Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Dec 04 2012, 8:54 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
B.W., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1205-JV-421 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Gary Chavers, Judge Pro Tempore The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1203-JD-826
December 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge B.W. appeals her adjudication as a delinquent for committing acts that would
constitute residential entry as a class D felony1 and criminal mischief as a class B
misdemeanor2 if committed by an adult. B.W. raises one issue, which we revise and
restate as whether the evidence is sufficient to sustain her adjudication as a delinquent.
We affirm.
The facts most favorable to the adjudication follow. Terry Proctor and Zanita
Bibbs lived in an apartment in Indianapolis in March 2012. Chokie Thompson had
leased the apartment for Proctor, and Bibbs had lived at the apartment since November of
2011. On March 25, 2012, after Bibbs had fallen asleep in her bedroom, B.W., who was
born in August 1995, and B.W.’s older sister beat on and ultimately kicked in the
apartment door. Bibbs woke up and approached the door as it was “about to fall” and
observed the door was kicked “one more time and it fell all the way off” its hinges.
Transcript at 6. B.W. and her sister entered the apartment without permission, and Bibbs
called the police. The police were able to apprehend B.W. but were unable to apprehend
B.W.’s older sister.
On March 27, 2012, the State alleged that B.W. was a delinquent for committing
residential entry by entering the dwelling of Bibbs and criminal mischief by causing
damage to the property of Bibbs as a class D felony and class B misdemeanor if
committed by an adult. The State later amended the charging information to allege that
the dwelling was that of Thompson, Proctor, and Bibbs and that the damages were caused
to the property of Thompson, Proctor, and Bibbs. The juvenile court adjudicated B.W. to
1 Ind. Code § 35-43-2-1.5 (2004). 2 Ind. Code § 35-43-1-2 (Supp. 2007). 2 be a delinquent child for committing acts that would constitute residential entry as a class
D felony and criminal mischief as a class B misdemeanor if committed by an adult. The
court noted B.W.’s prior delinquent adjudications for battery as a class A misdemeanor if
committed by an adult and placed B.W. on standard conditions of probation for
approximately three months.
The issue is whether the evidence is sufficient to sustain B.W.’s adjudication as a
delinquent for committing acts that would constitute residential entry as a class D felony
and criminal mischief as a class B misdemeanor if committed by an adult. When the
State seeks to have a juvenile adjudicated as a delinquent for committing an act that
would be a crime if committed by an adult, the State must prove every element of the
crime beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App.
2006), trans. denied. In reviewing a juvenile adjudication, this court will consider only
the evidence and reasonable inferences supporting the judgment and will neither reweigh
evidence nor judge the credibility of the witnesses. Id. If there is substantial evidence of
probative value from which a reasonable trier of fact could conclude that the juvenile was
guilty beyond a reasonable doubt, we will affirm the adjudication. Id. It is well
established that “circumstantial evidence will be deemed sufficient if inferences may
reasonably be drawn that enable the trier of fact to find the defendant guilty beyond a
reasonable doubt.” Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001).
A. Residential Entry
The offense of residential entry as a class D felony is governed by Ind. Code § 35-
43-2-1.5, which provides that “[a] person who knowingly or intentionally breaks and
enters the dwelling of another person commits residential entry, a Class D felony.” 3 “Dwelling” means a building, structure, or other enclosed space, permanent or temporary,
movable or fixed, that is a person’s home or place of lodging. Ind. Code § 35-41-1-10
(Supp. 2010) (definition now found at Ind. Code § 35-31.5-2-107 (Pub. L. No. 114-2012,
§ 67, 99 (eff. Jul. 1, 2012)). Thus, to adjudicate B.W. to be a delinquent for committing
acts that would constitute residential entry as class D felony if committed by an adult, the
State was required to prove that B.W. knowingly or intentionally broke and entered the
dwelling of another person.
