Reynolds v. State
| Decision Date | 05 June 2015 |
| Docket Number | No. 73A01–1407–CR–314.,73A01–1407–CR–314. |
| Citation | 35 N.E.3d 317 (Table) |
| Parties | Harold W. REYNOLDS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Amanda O. Blackketter, Blackketter Law Office, Shelbyville, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
[1] Harold W. Reynolds (“Reynolds”) appeals his conviction and sentence for Burglary, as a Class C felony.1 We affirm.
[2] Reynolds presents three issues for review, which we restate as:
[3] On Sunday, January 26, 2014, at approximately 3:00 a.m., Morristown Police Department Chief Henry Albrecht (“Officer Albrecht”) overheard a Shelby County Sheriff's Department dispatch about a suspected burglary in progress at Integrity Metals, a scrap metal recycling facility located on seventeen acres in Shelby County. The dispatch indicated that three men were walking through the facility and rummaging in vehicles parked on the property. Integrity Metals was not open for business on Sundays at 3:00 a.m., and owner Joshua Carter (“Carter”) had not given anyone permission to access the property at that time. A ten-foot-high privacy fence surrounded the property and the fence gate was locked with a padlock whenever the business was closed. The police were alerted to the unusual activity by Watchdog Security, a company that Carter had hired to install and monitor a virtual recognition camera security system. A sign posted on the fence stated that video surveillance was used on the premises.
[4] Officer Albrecht drove to the property and observed a white truck with expired temporary plates parked partially in a ditch just outside the entrance gate. The officer stopped and parked. After retrieving from the trunk of his squad car an AR–15 rifle equipped with a flashlight, Officer Albrecht approached the truck to see if it was occupied. As he approached, he observed a man, later identified as Reynolds, inside the gate standing next to a running forklift from which he had just alighted. Officer Albrecht pointed the rifle and flashlight at Reynolds, identified himself, and ordered Reynolds to put his hands up. Reynolds initially complied, but then turned and ran.
[5] Outnumbered by the three men reportedly inside the property, Officer Albrecht waited for back-up to arrive. Officer Eric Fields (“Officer Fields”), a canine handler from the Greenfield Police Department, was one of the responding officers. Approximately two hours after Officer Albrecht first encountered Reynolds, Officer Fields and two other canine officers tracked the suspects to a drainage ditch outside the property. The men were huddled together in the freezing water. Officer Fields deployed his dog to detain the suspects. All three men were placed under arrest and transported to the hospital for treatment for weather-related injuries. Reynolds was also treated for a dog bite.
[6] Meanwhile, Carter, who had received calls from Watchdog Security and Officer Albrecht, arrived at the front gate. Carter saw that the snow was disturbed around a section of fence that crossed over a shallow ditch and left a gap under the fence. The padlock that usually secured the gate was missing. The forklift was not where it was parked the night before, but was running right by the gate.
[7] After the suspects were in custody, Officer Albrecht and Carter walked through the property together. Carter saw that a “pretty big gash” (Tr. 231), large enough that “you could walk through” (Tr. 232), had been cut in the side of the Quonset hut that housed Integrity Metals's non-ferrous scrap metal buying operation. The hut stored metal purchases with a “higher dollar value.” (Tr. 235.) The door to the Quonset hut was open, and Carter could see that some things were out of place, including three boxes of copper on the ground. In addition, vehicle tracks in the snow indicated that the forklift had been driven around a loader truck that Carter typically parked in front of the Quonset hut entrance “to make sure that people have a difficult time trying to get things out of there.” (Tr. 234.)
[8] After obtaining a warrant, Officer Albrecht searched the white truck found at the scene. Inside, he found a current license plate for the truck and registration indicating that Reynolds was the owner. He also found two bolt cutters, tin snips, a pair of hand-held radios, and numerous receipts for the sale of metal. The next day, Officer Albrecht returned and found the gate padlock on the ground near where the truck had been parked; the lock had been cut in two. A check of the computer system on which Integrity Metals tracked all scrap metal buys using the seller's driver's license number revealed that Reynolds sold scrap metal to Integrity Metals on January 23, 2014, three days before the incident. Reynolds also sold copper and iron to Integrity Metals on October 13 and 16, 2012.
