Higgins v. State

• Decision Date: 21 February 2003
• Docket Number: No. 82A04-0203-CR-109.,82A04-0203-CR-109.
• Citation: 783 N.E.2d 1180
• Parties: Christopher HIGGINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

783 N.E.2d 1180

Christopher HIGGINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A04-0203-CR-109.

Court of Appeals of Indiana.

February 21, 2003.

Jon Aarstad, Vanderburgh County Public Defender, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Christopher Higgins appeals his conviction for residential entry, a Class D felony. We affirm.

Issues

The issues before us are:

I. whether the trial court violated Higgins rights under the United States and Indiana Constitutions by instructing the jury that "the opening of a locked or unlocked door is sufficient" to establish that a breaking has occurred; and

II. whether the trial court properly refused to instruct the jury on the offense of criminal trespass.

Facts

Debra Freson and Higgins were acquaintances. After a couple of encounters alone with Higgins during which he made unwanted sexual advances, Freson demanded that Higgins have no further contact with her. In the early morning hours of July 4, 2000, Freson, who was home alone, awoke and heard someone inside her house. Although Freson had made sure that her front door was locked before going to bed, she admitted that she did not routinely lock the back door, nor had she checked that night to see whether it was locked. She did testify, however, that the back door was closed. Higgins eventually found Freson in the bedroom where she had been sleeping, calling her by her nickname; Freson insisted that he leave. Higgins, who had been to Freson's house once before, told Freson that he had entered through the back door.

The State charged Higgins with residential entry, and the case proceeded to a jury trial. Over objection, the trial court informed the jury in instruction four, "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; the opening of a locked or unlocked door is sufficient." App. p. 53. The trial court also refused to give Higgins' tendered instruction and verdict form on the offense of criminal trespass, a Class A misdemeanor. The jury found Higgins guilty as charged, and he now appeals.

Analysis

I. "Breaking" Instruction

Higgins first argues that the trial court's instruction regarding the residential entry element of "breaking" violates his due process rights under the Fourteenth Amendment to the United States Constitution, as well as Article I, § 19 of the Indiana Constitution.¹ Specifically, he contends the instruction creates an impermissible mandatory presumption and relieves the State of its burden of proof on the "breaking" element of residential entry because the jury was told that the opening of a locked or unlocked door "is sufficient" to establish that a "breaking" occurred.

"Instructing the jury lies within the sole discretion of the trial court, and considering the instructions as a whole and in reference to each other, we will not reverse for an abuse of that discretion unless the instructions as a whole mislead the jury as to the law in the case." Carter v. State, 766 N.E.2d 377, 382 (Ind.2002). Higgins does not dispute that the trial court's instruction four accurately states the law: the opening of an unlocked door is sufficient evidence, as a matter of law, to support the "breaking" element of residential entry. McKinney v. State, 653 N.E.2d 115, 117 (Ind.Ct.App.1995). However, it is also true, as Higgins argues, that language in an appellate opinion stating the rationale for a decision is not necessarily proper for use as a jury instruction. Dunlop v. State, 724 N.E.2d 592, 595 (Ind.2000). This specifically applies, inter alia, to appellate opinions holding that certain evidence was sufficient to support a conviction. See id.

Higgins' claim that instruction four created an improper mandatory presumption favorable to the State can be separately analyzed under the United States and Indiana Constitutions. We first address his claim under the Due Process Clause of the Fourteenth Amendment to the federal constitution. That clause "prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985) (citing Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 2457-59, 61 L.Ed.2d 39 (1979)). Courts analyzing a claim of this sort must determine whether the challenged instruction creates a mandatory presumption or merely a permissive inference. Id. at 313-14, 105 S.Ct. at 1971. "A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." Id. at 314, 105 S.Ct. at 1971. An instruction relating a mandatory presumption violates the Due Process Clause if it relieves the State of the burden of persuasion on an element of an offense. Id. If an instruction in isolation reasonably could have been understood by a juror as relieving the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of all the jury instructions. Id. at 315, 105 S.Ct. at 1971. General instructions regarding the State's burden of proof and the defendant's presumption of innocence may be insufficient to correct such an error, however. Id. at 319-20, 105 S.Ct. at 1974. The Francis court held the following jury instructions to be unconstitutional:

The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.

Id. at 315, 105 S.Ct. at 1971-72. See also Sandstrom, 442 U.S. at 515,

99 S.Ct. at 2454 (holding unconstitutional jury instruction stating "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts"); Geiger v. State, 721 N.E.2d 891, 894 (Ind.Ct.App.1999) (holding unconstitutional jury instruction stating "[t]he law presumes an individual intends the consequences of his act").

We recently addressed a jury instruction similar in some respects to the instruction Higgins challenges, and which did not explicitly contain the word "presume," in Walker v. State, 769 N.E.2d 1162 (Ind.Ct. App.2002), clarified on reh'g, 779 N.E.2d 1158, trans. denied (2003). In that case, we considered whether the following instruction created a mandatory presumption in violation of the Due Process Clause in a trial for murder and attempted murder:

It is a fundamental principle of law that... each person is criminally responsible for the actions of each other person which were a probable and natural consequence of their common plan even though not intended as part of the original plan.

769 N.E.2d at 1168 (emphases in original). We held that this instruction did create an impermissible mandatory presumption, in that the jurors were instructed to presume the defendant, the accused non-shooter, had the same intent as the actual shooter, the defendant's companion. Id. at 1171. We engaged in a two-step analysis in reaching this conclusion: first, we found that the phrase "fundamental principle" connotes such a high degree of importance to whatever follows it that it created a presumption. Id. at 1170. Second, the word "is" made the presumption mandatory, not merely permissive, in that it mandated the jury to presume the defendant's intent. Id.

Here, as in Walker, the challenged jury instruction contained the word "is": "the opening of a locked or unlocked door is sufficient" to support the "breaking" element of residential entry. App. p. 53 (emphasis added). Unlike Walker, however, there was no language to the effect that this proposition was a "fundamental principle of law." The inclusion of this phrase was essential to our holding in Walker that the instruction created a presumption that the jury was mandated to apply. As such, Walker is not directly on point, and we decline to extend the reasoning of that case to hold that the mere inclusion of the word "is" in an instruction creates a mandatory presumption that violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We conclude that the instruction here, less strongly worded than in Walker, creates merely a permissive inference, not a mandatory presumption. Instruction four is not "cast in the language of command" of the type condemned by the Francis court. 471 U.S. at 316, 105 S.Ct. at 1972.

We now address Higgins' claim under Article I, § 19 of the Indiana Constitution, which provides, "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." A mandatory instruction that binds the minds and consciences of the jury to return a verdict of guilty upon finding certain facts invades the province of the jury under this provision of Indiana's Constitution. Curran v. State, 675 N.E.2d 341, 344 (Ind.Ct.App.1996) (citing Pritchard v. State, 248 Ind. 566, 575, 230 N.E.2d 416, 421 (1967)). The essence of Higgins' argument is that because the jury was told that opening a locked or unlocked door "is" sufficient evidence of a breaking, the jury was bound to find that a breaking occurred if it found that Higgins opened a locked or unlocked door, and thus that he committed residential entry if the other elements were satisfied, even though this particular jury, guided by their minds and consciences,...