Shane L. Keller, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
Appeal from the Washington Superior Court. The Honorable Frank Newkirk, Jr., Judge. Cause No. 88D01-1307-FB-489.
ATTORNEYS FOR APPELLANT: Stacy R. Uliana, Bargersville, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, Indiana.
Kirsch, Judge. Friedlander, J., and Crone, J., concur.
[¶ 1] Shane L. Keller was convicted following a jury trial of two counts of Class B felony burglary, one count of Class C felony burglary, three counts of Class D felony theft, and two counts of Class D felony receiving stolen property. The trial court sentenced Keller to maximum sentences on each of the eight convictions to run concurrently with one another, for an aggregate of twenty years executed. After Keller admitted to being a habitual offender, the trial court imposed a thirty-year enhancement to Count I, a Class B felony burglary conviction, for a total executed sentence of fifty years. Keller appeals his convictions and his sentence raising the following reordered and restated issues:
I. Whether the trial court abused its discretion when it admitted and excluded certain evidence;
II. Whether the trial court abused its discretion in instructing the jury regarding the definition of " dwelling" for the purpose of convicting Keller of Class B felony burglary; and
III. Whether Keller's convictions and sentences for theft and receiving stolen property violate the prohibition against double jeopardy.
[¶ 2] We affirm in part, reverse in part, and remand for resentencing.
Facts and Procedural History
[¶ 3] Jeremy Hardwick's great-grandparents lived in a farmhouse on property located in Washington County, Indiana; a barn, a garage, and an outbuilding were also located on the land. After Hardwick's great-grandparents died in the late 1990s, the farmhouse remained vacant. In October 2012, Hardwick, his wife, and two children moved into Hardwick's sister-in-law's
home, with the plan to remodel and then move into the farmhouse. No one slept at the farmhouse during the remodeling project; however, some food and most of the family's belongings were stored in the farmhouse. Hardwick also received his mail at the farmhouse.
[¶ 4] Hardwick described the farmhouse as being in " pretty rough" condition because it " [h]ad been sitting vacant for probably ten or twelve years." Tr. at 503. Photographs taken of the farmhouse around May 2013 revealed that most of the rooms were filled with boxes, bags, equipment, and assorted debris. Def.'s Ex. A. Hardwick began the remodeling project in the spring of 2013 and planned to do it alone. The project required Hardwick to do major renovations, and Hardwick worked on those renovations about four or five hours each night. At that time, he was also working at a factory job about six days a week, eight hours a day, and each day, he stopped at the farmhouse property to feed livestock.
[¶ 5] On May 9, 2013, Hardwick stopped at the property after his factory shift. As he entered the barn, which had been closed but not locked, Hardwick noticed that several items had been moved from their normal place. When he inspected other buildings, he saw that the locked garage door had been pried open. Hardwick called the Washington County Sheriff's Department (" Sheriff's Department" ), and Deputy Joseph Keltner responded. Further investigation revealed that Hardwick's .22 caliber, semiautomatic rifle and shells had been stolen from his truck, which had been parked in the barn. Also missing from the barn were a socket set and some combination wrenches. A Stihl chainsaw and a Stihl weed eater were missing from the garage.
[¶ 6] That same evening, realizing that other items of value were still on the property, Hardwick and his wife bought four infrared " game cameras" and installed them in the farmhouse and other main buildings on the farm. Tr. at 513. Each camera was motion activated and took black and white images, which were stored on a removable SD memory card (" SD card" ). Id. at 652. Thereafter, Hardwick checked the game cameras daily.
[¶ 7] On June 2, 2013, Hardwick and his wife arrived at the property and noticed that the glass to the back door of the farmhouse was shattered. Several items were missing from the farmhouse, including an air compressor, a Craftsman nail gun, three cans of Zinsser Bulls Eye 1-2-3 primer, a circular saw, twenty boxes of cherry laminate flooring, a spool of electrical wiring, a kitchen faucet, drywall tools, and various items of food.
[¶ 8] Hardwick called the Sheriff's Department, and when Deputy Keltner responded, they discovered that the farmhouse game camera had taken several images (" June 2 photographs" ). Contained within the June 2 photographs were images of the male burglar's profile (" State's Exhibit 17" ) and the distinctive logo on the t-shirt he wore (" State's Exhibit 16" ). Removing the SD card from the camera, Deputy Keltner and Hardwick viewed the June 2 photographs on Deputy Keltner's laptop; neither immediately recognized the man pictured. After Deputy Keltner downloaded the June 2 photographs to his laptop, he returned the SD card to Hardwick, who stored it in a drawer. That evening, Hardwick installed a new SD card into the farmhouse game camera.
[¶ 9] Two days later, on June 4, 2013, Hardwick arrived at the farm and noticed another door to the farmhouse was broken. Hardwick again called the Sheriff's Department, and this time Sergeant Wayne Blevins responded. Inside the farmhouse,
Sergeant Blevins found footprints that were imprinted with the Nike logo. Hardwick found that a stainless-steel sink and ammunition, among other things, were missing from the farmhouse. Sergeant Blevins viewed the pictures on the SD card (" June 4 photographs" ) and, like Deputy Keltner, downloaded them to his laptop and returned the SD card to Hardwick.
[¶ 10] As part of the investigation, Deputy Keltner showed a photograph of the burglar's profile--introduced at trial as State's Exhibit 17--to several Sheriff's Department deputies, individually, to see if they could identify the suspect. Sergeant Blevins and Deputy James Strange, each of whom had known Keller for twenty years, identified the suspect as Keller. Tr. at 651, 653, 657-59. Detective Brent Miller, who had known Keller for twenty-four years, was shown the photograph of the burglar's profile as well as two enlarged and enhanced copies of that same photo. See State's Exs. 17, 31, 34. Detective Miller also identified the suspect as Keller. Tr. at 740-41, 790-92.
[¶ 11] Deputy Keltner obtained a warrant to search Keller's residence. On July 11, 2013, deputies executed that warrant and seized from Keller's closet a t-shirt marked with the distinctive logo pictured in the June 2 photographs. Keller, who was home during the search, admitted that the t-shirt belonged to him. The officers also seized a can of the same primer that had been taken from the farmhouse and saw no sign that Keller was priming any walls. The officers did not find any other stolen items or Nike shoes. On July 12, 2013, the State charged Keller in connection with the June 2 burglary with one count of Class B felony burglary, one count of Class D felony theft, and one count of Class D felony receiving stolen property. The State also alleged that Keller was a habitual offender.
[¶ 12] Prior to trial, Keller made several phone calls from jail, which were recorded. The State admitted and published each recording without objection. On August 23, 2013, Keller called his father (" Father" ) and instructed:
You go over to my house and you go, you tell Michelle you want papers out of the car and make sure there is no fucking hat, gloves, no fucking paperwork in the glove box. Take all of that fucking shit with you. I need all that out of the car.
Tr. at 725 ( State's Ex. 39). In the June 2 photographs, the burglar is wearing a hat and gloves. Id. at 722-23.
[¶ 13] On September 6, 2013, while still in jail, Keller called James Cole, a neighbor who lived across the street from Keller, saying:
Listen and listen good. Go to my house, go upstairs. Face your house and look. That's all I'm saying, don't say no more. Don't repeat what I just said . . . . That's all you got to do. I mean, about four or five up and face your house and look around. . . . And everything, like I said, I just kind of wanted to see if you'd take care of that one problem for me. As far as I know, all they got is two pictures on me and it's from a trail camera. All I need for you . . . to do is that one thing and see what's over there that you think you can sell. If there's something you can sell let me know, write me a letter and tell me what you can get out of it, get me some money ...