[9] On January 27, 2014, the State charged Reynolds with Burglary, as a Class C felony, Attempted Theft, as a Class D felony,2 and Resisting Taw Enforcement, as a Class A misdemeanor .3 The State also alleged Reynolds to be a Habitual Offender.4
[10] Reynolds's jury trial commenced on May 27, 2014. At the close of the State's evidence, Reynolds moved under Trial Rule 50 for judgment on the evidence as to the Resisting Law Enforcement charge, which the trial court granted.5 On May 28, 2014, the jury returned guilty verdicts on the Burglary and Attempted Theft charges. Reynolds then admitted to being a Habitual Offender. On June 25, 2014, the trial court found that the Burglary merged with Attempted Theft and entered a judgment of conviction on the Burglary charge. The court also found Reynolds to be a Habitual Offender. Reynolds was sentenced to six years in the Indiana Department of Correction (“DOC”) for Burglary, enhanced by twelve years due to the Habitual Offender determination. Reynolds now appeals his conviction and sentence.
[11] Reynolds first argues that the trial court erred when it refused his request to instruct the jury on criminal trespass as a lesser included offense of burglary.
[12] When a party asks the trial court to instruct the jury on a lesser included offense of the crime charged, the court must engage in a three-step analysis: (1) determine whether the lesser offense is inherently included in the crime charged; (2) if not inherently included, determine whether the lesser offense is factually included in the crime charged; and (3) if the alleged offense is either inherently or factually included, determine whether a serious evidentiary dispute exists whereby the jury could have concluded that the lesser offense was committed but not the greater. Hauk v. State, 729 N.E.2d 994, 998 (Ind.2000) (citing Wright v. State, 658 N.E.2d 563, 566–67 (Ind.1995) ).
[13] Reynolds concedes that criminal trespass is not an inherently lesser included offense of burglary, but argues that, in this case, criminal trespass is a factually lesser included offense.
[14] To determine whether the lesser offense is factually included in the charged crime, the court compares the statute defining the alleged lesser included offense with the charging instrument in the case. Wright, 658 N.E.2d at 567. If the charging instrument alleges that the means used to commit the crime charged include all of the elements of the lesser offense, then the lesser offense is factually included. Id. Thus, we must compare the charging instrument in this case to the statute defining criminal trespass and determine whether the information charging Reynolds with burglary alleged all of the elements of criminal trespass.
[15] The charging information alleged that “Reynolds did knowingly or intentionally break and enter the building or structure of Integrity Metals, with the intent to commit the felony of theft therein, and/or he did aid, cause or induce another to do the same[.]” (App.31.) Criminal trespass is defined, in relevant part, as follows:
I.C. § 35–43–2–2(a)(1). Thus, a person commits criminal trespass when he or she (1) knowingly or intentionally enters the real property of another, (2) after having been denied entry by the other person or that person's agent, (3) not having a contractual interest in the property.
[16] On its face, then, the statutory definition of criminal trespass contains two elements not found in the charging information: (1) denial of entry, and (2) lack of a contractual interest in the property. Reynolds argues that by charging that he did “break and enter” the property, the State sufficiently alleged denial of entry and lack of a contractual interest, such that the charging information alleged all of the elements of criminal trespass.
[17] Our supreme court confronted a similar issue in J.M. v. State, 727 N.E.2d 703 (Ind.2000). In that case, J.M., a minor, was alleged to have committed residential burglary, as a class B felony when committed by an adult, and the State charged that he “did knowingly or intentionally break and enter the building or structure of Marvin Parks, which building or structure was a residence, ... with the intent to commit a felony there,...
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