Griesinger v. State

• Citation: 699 N.E.2d 279
• Decision Date: 28 July 1998
• Docket Number: No. 71A03-9710-CR-383,71A03-9710-CR-383
• Parties: Robert GRIESINGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 279

699 N.E.2d 279

Robert GRIESINGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A03-9710-CR-383.

Court of Appeals of Indiana.

July 28, 1998.

Transfer Denied Sept. 30, 1998.

Jeffrey L. Sanford, South Bend, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Rosemary L. Borek, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

KIRSCH, Judge.

A jury convicted Robert Griesinger of residential entry, ¹ a Class D felony, and confinement, ² a Class B felony. He appeals, presenting three issues:

I. Whether the trial court erred by refusing Griesinger's tendered jury instruction on consent to entry.

II. Whether the trial court erred by refusing Griesinger's tendered jury instruction on the lesser included offense of confinement as a Class D felony.

III. Whether the trial court erred by refusing Griesinger's tendered jury instruction which would have advised the jury that consent negates a confinement charge.

We affirm.

FACTS AND PROCEDURAL HISTORY

Griesinger was Pam Babbs' boyfriend. He lived in her house sporadically, and he had a key to some of the locks on the house. About a year and a half after their relationship began, the couple had a disagreement at Babbs' home. Griesinger left. In the middle of the night he returned and tried to get into Babbs' bedroom through the window. Babbs woke up, jumped out of bed, went to her sister's bedroom and hysterically told her that Griesinger was in the house. Babbs then rushed outside toward her car. Moments later, Griesinger came out, holding a knife. He grabbed Babbs, forced her into his car and drove away.

Several hours later, Griesinger brought Babbs back to her house. Babbs was crying and shaking, and Babbs' sister called the police. Babbs, distraught, told the police that Griesinger had threatened to cut her throat unless she cooperated with him. She also told the police that he had taken her to a western part of the county where he stopped the car, ordered her to her knees, and thrust his penis into her mouth. After that, he pushed her onto the hood of his car and raped her.

Based on Babbs' initial, distressed conversation with the police, the State charged Griesinger with rape, criminal deviate conduct, confinement, and residential entry. In Babbs' pre-trial deposition, however, she recanted her earlier allegations. In the deposition, Babbs claimed that Griesinger never threatened her with the knife, he merely held it in his hand. Further, she said that her sexual relations with Griesinger that night had been consensual. Due to Babbs' new testimony, the State dismissed the rape and criminal deviate conduct charges, and revised the confinement charge.

At trial, Babbs testified that Griesinger lived with her off and on, and that he had key to her house but not to the storm doors. On the day prior to the incident Griesinger had left Babbs' home to return to his mother's home. Babbs testified that Griesinger telephoned her a couple of times the next evening, and that she told him she didn't feel well. During the telephone calls, Griesinger never said he was coming to Babbs' house. Later that night, Babbs awoke to a scratching sound on her window screen. According to her testimony, she jumped up, went downstairs and told her sister that Griesinger was in the house. She then went outside, unlocking her front door to do so. She testified that Griesinger came outside and grabbed her by the back of her hair. She said he held a knife in his hand but never pointed it at her. She further said that when Griesinger took her to his car, he put the knife between his teeth in order to retrieve his keys. While the knife was in his mouth, Babbs grabbed it and threw it aside.

Griesinger then testified. He said he had come to Babbs' house that night because he was concerned about her health. Throughout their relationship, Griesinger said, Babbs demanded that he check on her regularly because she had insulin-dependent diabetes. He further said that Babbs was afraid she would lapse into a diabetic coma, so she insisted that he enter the house in whatever way necessary to check on her. According to Griesinger, he entered the house through the upstairs window that night because no one answered his knocks on the door, and he felt he must comply with Babbs' entreaty that he check on her.

The jury convicted Griesinger as charged.

DISCUSSION AND DECISION

I. Standard of Review

Griesinger challenges the trial court's refusal of three instructions he tendered. When reviewing a trial court's refusal of jury instructions, this court applies a three-part test: "1) whether the instruction correctly states the law; 2) whether there was evidence in the record to support the giving of the instruction; and 3) whether the substance of the tendered instruction is covered by other instructions which are given." Fields v. State, 679 N.E.2d 1315, 1322 (Ind.1997).

