APPEAL FROM THE LAPORTE CIRCUIT COURT, The Honorable Robert S. Gettinger, Judge, Cause No. 5132C
Pivarnik, J. Shepard, C. J., DeBruler, Givan, and Dickson, JJ., concur.
Defendant-Appellant Carl David Phillips was found guilty by a jury in the LaPorte Circuit Court of aiding in the commission of a burglary and three counts of burglary, all as class B felonies. The trial court subsequently sentenced Phillips to a term of twenty (20) years on each count and ordered the terms be served concurrently.
Three issues are presented for our review in this direct appeal:
1. sufficiency of the evidence;
2. refusal of the trial court to suppress evidence seized pursuant to a search warrant; and
3. propriety of the sentence imposed.
Testimony of witnesses at the trial indicated that in the last half of January, 1984, Phillips, Howard Douglas Dodson, and Timothy Walker had developed a general scheme for burglarizing homes. One of the three would drive to the scene, drop the other two off, then drive around until the job was done. Meanwhile the other two would gain entry at the back of the home, gather up the valuables, "stash" the valuables in a ditch, and return to the car. They would later return to retrieve the valuables, take them to one of the men's homes, and divide the items among themselves.
Phillips was convicted for his participation in four burglaries. Phillips drove the car in the burglary of the homes of Douglas A. Pepple and Stewart Perkins. Dodson was the driver in the burglary of the Elaine Jaske residence. All three walked from the parked car to enter the home of Jay Ellis. Phillips' pry bar was used to gain entrance into the homes. Phillips§ effectuated the entrance to the Perkins home. They were interrupted during the burglary of the Pepple residence which led to their eventual arrest.
Phillips raises two grounds to support his contention there was insufficient evidence to support the jury's verdicts. He first claims the testimony of Dodson and Walker was inherently incredible and unworthy of belief. This contention invites a weighing of the credibility of these witnesses. Since this was the duty of the jury and the jury performed that duty, this contention has no merit. Tyra v. State (1987), Ind., 506 N.E.2d 1100, 1102.
Phillips also claims the residences of Perkins and Ellis were not dwellings as defined in Ind. Code Ann. § 35-41-1-10 (Burns 1985). He argues, therefore, Phillips could not be found guilty of class B felonies in those two break-ins. The evidence disclosed the building burglarized was the Perkins's place of residence but at the time of the burglary, they were spending some of the winter months in Florida. The Ellis's also were away, spending the winter in Arizona. In support of his contention Phillips cites Smart v. State (1963), 244 Ind. 69, 190 N.E.2d 650, which is based on the burglary statute before its 1982 amendment by the Legislature. Previous to amendment, the statute defined first degree burglary as consisting of breaking and entering a dwelling or other place of human habitation. Smart and other cases held the statute required a showing the building was a dwelling and that persons were dwelling in it at the time of the break-in. The 1982 revised statute provides the offense of breaking into a structure is a class B felony if committed while armed with a deadly weapon or if the building or structure is a dwelling. Ind. Code Ann. § 35-43-2-1 (Burns 1982). An excellent analysis of the interpretation of the revision of this statute was done by Judge Neal in Jones v. State (1983), Ind.App., 457 N.E.2d 231, 233-34. We agree that the present statute does not require the occupier of the residence to be in the home at the time of the burglary. ...