846 N.E.2d 1026 (Ind.App. 2006), 48A02-0505-CR-383, White v. State

Docket Nº48A02-0505-CR-383.
Citation846 N.E.2d 1026
Party NameLeslie Howard WHITE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case DateMay 03, 2006
CourtCourt of Appeals of Indiana

Page 1026

846 N.E.2d 1026 (Ind.App. 2006)

Leslie Howard WHITE, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 48A02-0505-CR-383.

Court of Appeals of Indiana

May 3, 2006

Page 1027

[Copyrighted Material Omitted]

Page 1028

[Copyrighted Material Omitted]

Page 1029

Douglas R. Long, Anderson, for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant, Leslie Howard White (White), appeals his convictions of Count I, arson, as a Class B felony, Ind.Code § 35-43-1-1; Count II, burglary, as a Class B felony, I.C. § 35-43-2-1; and Count III, theft, as a Class D felony, I.C. § 35-43-4-2.

We affirm.

ISSUES

White raises four issues on appeal, which we consolidate and restate as the following three issues:

(1) Whether the evidence was sufficient to sustain White's convictions;

(2) Whether the trial court properly instructed the jury; and

(3) Whether the trial court properly sentenced White.

FACTS AND PROCEDURAL HISTORY

In August of 2003, Gavin House (House) bought a residence at 1809 Central Avenue, in Anderson, Indiana. Although he had not yet moved into the residence, House kept personal property such as furniture, clothes, beds, couches, refrigerator freezers, a television set, a radio, tools, and a washer and dryer there. House also kept his dog outside at the residence and visited several times each day.

On September 15, 2003, around 7:30 p.m., House stopped by the residence for approximately fifteen minutes. At that time there was no fire damage to the residence. House arrived at the residence around 10:00 a.m. the next morning, September 16, upon learning there had been a fire. While inspecting the burned residence House noticed a television and radio were missing. Kevin Heflin, a fire investigator with the Anderson Fire Department investigated the fire. He concluded the fire was started on the carpet and was set intentionally.

On September 15, 2003, the night of the fire, Brenda Alexander (Alexander), LaToya Toney (Toney), and White went to Jason Tharp's (Tharp) house, located next door to House's residence. Alexander and Toney were the only ones to enter Tharp's house. White waited outside.

During the visit to Tharp's house, Alexander and Toney heard glass break outside. They saw White coming out of House's residence and heard him say he was going to take property from that house. White proceeded to exit House's residence with a television and put it in Alexander's car. White returned to the residence and exited with a radio, which he also put into Alexander's car. White then stated he was going to burn down the house to destroy any DNA evidence left behind by a cut he sustained on his finger. Upon hearing this, Toney insisted she and Alexander leave the premises. Alexander drove off but picked up White within minutes around the corner. White sold the

Page 1030

television to Toney's boyfriend, although it remained in Toney's possession. Alexander kept the radio.

On October 1, 2003, the State filed an Information, charging White with Count I, arson, as a Class B felony; Count II, burglary, as a Class B felony; Court III, theft, as a Class D felony; and Count IV, habitual offender. On March 9 through March 14, 2005, a jury trial was held. At the close of the trial, the jury returned a verdict of guilty on Counts I, II, and III. White pled guilty to Count IV at a bifurcated phase of the trial. Subsequently, on April 12, 2005, a sentencing hearing was held. At the end of the hearing, the trial court sentenced White to twenty years on Count I with an enhancement of ten years for the habitual offender adjudication under Count IV, twenty years on Count II, and three years on Count III, with sentences to run concurrently.

White now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

White first contends the evidence presented at trial was insufficient to support his conviction. Specifically, White argues that (1) the State failed to prove beyond a reasonable doubt the structure White burned down was a dwelling as statutorily defined in I.C. § 35-41-1-10, and (2) the testimony of Alexander and Toney is incredibly dubious.

A. Standard of Review

Our standard of review for a sufficiency of the evidence claim is well settled. In reviewing sufficiency of the evidence claims, we will not reweigh the evidence or assess the credibility of the witnesses. Cox v. State, 774 N.E.2d 1025, 1028-29 (Ind.Ct.App.2002). We will consider only the evidence most favorable to the judgment, together with all reasonable and logical inferences to be drawn therefrom. Alspach v. State, 755 N.E.2d 209, 210 (Ind.Ct.App.2001), trans. denied. The conviction will be affirmed if there is substantial evidence of probative value to support the conviction of the trier of fact. Cox, 774 N.E.2d at 1028-29. A judgment based on circumstantial evidence will be sustained if the circumstantial evidence alone supports a reasonable inference of guilt. Maul v. State, 731 N.E.2d 438, 439 (Ind.2000).

B. Evidence of a Dwelling

White first argues that the evidence was insufficient to sustain his convictions for arson and burglary. Specifically, White now contends that the State failed to prove beyond a reasonable doubt that the premise in question was a dwelling. 1 Arson is statutorily defined, in pertinent part, as a person who, by means of fire, knowingly damages a dwelling of another person without the other person's consent. I.C. § 35-43-1-1(a)(1). Burglary is statutorily defined, in pertinent part, as a person who breaks and enters the building or structure of another person, with intent to commit a felony in it. I.C. § 35-43-2-1. The burglary is a Class B felony if the building or structure is a dwelling. I.C. § 35-43-2-1(1)(B)(i). For purposes of the arson and burglary statutes, a dwelling is defined as "a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person's home or place of lodging." I.C. § 35-41-1-10.

