from the Huntington Circuit Court. The Honorable Thomas M.
Hakes, Judge. The Honorable Karen A. Springer, Senior Judge.
Attorneys for Appellant Curtis T. Hill, Jr. Ian McLean
Attorney for Appellee Mark Small
Friedlander, Senior Judge
The State of Indiana appeals the trial court's grant of
Amber McHenry's motion to dismiss her Level 2 felony
charge of burglary while armed with a deadly weapon, in which
the trial court essentially determined that a handgun
obtained in the course of a burglary cannot support the
elevated charge of burglary while armed with a deadly weapon
under Indiana Code section 35-43-2-1(3)(A). We affirm.
The State presents one issue for our review, which we restate
as: whether the trial court erred when it granted
McHenry's motion to dismiss the charge of burglary while
armed with a deadly weapon.
In October 2015, Andrew Stoffel returned home to discover
that his residence had been burglarized and that a handgun
with three magazines and a safe containing coins and other
small items had been taken. In May 2016, McHenry was charged
with Count 1 burglary as a Level 2 felony and Count 2
burglary as a Level 4 felony for her alleged involvement in
The following August, McHenry filed a motion to dismiss the
Level 2 felony charge of burglary while armed with a deadly
weapon, claiming that because the handgun was obtained in the
course of the burglary it could not serve to elevate the
burglary charge. Following a hearing, the trial court granted
McHenry's motion. The State then filed a motion to stay
the proceedings, which the trial court also granted. The
State now appeals the trial court's grant of
McHenry's motion to dismiss, and we are thus called upon
to interpret Indiana Code section 35-43-2-1(3)(A).
The primary purpose of statutory interpretation is to
determine and give effect to the intent of the legislature.
Adams v. State, 960 N.E.2d 793 (Ind. 2012). The best
evidence of legislative intent is the language of the statute
itself. Chambliss v. State, 746 N.E.2d 73 (Ind.
2001). If the language of the statute is clear and
unambiguous, we must apply its plain and ordinary meaning
without resort to any other rules of statutory construction.
Adams, 960 N.E.2d 793.
When a statute is susceptible to more than one reasonable
interpretation, it is ambiguous, and we resort to the rules
of statutory construction in order to give effect to the
legislature's intent. Id. Penal statutes must be
construed strictly against the State, with any ambiguities
resolved in favor of the defendant. Chastain v.
State, 58 N.E.3d 235 (Ind.Ct.App. 2016), trans.
denied. Criminal statutes should not be enlarged by
construction beyond their fair meaning; yet, they should not
be so narrowly construed as to exclude cases they fairly
Indiana Code 35-43-2-1(3)(A) provides:
A person who breaks and enters the building or structure of
another person, with intent to commit a felony or theft in
it, commits burglary, a Level 5 felony. However, the offense
. . . .
(3) a Level 2 felony if ...