MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 18 2019, 9:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Charles W. Lahey Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justice K. Kiama, April 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1809 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1712-F6-1133
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Justice Kiama (Kiama), appeals following his conviction
for residential entry as a Level 6 felony, Ind. Code § 35-43-2-1.5.
[2] We affirm.
ISSUE [3] Kiama presents one issue on appeal, which we restate as: Whether the trial
court abused its discretion when it refused his tendered instruction on criminal
trespass as a lesser-included offense of residential entry.
FACTS AND PROCEDURAL HISTORY [4] Kiama and Moses Mutheme (Mutheme) were long-time friends who had lived
together on and off over the course of their friendship. On December 5, 2017,
Kiama and Mutheme were involved in a physical altercation at Mutheme’s
house on Huey Street in South Bend, Indiana, during which Kiama was ejected
from the premises. As a result of this altercation, Kiama required stitches to
close a wound on his face.
[5] On December 8, 2017, Kiama and a second man went to Mutheme’s home.
Kiama walked onto the porch of Mutheme’s home while the second man
waited at the gate. Kiama knocked on the door, but no one answered. Kiama
was observed by a neighbor bending down to pick up an object from the porch
with which he broke a large picture window located next to the front door.
Kiama then crawled inside the window. The interior of the windows of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 2 of 7 Mutheme’s home had been winterized with plastic coverings. As Kiama
crawled through the window, he pierced the plastic covering to gain entry. A
short time later, Kiama exited through Mutheme’s front door and walked to the
street corner with the second man. The neighbor who had witnessed these
events alerted the authorities, who arrived and arrested Kiama.
[6] On December 11, 2017, the State filed an Information, charging Kiama with
Level 6 felony residential entry. On April 30, 2018, the trial court held Kiama’s
jury trial. Before the trial commenced Kiama tendered a jury instruction on
criminal trespass as a lesser-included offense of residential entry. Kiama
testified that he had knocked on the window of Mutheme’s home because he
got no response after knocking on the door. According to Kiama, the window
shattered when he rapped on it with his hand. Kiama did not note the
condition of the window before he knocked on it. Kiama testified that he then
became concerned for Mutheme’s welfare and crawled through the window to
check on him. Kiama also testified that he spotted some of his own property in
the home and took it with him when he left.
[7] Kiama attempted to develop a theory that the glass of the picture window was
weakened by bullet holes, making it susceptible to breaking when he simply
rapped on the window. Mutheme’s landlord testified that there were bullet
holes in other windows of the home but not in the plate glass window that
Kiama broke. An officer testified that even if plate glass is hit by a bullet, it
does not weaken the glass such that it would shatter if touched lightly in the
manner that safety glass does. After the close of evidence, the trial court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 3 of 7 rejected Kiama’s proposed criminal trespass instruction, finding that the
breaking and entering elements were not in dispute. The jury found Kiama
guilty of residential entry. On May 18, 2018, the trial court sentenced Kiama to
two years, all of which was credited to time served and the remainder
suspended to probation.
[8] Kiama now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Kiama contends that the trial court “erred” in refusing to instruct the jury on
criminal trespass as a factually-included, lesser offense of residential entry.
(Appellant’s Br. p. 8). When a defendant requests a jury instruction on a lesser-
included offense, the trial court must engage in the three-step analysis set forth
in Wright v. State, 658 N.E.2d 563 (Ind. 1995). First, the trial court must
determine if the allegedly lesser-included offense is inherently included by
comparing the statutory elements of the offenses to determine if the proposed
lesser-included offense may be proven by the same, or fewer, material elements
of the originally-charged, greater offense. Id. at 566. If the offense is not
inherently included in the charged crime, the trial court must then determine if
the offense is factually included by comparing the statutory elements of the
proposed lesser-included offense and the charging instrument to determine if
the “charging instrument alleges that the means used to commit the crime
charged include all of the elements of the alleged lesser[-]included offense.” Id.
at 567. If the allegedly lesser-included offense is either inherently or factually
included in the greater offense, the trial court goes on to consider if Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 4 of 7 there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater . . . .
Id.
