Smith v. State

Decision Date14 May 1985
Docket NumberNo. 583S168,583S168
Citation477 N.E.2d 857
PartiesRichard Dean SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Richard Dean Smith, was convicted by a jury of burglary of a dwelling, a Class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1984 Supp.), and attempted theft, a Class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1984 Supp.), and Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.), and he was also found to be a habitual offender. Defendant was sentenced to the Indiana Department of Correction for a period of twenty years for the burglary and four years for the attempted theft, such sentences to run concurrently. A sentence of thirty years was imposed based upon the habitual offender status. In this direct appeal, we consider the following seven consolidated issues:

1. Whether the trial court erred by failing to grant defendant's motion for discharge pursuant to Ind.R.Crim.P. 4(B)(1);

2. Whether the trial court erred by failing to grant defendant's tendered consent and mistake of fact instructions;

3. Whether the judge erred by failing to disqualify himself and by failing to grant defendant's motion for change of judge;

4. Whether the trial court erred by admitting into evidence at the habitual offender proceedings state's exhibits 1, 3, 6, 7, 8, and 9;

5. Whether the trial court erred by denying defendant's motion to delete from state's exhibit 2;

6. Whether the trial court erred by admitting an allegedly altered state's exhibit 10 during the habitual offender proceeding; and

7. Whether the trial court violated the prohibition against double jeopardy by sentencing defendant for both burglary and attempted theft, as charged.

A brief summary of the facts from the record shows that on August 2, 1982, the victim and his family were on vacation. The victim's neighbors had agreed to watch the victim's residence while they were on vacation.

Earlier in the day the neighbors had noticed a green Nova automobile with three young men drive slowly past the victim's home, staring at the home as they drove by. At approximately 10:00 p.m., these neighbors heard the sound of breaking glass. The neighbors then observed three men inside the victim's home and immediately telephoned the police.

After determining that there was someone in the victim's residence, the police completely surrounded the house. The police entered the victim's residence and followed the victim's dog to the attached garage wherein the dog alerted the officers to the presence of defendant.

The police apprehended defendant inside the garage attached to the victim's home. There was a broken window in the victim's northeast bedroom and a screwdriver pry mark on the rear door of the residence. In the hallway of the victim's residence there were several guns lined up against the wall and several articles were contained in a sack on the floor. A green Chevrolet Nova car was parked less than a quarter of a mile from the victim's residence.


Defendant first argues that the trial court erred by denying his motion for discharge pursuant to Ind.R.Crim.P. 4(B)(1). This rule provides that a defendant shall be discharged if he is not brought to trial within seventy days after a motion for an early trial has been made. The sanction of discharge, however, will not be granted unless the criminal defendant both moves for an early trial and does not cause delay by a continuance or otherwise. Taylor v. State (1984), Ind. 468 N.E.2d 1378.

The record shows that on August 5, 1982, two days after defendant's arrest and while incarcerated, defendant filed a motion for a speedy trial in the Tippecanoe County Court. When the case was transferred to the Tippecanoe Superior Court, defendant renewed this motion on August 17, 1982. On August 23, 1982, the trial court set the trial date for October 19, 1982, five days beyond the seventy-day limit. However, the record indicates that the scheduling of the jury trial commencement date was done with the agreement of the parties and without objection by defendant. And, defendant did not file a motion to dismiss until October 18, 1982.

Consequently, defendant did not fully comply with the procedural requirements of Ind.R.Crim.P. 4(B)(1). This Court has held that it is incumbent upon defendant to object at the earliest opportunity when his trial date is scheduled beyond the time limits prescribed by Ind.R.Crim.P. 4(B)(1). Wilburn v. State (1982), Ind., 442 N.E.2d 1098; Heflin v. State (1977), 267 Ind. 427, 370 N.E.2d 895. Defendant had the opportunity to object to the trial date at the scheduling conference, yet no objection was made. It appears that the first time defendant raised this issue was when he filed his motion to dismiss pursuant to Ind.R.Crim.P. 4(B)(1). This motion to dismiss was filed by defendant one day before the scheduled trial date even though the scheduling conference was held approximately two months earlier. Since the trial date was confirmed without an objection by defendant, the defendant has thereby acquiesced in the trial date set. Perry v. State (1984), Ind., 471 N.E.2d 270; Sumner v. State (1983), Ind., 453 N.E.2d 203. Insofar as no timely objection was made by defendant to the trial date being scheduled beyond the seventy-day time limit, defendant's request for an early trial date is deemed waived and therefore defendant is not entitled to a discharge under Ind.R.Crim.P. 4(B)(1).


