Ryan Lovely v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 8, 2019
• Docket: 18A-CR-2776
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 08 2019, 9:15 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cristin L. Just Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana Erik J. Bryant Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ryan Lovely, May 8, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2776 v. Appeal from the Jasper Circuit Court State of Indiana, The Honorable John D. Potter, Appellee-Plaintiff. Judge Trial Court Cause No. 37C01-1802-F4-169

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 1 of 11 [1] Ryan Lovely appeals his conviction and sentence for burglary as a level 4

felony. He raises two issues which we revise and restate as:

I. Whether the evidence is sufficient to sustain his burglary conviction as a level 4 felony; and

II. Whether his sentence is inappropriate in light of the nature of the offense and his character.

We affirm.

Facts and Procedural History

[2] On February 25, 2018, Lovely burglarized a house in Gifford, Indiana. J.N.

Garner Wireman, Jr., (“Garner”) and Danielle Wireman (“Danielle”), who

were at their home in Pendleton, Indiana, received a notification from their

security system service, and video showed an individual in the living room of

their house in Gifford. The police later arrested Lovely. On February 28, 2018,

the State charged him with Count I, burglary as a level 4 felony; Count II,

residential entry as a level 6 felony; and Count III, theft as a class A

misdemeanor.

[3] At the jury trial, Garner testified that he and his wife Danielle had inherited the

house in Gifford from his father, who had passed away in August 2017. When

asked how he used the house in Gifford, he testified “[w]e were using as a

weekend getaway when we get there for the weekends somehow. There’s quite

a bit of work that needs to be done, so we’re still working on it as well.”

Transcript Volume 2 at 77. He testified “[w]e usually would stay Friday,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 2 of 11 Saturday and leave Sunday,” he was able to cook there, there was a working

stove and refrigerator, they did laundry, and there was electricity and running

water. Id. When asked “since you inherited that house, how long would you

say that you would stay there? How often,” he replied “[w]e would try to go at

least once a month, sometimes twice a month, depending on what we wanted

to do.” Id. He indicated that he lived with his father and took care of him

during the last month of his life and that he had visited him quite often. When

asked how long his father had lived there, he testified “[w]e, as a family, moved

there in 1984 and he’d lived there since then.” Id. When asked how many

times he had been to the house after he inherited it and before the burglary, he

replied “I’d say maybe a dozen times.” Id. at 84. He indicated that his father

had collected quite a bit and was a pack rat by nature, that he was trying to sort

through things and was not familiar with every piece of property his father

owned at the time he passed away, and that he was still deciding what to keep.

When asked the last time he visited the house prior to the burglary, he stated he

had been there in January to check on things and make sure the furnace was

running.

[4] Danielle indicated her primary residence was in Pendleton and her secondary

residence was in Gifford. She testified that the house in Gifford was “kinda like

a second home for us. We try to go up once a month, or twice a month and

spend the weekend there.” Id. at 97. She testified that Garner’s daughter, who

was twenty-three, used the property and, when asked how often his daughter

used the property, she replied “[p]robably about once a month as well. When

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 3 of 11 she’s not there with us, she has her grandparents in the area, so she does goes

up there and check on the house.” Id. When asked why they installed the

security cameras, she testified “[w]e knew that the house was going to be empty

most of the time, except for when we were there, so we wanted to be able to

look over the property when we weren’t there.” Id. at 98. The jury found him

guilty as charged. The court entered judgments of conviction on Counts I and

III and sentenced Lovely to concurrent terms of 3,650 days on Count I and 360

days on Count III.

Discussion

I.

[5] The first issue is whether the evidence is sufficient to sustain Lovely’s

conviction for burglary as a level 4 felony. When reviewing claims of

insufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g

denied. We look to the evidence and the reasonable inferences therefrom that

support the verdict. Id. The conviction will be affirmed if there exists evidence

of probative value from which a reasonable jury could find the defendant guilty

beyond a reasonable doubt. Id.

