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01/14/88 RUSSELL J. BURWELL v. STATE INDIANA

Filed: January 14, 1988.

RUSSELL J. BURWELL, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE MARION COUNTY SUPERIOR COURT V, THE HONORABLE PATRICIA J. GIFFORD, JUDGE, CAUSE NO. CR8-4121e.

Shields, P.j., Neal, J., Concurs. Sullivan, J., Dissents.

Author: Shields

SHIELDS, P.J.

ISSUE

The sole issue on appeal is whether Burwell's conviction of burglary as a class B felony is erroneous because the burglarized apartment does not constitute a "dwelling" within the meaning of IC 35-43-2-1 (Burns 1985).

We affirm.

FACTS

On July 6, 1984, Russel Burwell was arrested and charged with burglarizing the apartment of Vicky Wilcox as a class B felony.[Footnote 1] Ms. Wilcox's apartment was located in the Greentree complex, the same housing development where Burwell resided. Wilcox was casually acquainted with Burwell.

Around 9:30 p.m. on the evening of the burglary, one of Wilcox's neighbors observed a man (later identified as Burwell) scale a supporting beam to the balcony of Wilcox's second floor apartment, kick out her kitchen window, and enter. The neighbor quickly summoned local police who apprehended Burwell as he exited the apartment onto the Wilcox balcony. Upon arrest, Burwell identified himself with an alias. He subsequently admitted to police that he entered the Wilcox apartment intending to steal items he found inside. Later investigation revealed Burwell had indeed assembled various household items which he had packed in a brown paper bag and placed in the center of the Wilcox kitchen floor.

Three days before the Burwell incident, Vicky Wilcox and her two young children began sleeping at her parents' home. This action was prompted by Wilcox's discovery that someone had tampered with the lock and hinges of her front door. Although Wilcox no longer intended to sleep in her apartment at the time Burwell burglarized it, she had not relinquished possession and control of the apartment to her landlord. Her apartment contained food, utensils, personal belongings, and clothing. In fact, she was in the apartment earlier on the day of the burglary to obtain money, some of her clothing, and items of food. Burwell did not know of her plans to move and did not have permission to enter on the night of the burglary.

Discussion

In an effort to reduce his conviction from a class B felony to a class C felony, Burwell argues the evidence shows Wilcox's apartment is not a "dwelling" because she never intended to sleep in her apartment again when the burglary occurred. Therefore, this case poses the question what distinguishes a person's dwelling, i.e., a person's home or place of lodging, from any other structure. Burwell posits it is the use or intended use of the structure by its inhabitant as a place for sleep.

Burglary is enhanced from a class C felony to a class B felony if the building or structure broken and entered is the "dwelling" of another. "Dwelling" is defined for purposes of IC 35-43-2-1 as "a structure or other enclosed space, permanent or temporary, moveable or fixed, that is a person's home or place of lodging." IC 35-41-1-10 (Burns 1985). The key words defining "dwelling" are "home or place of lodging." Three cases offer guidance, Watt v. State (1983), Ind. App., 446 N.E.2d 644, Jones v. State (1983), Ind. App., 457 N.E.2d 231, and Welch v. State (1987), Ind., 509 N.E.2d 824.

In Watt the burglarized premises had been the residence of Mollie Davis for fifty-five years prior to Mrs. Davis's four month stay with her daughter and her then present stay in a convalescent home. During Mrs. Davis' absence from the residence, her daughter had been redecorating and renovating the house which contained Mrs. Davis's clothing, furniture and other possessions. In affirming Watt's burglary conviction as a class B felony, this court acknowledged "a home is traditionally a place in which its family sleeps" (Watt, 446 N.E.2d 644, 645) or a place to which its family intends to eventually return after an absence. In holding Mrs. Davis's absence did not vitiate the character of the ...


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