Milo v. State, Court of Appeals Case No. 19A-CR-751

• Decision Date: 05 December 2019
• Docket Number: Court of Appeals Case No. 19A-CR-751
• Citation: 137 N.E.3d 995
• Parties: Christopher MILO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

137 N.E.3d 995

Christopher MILO, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-CR-751

Court of Appeals of Indiana.

FILED December 5, 2019

Attorneys for Appellant: Tyler E. Burgauer, Samuel J. Beasley, Muncie, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Matthew B. MacKenzie, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Following a jury trial in Delaware Circuit Court, Christopher Milo ("Milo") was convicted of Level 3 felony burglary. Milo appeals and presents two issues, which we restate as: (1) whether the trial court erred when it reconsidered its earlier grant of Milo's motion for a directed verdict, which was based on a flaw in the charging information, and (2) whether the trial court's jury instruction regarding the offense of burglary constituted fundamental error.

[2] We affirm.

Facts and Procedural History

[3] During November and December 2017, Milo and his girlfriend Miah Hale ("Hale") were homeless and living in the apartment of their acquaintance, Anthony Powers ("Powers"). The property manager for the apartments was Jackie Sailers ("Sailers"). When they moved into Powers's apartment, Milo and Hale brought their cats with them. The terms of Powers's lease, however, forbade the presence of pets in the apartment. When Milo and Hale stopped living in Powers's apartment, they left their cats despite Powers's requests to take the cats with them. Powers eventually took the cats to an animal shelter.

[4] On the morning of December 29, 2017, Milo and Hale went to Powers's apartment to pick up their cats. Powers lied and told them that his landlord had taken the cats. This infuriated Milo and Hale, who left Powers's apartment to confront Sailers. Sailers told the couple that he had not taken the cats. Milo then stated that he was going to go "whoop [Powers]'s ass." Tr. pp. 44–45.

[5] At approximately 11:00 a.m., Milo and Hale broke through Powers's exterior door and entered his apartment. Milo attacked Powers, beating and kicking him repeatedly in the eye, head, back, and shoulders as Powers attempted to escape. All the while, Hale stood at the doorway and screamed at Powers. The attack caused serious injury to Powers: his right eye swelled shut, he had ringing in his ears, and he had scrapes and bruises. The swelling of his eye aggravated a pre-existing problem with Powers's optic nerve, and Powers eventually lost all sight in his right eye.

[6] On January 9, 2018, the State charged Milo with Level 3 felony burglary, Level 6 felony residential entry, and Class A misdemeanor battery. The count alleging burglary provided:

[On] or about December 29, 2017 in Delaware County, State of Indiana, Christopher J. Milo did break and enter the building or structure of Anthony W. Powers, Sr., with the intent to commit felony therein, to-wit: Battery; said act resulting in bodily injury to Anthony W. Powers, Sr. ...

Appellant's App. p. 3.

[7] A jury trial was held on February 12, 2019. At the close of the State's case-in-chief, Milo's counsel moved for what she described as a directed verdict, stating:

Judge, at this point in time as to count one I'm gonna move for a directed verdict, as—if you look at the charging information in count one they have in their charging information they have that Mr. Milo [did] break and enter the building or structure of Mr. Powers with the intent to commit the felony therein to wit: battery, they have actually put what the underlying felony is. Now, if you look in count three, battery is not a felony, it's never been raised to the level of a felony, it has always stayed as a misdemeanor, they didn't charge it as a felony, they've not elevated it because of priors or anything like that, so if you start with battery [sic¹ ] as a level five felony which where you have to start with and it says with the intent to commit a felony therein, so in order to get to a level three which is about—has to do with—it gets elevated to a three because of a battery, you still have to get past the level five to be elevated, and in the level five it states while committing a felony therein, battery is not a felony so you don't even get to level three. So, due to that, Judge, I'm asking for a directed verdict that the charging information is insufficient on its face.

Tr. p. 139.²

[8] The State responded that Hale had stated that she and Milo intended to cause serious bodily injury to Powers when they broke into his apartment, which would mean that they intended to commit felony-level battery, and that the trial court should therefore deny Milo's motion. Milo's counsel responded:

First of all, Judge, that was [Hale]'s intent was to cause serious bodily injury whether it was through Mr. Milo or not we'll never know, second of all, all they had to do was charge battery as serious bodily injury or as moderate bodily injury and it would have elevated it to a felony in the charging information, they chose not to do that, this case has pended for over a year, they've not caught it and you can't go by the intent of somebody else to know what his intent is, so if they thought it was his intent to cause serious bodily injury they should have charged him that way, but the bottom line is there's no underlying felony and they can't just infer a felony based on what somebody else says.