Page 1031

Accordingly, to convict White of arson, as a Class B felony, the State was required to show beyond a reasonable doubt that White, by means of fire, knowingly damaged House's dwelling, without his consent. See I.C. § 35-43-1-1. To convict White of burglary, as a Class B felony, the State was required to show beyond a reasonable doubt that White, broke and entered House's dwelling, with the intent to commit a felony in it. See I.C. § 35-43-2-1.

The Indiana supreme court has traditionally held burglary, like arson, to be an offense against the habitation. Ferrell v. State, 565 N.E.2d 1070, 1072 (Ind.1991). 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. I.C. § 35-43-2-1. 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." Id. In Smart v. State, 244 Ind. 69, 190 N.E.2d 650 (1963), our supreme court made a distinction between a dwelling, which is a home, and a place of human habitation, which is a place used for purposes other than a home, such as a house used for business purposes. Id. at 652-53.

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. Id. 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. Id. 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 arson and 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. See Cox, 774 N.E.2d at 1028-29.

C. Incredible Dubiosity Rule

Next, White contends that the testimonies of Alexander and Toney are inconsistent and incredibly dubious. Specifically, White maintains that there are inconsistencies between Alexander and Toney's testimonies. Alexander said she was upstairs in Tharp's apartment when she heard glass breaking, while Toney said they were outside when they heard glass breaking. Alexander testified that no lights were ever turned on inside House's house, while Toney testified White did turn on lights inside House's house. Alexander testified it was two to three minutes between the time when she and Toney left before seeing White again, whereas Toney

Page 1032

testified it was no more than forty-five seconds.

Additionally, with respect to the dubiosity of their statements, White alleges that (1) both...

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    • United States
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    ...error is defined as an error so prejudicial to the rights of a defendant a fair trial is rendered impossible." White v. State, 846 N.E.2d 1026, 1033 (Ind.Ct.App. 2006) (citing Howard v. State, 816 N.E.2d 948, 955 (Ind.Ct.App. 2004), vacated on other grounds), trans. denied. This except......
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    • 10 Noviembre 2015
    ...2015). The error must be "so prejudicial to the rights of a defendant a fair trial is rendered impossible." White v. State, 846 N.E.2d 1026, 1033 (Ind.Ct.App. 2006), trans. [22] In arguing that the search warrant was invalid, Simons points to what he claims to be misstatements mad......
  • 42 N.E.3d 173 (Ind.App. 2015), 43A04-1501-CR-10, Simons v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Noviembre 2015
    ...2015). The error must be " so prejudicial to the rights of a defendant a fair trial is rendered impossible." White v. State, 846 N.E.2d 1026, 1033 (Ind.Ct.App. 2006), trans. [¶22] In arguing that the search warrant was invalid, Simons points to what he claims to be misstatements m......
  • 872 N.E.2d 208 (Ind.App. 2007), 20A04-0701-CR-39, Perez v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Agosto 2007
    ...that crime. It is well established by our court that instructing the jury is within the discretion of the trial court. White v. State, 846 N.E.2d 1026, 1032 (Ind. Ct. App. 2006), trans. denied. Jury instructions are to be considered as a whole and in reference to each other; error in a part......
  • Request a trial to view additional results
78 cases
  • Strack v. State, 112921 INCA, 21A-CR-922
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Noviembre 2021
    ...error is defined as an error so prejudicial to the rights of a defendant a fair trial is rendered impossible." White v. State, 846 N.E.2d 1026, 1033 (Ind.Ct.App. 2006) (citing Howard v. State, 816 N.E.2d 948, 955 (Ind.Ct.App. 2004), vacated on other grounds), trans. denied. This except......
  • Simons v. State, 111015 INCA, 43A04-1501-CR-10
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Noviembre 2015
    ...2015). The error must be "so prejudicial to the rights of a defendant a fair trial is rendered impossible." White v. State, 846 N.E.2d 1026, 1033 (Ind.Ct.App. 2006), trans. [22] In arguing that the search warrant was invalid, Simons points to what he claims to be misstatements mad......
  • 42 N.E.3d 173 (Ind.App. 2015), 43A04-1501-CR-10, Simons v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Noviembre 2015
    ...2015). The error must be " so prejudicial to the rights of a defendant a fair trial is rendered impossible." White v. State, 846 N.E.2d 1026, 1033 (Ind.Ct.App. 2006), trans. [¶22] In arguing that the search warrant was invalid, Simons points to what he claims to be misstatements m......
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    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Agosto 2007
    ...that crime. It is well established by our court that instructing the jury is within the discretion of the trial court. White v. State, 846 N.E.2d 1026, 1032 (Ind. Ct. App. 2006), trans. denied. Jury instructions are to be considered as a whole and in reference to each other; error in a part......
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