held that the victim's temporary absence did not alter the character of his apartment as a dwelling. Id. Accord, Middleton v. State (1979), 181 Ind.App. 232, 391 N.E.2d 657 (character of residence not vitiated where owner, temporarily absent while on five-month vacation, intended to return and did, in fact, return).

This Court has traditionally held burglary, like arson, to be an offense against the habitation. Carrier v. State (1949), 227 Ind. 726, 732 n. 3, 89 N.E.2d 74, 76 n. 3. 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. IC 35-43-2-1. Even though Bond had not slept in the house for four months, he maintained his home address and telephone number there and would stop by to pick up his mail and generally check out the house on a regular basis. The victim's house constituted a "dwelling" for purposes of the burglary statute.

We find no error on this issue.

II. Sufficiency of the Evidence

Next, Ferrell contends the State failed to prove beyond a reasonable doubt all elements of the crimes charged. He concedes that he was in Bond's home, sold certain items belonging to Bond and signed Bond's name on a sales receipt. However, Ferrell maintains his innocence because he claims he did not have the requisite criminal intent to commit the crimes of burglary, theft and forgery. Sp...