[10] When determining if a serious evidentiary dispute exists, the trial court
examines the evidence presented by both parties regarding the element which
distinguishes the greater offense from the lesser offense. Young v. State, 699
N.E.2d 252, 255 (Ind. 1998). “This involves evaluating the ‘weight and
credibility of [the] evidence,’ and then determining the ‘seriousness of any
resulting dispute.’” Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (quoting
Fish v. State, 710 N.E.2d 183, 185 (Ind. 1999)). We review a trial court’s
determination that no serious evidentiary dispute exists for an abuse of
discretion. Id. We accord “considerable deference” to the trial court’s
determination, viewing the evidence in a light most favorable to it, and
determine whether the trial court’s decision can be justified in light of the
evidence and circumstances of the case. Id. (quoting Fish, 710 N.E.2d at 185).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 18 2019, 9:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Charles W. Lahey Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justice K. Kiama, April 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1809 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1712-F6-1133
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Justice Kiama (Kiama), appeals following his conviction
for residential entry as a Level 6 felony, Ind. Code § 35-43-2-1.5.
[2] We affirm.
ISSUE [3] Kiama presents one issue on appeal, which we restate as: Whether the trial
court abused its discretion when it refused his tendered instruction on criminal
trespass as a lesser-included offense of residential entry.
FACTS AND PROCEDURAL HISTORY [4] Kiama and Moses Mutheme (Mutheme) were long-time friends who had lived
together on and off over the course of their friendship. On December 5, 2017,
Kiama and Mutheme were involved in a physical altercation at Mutheme’s
house on Huey Street in South Bend, Indiana, during which Kiama was ejected
from the premises. As a result of this altercation, Kiama required stitches to
close a wound on his face.
[5] On December 8, 2017, Kiama and a second man went to Mutheme’s home.
Kiama walked onto the porch of Mutheme’s home while the second man
waited at the gate. Kiama knocked on the door, but no one answered. Kiama
was observed by a neighbor bending down to pick up an object from the porch
with which he broke a large picture window located next to the front door.
Kiama then crawled inside the window. The interior of the windows of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 2 of 7 Mutheme’s home had been winterized with plastic coverings. As Kiama
crawled through the window, he pierced the plastic covering to gain entry. A
short time later, Kiama exited through Mutheme’s front door and walked to the
street corner with the second man. The neighbor who had witnessed these
events alerted the authorities, who arrived and arrested Kiama.
[6] On December 11, 2017, the State filed an Information, charging Kiama with
Level 6 felony residential entry. On April 30, 2018, the trial court held Kiama’s
jury trial. Before the trial commenced Kiama tendered a jury instruction on
criminal trespass as a lesser-included offense of residential entry. Kiama
testified that he had knocked on the window of Mutheme’s home because he
got no response after knocking on the door. According to Kiama, the window
shattered when he rapped on it with his hand. Kiama did not note the
condition of the window before he knocked on it. Kiama testified that he then
became concerned for Mutheme’s welfare and crawled through the window to
check on him. Kiama also testified that he spotted some of his own property in
the home and took it with him when he left.
[7] Kiama attempted to develop a theory that the glass of the picture window was
weakened by bullet holes, making it susceptible to breaking when he simply
rapped on the window. Mutheme’s landlord testified that there were bullet
holes in other windows of the home but not in the plate glass window that
Kiama broke. An officer testified that even if plate glass is hit by a bullet, it
does not weaken the glass such that it would shatter if touched lightly in the
manner that safety glass does. After the close of evidence, the trial court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 3 of 7 rejected Kiama’s proposed criminal trespass instruction, finding that the
breaking and entering elements were not in dispute. The jury found Kiama
guilty of residential entry. On May 18, 2018, the trial court sentenced Kiama to
two years, all of which was credited to time served and the remainder
suspended to probation.
[8] Kiama now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Kiama contends that the trial court “erred” in refusing to instruct the jury on
criminal trespass as a factually-included, lesser offense of residential entry.
(Appellant’s Br. p. 8). When a defendant requests a jury instruction on a lesser-
included offense, the trial court must engage in the three-step analysis set forth
in Wright v. State, 658 N.E.2d 563 (Ind. 1995). First, the trial court must
determine if the allegedly lesser-included offense is inherently included by
comparing the statutory elements of the offenses to determine if the proposed
lesser-included offense may be proven by the same, or fewer, material elements
of the originally-charged, greater offense. Id. at 566. If the offense is not
inherently included in the charged crime, the trial court must then determine if
the offense is factually included by comparing the statutory elements of the
proposed lesser-included offense and the charging instrument to determine if
the “charging instrument alleges that the means used to commit the crime
charged include all of the elements of the alleged lesser[-]included offense.” Id.
at 567. If the allegedly lesser-included offense is either inherently or factually
included in the greater offense, the trial court goes on to consider if Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 4 of 7 there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater . . . .
Id.
[10] When determining if a serious evidentiary dispute exists, the trial court
examines the evidence presented by both parties regarding the element which
distinguishes the greater offense from the lesser offense. Young v. State, 699
N.E.2d 252, 255 (Ind. 1998). “This involves evaluating the ‘weight and
credibility of [the] evidence,’ and then determining the ‘seriousness of any
resulting dispute.’” Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (quoting
Fish v. State, 710 N.E.2d 183, 185 (Ind. 1999)). We review a trial court’s
determination that no serious evidentiary dispute exists for an abuse of
discretion. Id. We accord “considerable deference” to the trial court’s
determination, viewing the evidence in a light most favorable to it, and
determine whether the trial court’s decision can be justified in light of the
evidence and circumstances of the case. Id. (quoting Fish, 710 N.E.2d at 185).
[11] Here, the parties correctly agree that criminal trespass was not an inherently-
included offense. See Higgins v. State, 783 N.E.2d 1180, 1187-88 (Ind. Ct. App.
2003) (concluding that criminal trespass must by proven by elements not found
in the offense of residential entry), trans. denied. However, the State charged
Kiama with residential entry by alleging that he “did knowingly break and enter
the dwelling of [] [Mutheme].” (Appellant’s App. Vol. II, p. 101). Criminal
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 5 of 7 trespass is committed when a person, not having a contractual interest in the
property, knowingly or intentionally enters the dwelling of another without
consent. I.C. § 35-43-2-2(b)(5)(B). As charged in this case, the means alleged to
accomplish the residential entry comprised all of the elements of criminal
trespass, making criminal trespass a factually-included lesser offense. Wright,
658 N.E.2d at 567; see also Higgins, 783 N.E.2d at 1188-89 (holding that criminal
trespass was a lesser-included offense where residential entry information
alleged that defendant did knowingly break and enter a dwelling). Because
criminal trespass was a factually-included lesser offense of residential entry as
charged in this case, we must determine if a serious evidentiary dispute existed
as to the element that Kiama argues distinguished the residential entry and
criminal trespass offenses, namely, the element of knowingly breaking and
entering.
[12] Here, Kiama does not dispute that he broke the plate glass window or that he
entered Mutheme’s home. Rather, he contends that a serious evidentiary
dispute exited regarding his intent in that he argues that he accidentally broke
the window, and, thus, did not do so knowingly, as charged in the Information.
A person acts “‘knowingly’ if, when he engages in the conduct, he is aware of a
high probability that he is doing so.” I.C. § 35-41-2-2(b). The evidence most
favorable to the trial court’s determination was that Kiama picked up an object
from the front porch which he used to break the picture window. From this
evidence, the trial court reasonably concluded that Kiama was aware of a high
probability that he was breaking the window.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 6 of 7 [13] Although Kiama argued that the glass of the window was weakened by holes
such that it shattered when he simply knocked on the glass to alert Mutheme of
his presence, there was no credible evidence in the record that there were holes
in the plate glass window. Even if there had been, there was other evidence
that a hole would have weakened the plate glass so that it was susceptible to
shattering. Kiama’s claim of accidental breakage was further belied by the fact
that he had a previous physical altercation with Mutheme and, after breaking
the window, he entered and removed his own property. In addition, Kiama
broke through the plastic winterizing sheet behind the plate glass window as he
crawled through the window, a breaking which he does not even attempt to
argue on appeal was accidental. The trial court’s determination that no serious
evidentiary dispute existed was justified by the evidence, as viewed in a light
most favorable to that determination. See Leonard, 80 N.E.3d at 885. The trial
court did not abuse its discretion when it refused to give Kiama’s proposed
criminal trespass instruction. Id.
CONCLUSION [14] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it refused to give a jury instruction on criminal trespass as a
factually-included, lesser offense of residential entry.
[15] Affirmed.
[16] Bailey, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 7 of 7