Heiny v. State, 2-180A21

• Citation: 405 N.E.2d 548
• Decision Date: 09 June 1980
• Docket Number: No. 2-180A21,2-180A21
• Parties: Kim HEINY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 548

405 N.E.2d 548

Kim HEINY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 2-180A21.

Court of Appeals of Indiana, Fourth District.

June 9, 1980.

Bruce M. Frey, Marion, for appellant-defendant

Theodore L. Sendak, Atty. Gen., Jeff G. Fihn, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CHIPMAN, Judge.

The appellant-defendant, Kim Heiny, was convicted by a jury of conspiracy to commit burglary, a Class C felony. On appeal Heiny challenges several rulings made by the trial court. We reverse.

Heiny has raised the following issue:

Whether the trial court erred in denying his Motion to Quash the information based on its failure to state the offense with sufficient certainty.

Heiny also raises several other issues but since we reverse on the failure to grant the Motion to Quash, they need not be discussed. ¹

FACTS

The facts most favorable to the State are summarized below. Heiny and two co-defendants met at his house and discussed plans to burglarize the North Park Mall shopping center, located in Marion, Indiana, where one of the co-defendants was employed as a night maintenance man. Heiny and one co-defendant went to the mall after it had closed and were admitted by the other co-defendant. They engaged in discussion concerning burglarizing the mall's stores and walked up and down the mall examining the various stores. They decided to put off the burglaries until a future date.

Several stores in the mall were eventually burglarized by two other men after Heiny had "set up the mall job for them."

The information filed in this case charged that the defendant:

"(W)ith intent to commit a felony, to-wit: burglarize the North Park Mall located in Marion, Grant County, Indiana, did agree with Randy J. Lostutter and Don Brandenburg to commit the said felony, namely Burglary, and the said Kim Heiny, Randy J. Lostutter and Don Brandenburg did perform an overt act, to-wit: did enter the North Park Mall located in Marion, Grant County, Indiana after store hours and did case and check out the various Mall stores and shops in furtherance of the agreement to-wit; to burglarize the North Park Mall at some future date and time."

Heiny filed a Motion to Quash the information based on its failure to state the offense with sufficient certainty; more specifically, its failure to allege either ownership or possession of the property that was the subject of the burglary conspiracy. This motion should have been granted.

An indictment charging conspiracy must describe the intended felony with the same certainty and particularity as an indictment charging the commission of the felony. Graves v. State, (1972) 153 Ind.App. 532, 288 N.E.2d 189. The certainty and particularity requirements of an indictment charging burglary and the justifications for them are set out in State v. Stokes, (1950) 228 Ind. 574, 94 N.E.2d 545, 546.

"By the great weight of authority an indictment for burglary must allege directly the ownership of the building entered. Generally there are two reasons advanced for the majority rule: first, that the ownership should be pleaded for the purpose of showing that the building broken into was not the building of the accused or that the accused did not have the right to enter the...