B.W. argues that the State “originally named only [] Bibbs as the victim of the
residential entry and criminal mischief offenses,” that in its amended information the
State “add[ed] [] Thompson and [] Proctor as additional dwellers and property owners,
joined by ‘and’ rather than ‘or’ or ‘and/or.’” Appellant’s Brief at 6. B.W. asserts that the
State is required to prove the commission of the offense as to each named victim, that
Thompson “merely leased the apartment,” that “there was NO evidence presented that
Thompson utilized the apartment as his home or dwelling, ie. sleeping
accom[m]odation,” that “the State was bound to prove that it was [Thompson’s] dwelling
as well as that of [Bibbs] and Proctor,” and that the finding that B.W. committed
residential entry must be vacated. Id. at 7.
The State maintains that the evidence was sufficient to sustain the finding that
B.W. committed residential entry and that the Indiana Supreme Court “has broadly
construed the term dwelling to protect ‘the sanctity and security of habitation,’ and these
interests do not disappear just because the property owner does not sleep on the premises
when the entry occurs.” Appellee’s Brief at 5 (citing Ferrell v. State, 565 N.E.2d 1070,
1071 (Ind. 1991) (quoting Burwell v. State, 517 N.E.2d 812, 814 (Ind. Ct. App. 1988), 4 reh’g denied, trans. denied)). The State further maintains that “[a]lthough a person must
inhabit the building for it to qualify as a dwelling, the Indiana Supreme Court has held
that the owner need not inhabit the dwelling, as long as someone inhabits it.” Id. (citing
Welch v. State, 509 N.E.2d 824, 825 (Ind. 1987) (citing Carrier v. State, 89 N.E.2d 74
(Ind. 1949))). The State asserts that the “evidence is sufficient to show that the apartment
was inhabited as a dwelling by Bibbs and Proctor, and that Thompson, who rented the
apartment for Proctor, was a proper victim.” Id.
B.W. argues in reply that “[t]he issue is not whether the apartment was a dwelling,
but whether it was the dwelling of all of the persons the State chose to list in the charging
information,” that the cases cited by the State support the argument that a dweller does
not have to be sleeping at the location at the time of the offense, and that in this case
“there was no evidence that [] Thompson ever spent any time at all, let alon[e] a night, at
the apartment.” Appellant’s Reply Brief at 1-2.
B.W. does not argue that the apartment was not a dwelling. Instead, she focuses
on the fact that Thompson’s name was included in the charging information when it
alleged that B.W. entered “the dwelling of [] Thompson, [] Proctor and [] Bibbs.” See
Appellant’s Appendix at 34. B.W. essentially appears to assert that there is a material
variance between the charging information and the evidence produced at trial which
resulted in insufficient evidence to convict him as charged. See Rupert v. State, 717
N.E.2d 1209, 1211-1212 (Ind. Ct. App. 1999) (addressing the defendant’s argument of
whether a variance between the information and the evidence was fatal in the context of
the issue of whether the evidence was insufficient to support the defendant’s conviction).
5 To the extent that a variance exists, we note that an information must be “a plain,
concise, and definite written statement of the essential facts constituting the offense
charged,” Ind. Code § 35-34-1-2(d), and “must be sufficiently specific to apprise the
defendant of the crime for which he is charged and to enable him to prepare a defense.”
Bonner v. State, 789 N.E.2d 491, 493 (Ind. Ct. App. 2003) (quoting Jones v. State, 467
N.E.2d 1236, 1241 (Ind. Ct. App. 1984)). “A criminal defendant has the right to be
advised of the nature and cause of the accusation against him. There must be consistency
between the allegations charged and the proof adduced . . . .” Simmons v. State, 585
N.E.2d 1341, 1344 (Ind. Ct. App. 1992) (citation omitted). A variance is an essential
difference between proof and pleading. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999).
Not all variances are material or fatal, however. Id. The test to determine whether a
variance between the proof at trial and a charging information or indictment is fatal is as
follows:
(1) was the defendant misled by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in [a] future criminal proceeding covering the same event, facts, and evidence against double jeopardy?
Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997) (quoting Harrison v. State, 507
N.E.2d 565, 566 (Ind. 1987)).3 In other words, to award relief on the basis of a variance
3 The Court in Mitchem noted:
Applying this test is essential because it addresses two constitutional guaranties of the accused in criminal prosecutions. Part one of the test meets the requirements under Art. 1, § 13 of the Indiana Constitution which entitles defendant “to demand the nature and cause of the accusation against him, and to have a copy thereof.” The second part of the test for variance meets the requirements of Art. 1, § 14 of the Indiana Constitution which provides that “no person shall be put in jeopardy twice for the same offense.” See 6 between allegations in the charge and the evidence at trial, the variance must be such as
to either have misled the defendant in the preparation and maintenance of his defense
with resulting harm or prejudice or leave the defendant vulnerable to double jeopardy in a
future criminal proceeding covering the same event, facts, and evidence. Winn v. State,
748 N.E.2d 352, 356 (Ind. 2001).
Here, B.W. was well aware of the alleged criminal conduct of which she was
accused. B.W. does not complain that the allegations misled her in preparing a defense.
Further, B.W. does not claim that she would be subject to future criminal prosecutions
based upon the events or facts which led to the adjudication for this offense. Under the
circumstances, we cannot say that any variance was material or prejudiced B.W. See
Reed v. State, 438 N.E.2d 704, 705-706 (Ind. 1982) (noting that the information charged
that the defendant entered the dwelling of Leroy Cross and that the evidence showed that
Cross was neither the owner nor primary tenant of the dwelling but resided there with the
primary tenant, and holding that there was “no room for confusion with regard to the
premises burglarized,” that “[t]he allegation that it was the property of Leroy Cross was
surplusage and not misleading in any material respect,” and that there was no material
variance); Parahams v. State, 908 N.E.2d 689, 693 (Ind. Ct. App. 2009) (concluding that
a variance was not fatal to the State’s case and did not prejudice the defendant); Bates v.
State, 486 N.E.2d 574, 577-578 (Ind. Ct. App. 1985) (holding that the inclusion of the
Madison [v. State], 234 Ind. [517,] 545-46, 130 N.E.2d [35,] 48 [(1955)] (concurring opinion of Arterburn, J., in which three other justices concurred).
685 N.E.2d at 677 n.8. 7 manager’s name on the indictment for burglary in place of the true owner’s name was not
fatal and that there was no variance).
Further, the cases cited by the State, as noted by B.W., stand for the general
proposition that a person’s home or place of lodging may not lose its characterization as a
“dwelling” where the person or persons who occupied the home or place of lodging had
not slept or stayed there for some period of time. For instance, in Ferrell, the Court found
that “[e]ven though Bond had not slept in the house for four months, he maintained his
home address and telephone number there and would stop by to pick up his mail and
generally check out the house on a regular basis” and thus that “[t]he victim’s house
constituted a ‘dwelling’ for purposes of the burglary statute.” See Ferrell, 565 N.E.2d at
1072; see also Welch, 509 N.E.2d at 825 (holding that the victim’s temporary absence
did not alter the character of his apartment as a dwelling). B.W. does not argue that the
apartment did not contain “those accoutrements usual to the convenience of habitation.”
See Ferrell, 565 N.E.2d 1072 (citing Burwell, 517 N.E.2d at 815). We cannot say that
the apartment where Proctor and Bibbs resided was not a dwelling as charged or as
defined by statute or that the apartment lost its characterization as a dwelling due to the
fact that the evidence showed that Thompson was the lessee on the apartment’s lease and
did not reveal that Thompson resided at the apartment. The evidence was sufficient to
show that B.W. entered “the dwelling of [] Thompson, [] Proctor and [] Bibbs,”
Appellant’s Appendix at 34, and the inclusion of Thompson’s name in the amended
charging information does not require reversal.
Given the facts of the case, we conclude that the State presented evidence of a
probative nature from which a reasonable trier of fact could find that B.W. committed 8 acts that would constitute residential entry as a class D felony if committed by an adult.
See Poore v. State, 681 N.E.2d 204, 208 (Ind. 1997) (holding that the evidence was
sufficient to sustain defendant’s conviction for residential entry as a class D felony).
B. Criminal Mischief
The offense of criminal mischief as a class B misdemeanor is governed by Ind.