II. Residential Entry Instruction

Griesinger contends the trial court should have instructed the jury that they must find him not guilty if they found he had Babbs' consent to enter her house. Griesinger tendered the following instruction:

"The crime of residential entry requires a breaking. There can be no breaking, and therefore no residential entry, where the owner or other authorized person consents to entry, since a consensual entry is not an unlawful or illegal entry. The State must prove beyond a reasonable doubt that there was a breaking as defined by law."

Supplemental Record at 42. Griesinger argues that the trial court erred by refusing the instruction, because the instruction correctly stated the law, the evidence supported the instruction, and no other instruction informed the jury of the consent issue.

The State responds that the instructions as given adequately informed the jury of the consent issue. According to the State, the following instructions advised the jury of the consent defense:

"Lack of consent is not an element of the offense of Residential Entry and the State is not required to prove lack of consent. A defendant's belief that he has permission to enter must be reasonable in order for the defendant to avail himself of the defense of consent."

Supplemental Record at 35.

"Where a defense which negates an element of an offense has been raised, the State has the burden of disproving that defense beyond a reasonable doubt. The State may meet this burden by providing additional evidence to rebut the defense or by relying upon the evidence of its case-in-chief."

Supplemental Record at 36.

To resolve the jury instruction issue, we must determine whether, as Griesinger contends, lack of consent is an element of the crime of residential entry, or whether, as the State contends, consent to entry is a defense. If consent is a defense, the trial court's instructions were correct. If, however, lack of consent is an element of the crime, the trial court's instructions improperly failed to inform the jury of the State's burden of proving lack of consent.

The controlling statute contains no consent element. The statute reads: "A person who knowingly or intentionally breaks and enters the dwelling of another person commits residential entry, a Class D felony." IC 35-43-2-1.5. Notwithstanding the statutory language, Griesinger contends that lack of consent is an element of the crime, because lack of consent is inherent in the term "break." In support of this contention, Griesinger cites a burglary case, Smith v. State, 477 N.E.2d 857 (Ind.1985). As Griesinger points out, the court stated in Smith that there is no "break"when the owner consents to entry. Id. at 862. The court went on to explain, however, that consent to enter is a defense to a burglary charge. Id. at 863.

Similarly, in McKinney v. State, 653 N.E.2d 115 (Ind.Ct.App.1995), a residential entry case, the court stated that "in order to establish that a breaking has occurred, the State need only introduce evidence from which the trier of fact could reasonably infer that the slightest force was used to gain unauthorized entry." Id. at 117 (emphasis added). When read in isolation, the court's statement suggests that lack of consent is an element of the crime. The full opinion makes clear, though, that consent arises only as a defense. The court in McKinney pointed out that lack of consent is not an element of residential entry--rather, the court said, the defendant must prove consent as a defense. Id. at 118.

Further, a review of the precedent containing the words "unauthorized entry" indicates that the courts used the term "unauthorized" as a synonym for the term "illegal." Used in this manner, "unauthorized" carries no reference to authorization from the owner of the dwelling. Instead, in this context, "unauthorized" means "not authorized by the State", i.e., illegal. The reference to illegality originated in Willard v. State, 272 Ind. 589, 400 N.E.2d 151 (1980): " '[b]reaking and entering' in this context connotes an illegal entry, even if by opening an unlocked door or window." Id. 272 Ind. at 603, 400 N.E.2d at 160 (emphasis added). The next case adopting Willard substituted the word "unauthorized" for the word "illegal" without any indication that a change in meaning was intended. See Howard v. State, 433 N.E.2d 753, 756 (Ind.1982). The subsequent line of cases continued using the word "unauthorized" without reference to any consent issue. See Howard v. State, 433 N.E.2d 753, 756 (Ind.1982), cited in Trice v. State, 490 N.E.2d 757, 758-59 (Ind.1986), cited in England v. State, 530 N.E.2d 100, 101 (Ind.1988), cited in Bellmore v. State, 602 N.E.2d 111, 124-25 (Ind.1992), cited in McKinney v. State, 653 N.E.2d 115, 117 (Ind.Ct.App.1995).

When viewed in the context of this precedent, the term "unauthorized entry" is seen to be synonymous with "illegal entry" in the case law definitions of the term "break." Use of the term "unauthorized entry" is adequate for cases in which consent is not...