Id. at 140. The trial court granted Milo's motion, ruling, "[T]he charge is what it is, battery[,] said act resulting in bodily injury and that is a misdemeanor not a felony, motion for directed verdict as to count one is granted." Id. at 141. The court then recessed.

[9] When the court reconvened, the prosecuting attorney requested that the trial court reconsider its earlier ruling.³ The prosecuting attorney argued that Milo's motion, as a challenge to the charging information rather than the sufficiency of the evidence, was actually a motion to dismiss rather than a motion for a directed verdict. And since Milo did not make his motion until the middle of the trial, the State argued that his motion to dismiss was untimely and should have been denied. After hearing further argument from the parties, the trial court took the matter under advisement and recessed again. Upon readjourning, the trial court ruled from the bench as follows:

[The] Court has had an opportunity to research [ Indiana Code section 35-34-1-4(a)(1) ], and as—how it is applicable and first of all the Court believes that that statute is applicable for the nature of the argument made by Defense Counsel concerning the deficiency of the charge and the evidence, and I'm going to grant the State's motion to correct error based upon that cited statute[.] [T]here is sufficient evidence in the record, where the State has met its burden before the jury to prove the elements of the offense of burglary as a level three felony such that it is an issue for the trier of fact to decide as opposed to the Court[.] [T]he argument on the motion went to the issue of intent and how that is charged in the charging information, arguing that the intent that was charged was to commit a felony—well to commit a felony battery but the—because of count three it really was misdemeanor battery but that again, the argument as to the intent is a—based on the evidence presented here is a question for the jury to decide whether the defendant had the intent to commit a felony, in this case battery, so for those reasons I am going to grant the motion to correct errors[.] [I] believe my abrupt ruling on the motion for directed verdict was incorrect[.]

Tr. pp. 146. At the conclusion of the trial, the jury found Milo guilty as charged.

[10] At a sentencing hearing held on March 7, 2019, the trial court entered judgment of conviction only on the burglary count on double jeopardy grounds. The court then sentenced Milo to twelve years on the burglary conviction, with nine years executed and three years suspended to probation. Milo now appeals.

I. The Trial Court's Ruling on Milo's Motion Was Not an Acquittal for Double Jeopardy Purposes

[11] Milo first contends that the trial court's reconsideration of its earlier ruling granting Milo's motion for a "directed verdict" violates the constitutional prohibition against double jeopardy. According to Milo, the trial court's grant of his motion acted as an acquittal, and he cannot be subsequently tried on the same grounds.

A. Double Jeopardy

[12] Milo is correct that the Fifth Amendment to the United States Constitution prohibits a second prosecution for the same offense after an acquittal.⁴ Baca v. State , 122 N.E.3d 1019, 1020–21 (Ind. Ct. App. 2019) (citing G.K. v. State , 104 N.E.3d 598, 600 (Ind. Ct. App. 2018) ). Milo is also correct that a directed verdict entered on the grounds that the State failed to prove a material element of the offense acts as an acquittal. Elkins v. State , 754 N.E.2d 643, 644 (Ind. Ct. App. 2001) (citing Williams v. State , 634 N.E.2d 849, 853 (Ind. Ct. App. 1994) ), trans. denied .⁵ Indeed, double jeopardy bars retrial following a court-ordered acquittal "even if the acquittal is ‘based upon an egregiously erroneous foundation.’ " Evans v. Michigan , 568 U.S. 313, 318, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013) (quoting Fong Foo v. United States , 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) ).

[13] To Milo, then, this case is simple: he moved for a directed verdict, and the trial court granted his motion. Therefore, he argues, the trial court could not reconsider its grant of his motion, and he should not have been subject to continued prosecution on the burglary charge. The State argues that the substance of Milo's motion, and the trial court's ruling thereon, were not based on a resolution of any of the factual elements of the offense charged. It argues instead that Milo's motion, although styled as one for a "directed verdict," was in actuality a motion to dismiss attacking the validity of the charging information and that the trial court's...