Code § 35-43-1-2, which provides that “[a] person who . . . recklessly, knowingly, or
intentionally damages or defaces property of another person without the other person’s
consent . . . commits criminal mischief, a Class B misdemeanor.” In its amended
charging information, the State alleged that B.W. “did recklessly, knowingly or
intentionally, without consent, damage or deface the property of [] Thompson, [] Proctor
and [] Bibbs, that is: by having damaged the entry door of their residence, causing
damage in an amount less than $250.00.” Appellant’s Appendix at 34. Thus, to
adjudicate B.W. to be a delinquent for committing an act that would constitute criminal
mischief as a class B misdemeanor if committed by an adult, the State needed to prove
that B.W. recklessly, knowingly, or intentionally damaged or defaced property of another
person without the person’s consent. Property is that “of another person” if the other
person has a possessory or proprietary interest in it, even if an accused person also has an
interest in that property. Ind. Code § 35-41-1-10 (definition now found at Ind. Code §
35-31.5-2-253 (Pub. L. No. 114-2012, § 67, 122 (eff. Jul. 1, 2012)).
B.W. argues that “[b]y charging in the conjunctive, the State was required to prove
that the door was the property of all three (3) [Thompson, Proctor, and Bibbs] as well as
the door to their residence,” that Thompson and Proctor had a proprietary or possessory
interest in the door, and that Bibbs, “as merely an invited guest, had neither interest in the 9 door.” Appellant’s Brief at 8-9. B.W. further argues that “[n]o evidence was presented
that the door was actually damaged when it came off the hinges and fell into the
apartment,” that evidence did not show that “the door was so injured or harmed that its
value or usefulness was affected,” and that “[i]t very well could have just needed to be
placed back on the hinges.” Id. at 9. The State argues that the evidence shows that B.W.
damaged the front door of the apartment by kicking it off its hinges, that the door would
not close properly, and that a reasonable fact finder could infer property damage from the
evidence. The State further argues that Bibbs had a possessory interest in the apartment
as she lived there for four months. B.W. argues in reply that evidence was not presented
“to prove that [Bibbs] sufficiently possessed the apartment to be able to assert control
over it” and that “the State failed to prove that the door being off the hinges constituted
damage.” Appellant’s Reply Brief at 2-3.
To the extent B.W. essentially argues that a variance exists between the charging
information and the evidence produced at trial by the inclusion of Bibbs in the charging
information, we note, similar to our conclusions in Part A above, that B.W. was aware of
the criminal conduct alleged by the State, that B.W. was not misled in preparing a
defense, and that B.W. would not be subject to future criminal prosecutions based upon
the facts which led to the adjudication for this offense. Consequently, we cannot say that
any such variance here was material or prejudiced B.W. Further, the record reveals that
Bibbs testified that she had gone to sleep and had been awakened by beating and kicking
at the door. Bibbs testified that she approached the door, noticed that it was “about to
fall,” and observed that the persons outside the door “kicked it one more time and it fell
all the way off.” Transcript at 6. Bibbs testified that B.W. and her older sister entered 10 the apartment without permission. Bibbs testified that B.W.’s older sister was attempting
to drop off a baby who was Proctor’s child. In addition, Bibbs testified that she had lived
in the apartment from November 2011 until the date of the incident in March 2012.
Based upon the evidence, we cannot say that a reasonable trier of fact could not
determine that B.W. damaged the entry door of the apartment and that Bibbs as well as
Thompson and Proctor had a possessory or proprietary interest in the property. See
Womack v. State, 738 N.E.2d 320, 324 (Ind. Ct. App. 2000) (noting that possession of
title is not in itself conclusive proof of ownership and that the three primary indicia of
ownership of personal property are title, possession, and control), trans. denied. Thus,
we conclude that evidence of probative value exists from which the trier of fact could
have found B.W. guilty beyond a reasonable doubt of acts that would constitute criminal
mischief as a class B misdemeanor if committed by an adult. See Poore, 681 N.E.2d at
208 (holding that the evidence was sufficient to sustain the defendant’s conviction for
criminal mischief); McGuire v. State, 625 N.E.2d 1281, 1282 (Ind. Ct. App. 1993)
(holding that the evidence was sufficient to sustain the defendant’s conviction for
criminal mischief as a class B misdemeanor).
For the foregoing reasons, we affirm B.W.’s adjudication for committing acts that
would constitute residential entry as a class D felony and criminal mischief as a class B
misdemeanor if committed by an adult.
Affirmed.
BAILEY, J., and VAIDIK, J., concur.