Defendant contends the trial court erred by failing to grant his request for instructions regarding his consent defense and mistake of fact defense.

While defendant admitted his presence in the victim's home on August 2, 1982, he argues that such presence was not based upon an illegal entry. Rather, defendant maintains that the victim had arranged for defendant to remove the victim's gun collection so that the victim could collect insurance. Therefore, defendant sought to have the trial court instruct the jury as to his consent defense with the following tendered instruction number three:

"The element of 'breaking and entering' as used in the definition of the offense of burglary means an illegal entry."

A second but related theory of defense espoused by defendant was that he mistakenly believed that he had the victim's consent because of representations made by the victim's son to defendant. The trial court also refused to instruct the jury on the following tendered mistake of fact instruction number four:

"The defense of mistake of fact is defined by law as follows:

"It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense.

"The reasonable mistake about a fact must have prevented the defendant from,

forming the intent to commit the offense of which he is charged (or) knowing that the offense charged was being committed (or) being reckless, (as defined by law), in his conduct.

"The State has the burden of disproving this defense beyond a reasonable doubt."

Consent to entry by the owner of the premises or by an authorized person constitutes a defense to a burglary charge under appropriate circumstances in several jurisdictions. 93 A.L.R.2d 531. This Court has implicitly found that the consent of the owner or other authorized person may negate the criminal intent requisite to a burglary charge. Watkins v. State (1984), Ind., 468 N.E.2d 1049; Lamb v. State (1984), Ind., 462 N.E.2d 1025; Blow v. State (1983), Ind., 445 N.E.2d 1369; Howard v. State (1982), Ind., 433 N.E.2d 753; Lisenko v. State (1976), 265 Ind. 488, 355 N.E.2d 841. While this Court has not expressly held consent to entry to be a valid defense to burglary in Indiana, we have found that where there is appropriate evidence to show owner consent, such an instruction may be proper. Thompson v. State (1862), 18 Ind. 386, 81 Am.Dec. 364.

In jurisdictions, such as Indiana, which retain the common law definition of burglary by requiring a breaking, there can be no breaking and therefore no burglary where the owner or other authorized person consents to entry, since a consensual entry is not an unlawful or illegal entry.

However, it is no defense to a burglary charge where defendant is given consent to enter by one having no authority to do so. In this case, defendant could not have reasonably believed that the adult, nonoccupant son had authority to consent to defendant's entering of the parents' residence for the purpose of stealing valuables which belonged to his parents. State v. Tolley (1976) 30 N.C.App. 213, 226 S.E.2d 672. Therefore, defendant did not have authorized consent to enter the victim's home.

Moreover, in jurisdictions which recognize consent to entry as a defense to burglary, consent may be limited in scope by the purpose of the consent. See Annotation 93 A.L.R.2d 531. In the present case, defendant's premise was consent to enter the victim's home for the limited purpose of taking the victim's guns, based upon an alleged insurance fraud scheme. However, the record shows that several articles were collected by defendant which were not guns. Therefore, even if defendant had authorized consent to enter the victim's home, defendant had exceeded the scope of such consent.

In any event, when determining whether an instruction has been properly refused, we must consider on review whether:

1. The tendered instruction correctly stated the law;

2. There was evidence in the record to support the giving of the instruction; and

3. The substance of the tendered instruction was covered by other instructions which were given.

Van Orden v. State (1984), Ind., 469 N.E.2d 1153; Jackson v. State (1984), Ind.App., 469 N.E.2d 753.


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