[6] Lovely asserts that the structure he burglarized was not a dwelling and the

evidence does not support his conviction for burglary as a level 4 felony. He

argues the owner of the home had died almost seven months prior to the

reported burglary, there is no indication that the Wireman family enjoyed

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 4 of 11 family activities or vacations at the house, Garner had not been to the house

since mid-January, and Danielle stated the reason the security cameras were

installed was because the house would be empty most of the time. He argues

that, based on the infrequent visits and the lack of personal knowledge of details

regarding the state of the house, it is reasonable to conclude that the house

remained vacant due to the death of the homeowner and his children had not

yet decided what they were going to do with the property. The State maintains

the jury could reasonably conclude the residence was a dwelling for purposes of

the burglary statute, that Garner’s father lived at the residence for thirty-four

years until his death, and the residence did not lose its status as a dwelling.

[7] Ind. Code § 35-43-2-1 provides that 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. The statute further provides that the offense

is a level 4 felony if the building or structure is a dwelling. Ind. Code § 35-31.5-

2-107 provides: “‘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.” “[B]urglary of a dwelling is not so much an offense against

property as it is an offense against the sanctity and security of habitation. To

that end, the legislature has provided an increased penalty for burglarizing a

dwelling because of the potential danger to the probable occupants.” Howell v.

State, 53 N.E.3d 546, 549 (Ind. Ct. App. 2016) (citations and internal quotation

marks omitted), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 5 of 11 [8] In Howell, the defendant burglarized a house hours after the sole occupant of the

house had been found dead inside. 53 N.E.3d at 547. We observed that it is

well established that, if a house is left empty temporarily by its occupant, the

house does not lose its status as a dwelling if the occupant intends to return. 53

N.E.3d at 549-550 (citing Hayden v. State, 19 N.E.3d 831, 837 (Ind. Ct. App.

2014) (holding that a house was a dwelling where the previous occupant

Ronald had not lived in the house for approximately one year before the

defendant’s offense and was living in a nursing home, all of Ronald’s personal

possessions remained in the home, electrical service remained in place, it was

unlikely Ronald would return to the house, and another person took care of the

exterior of the home), reh’g denied, trans. denied; Middleton v. State, 181 Ind. App.

232, 391 N.E.2d 657, 661 (1979) (finding that a house was a dwelling where it

had been burglarized while the owner was vacationing in Florida for

approximately five months); 3 Wayne R. LaFave, Substantive Criminal Law §

21.1(c) (2d ed. 2003) (“If the place is one of human habitation, there is no

requirement that a person be present therein at the time of the offense. If the

residents are away, be it for a short time or for extended portions of the year, it

will still suffice as a dwelling house.” (footnotes omitted))). We found that it is

reasonable to construe dwelling to include structures that have been occupied in

the immediate past by a recently deceased resident and that this rule is

consistent with the purpose of the burglary statute which is to provide an

increased penalty for burglarizing a dwelling due to the potential danger to

probable occupants. Id. at 550 (citation omitted). We also observed that, even

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 6 of 11 after the sole occupant of a house dies, it is common and expected for people

still to be at the house. Id. at 547 (citation omitted).

[9] Further, we have observed that the term dwelling has been legislatively enlarged

to afford protection to interests in the sanctity and security of habitation which,

once established, do not necessarily fail because of the lack of use for purposes

of sleep and that “a structure, once a dwelling, does not lose that character until

such time as its inhabiter vacates the premises to the extent it no longer contains

those accoutrements usual to the convenience of habitation.” Burwell v. State,

517 N.E.2d 812, 814-815 (Ind. Ct. App. 1988), reh’g denied, trans. denied. See also

Ferrell v. State, 565 N.E.2d 1070, 1072 (Ind. 1991) (observing that, while owner

of the burglarized house was living with his girlfriend full-time, merely stored

his furniture and clothes in his house while it was listed to be sold, and had not

slept in his house for four months, the owner went to his house nearly every day

to pick up his mail and occasionally would go inside for a few hours, and

holding that the owner’s furniture, appliances, and clothing in the house

constituted accoutrements usual to the convenience of habitation and that the

house had not lost its character as a dwelling).

[10] The record reveals that Garner’s father lived at the residence in Gifford from

1984 until his death in August 2017. While he died approximately six months

before the burglary and Danielle indicated the cameras had been installed

because the house would be empty most of the time, the evidence supports the

finding that the house continued to contain those accoutrements usual to the

convenience of habitation. The residence had running water, electricity, an

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 7 of 11 operational furnace and stove, and a refrigerator, and Garner and his family

were able to cook and did laundry there. When asked how often he visited the

house since he inherited it, Garner stated “[w]e would try to go at least once a

month, sometimes twice a month, depending on what we wanted to do.”

Transcript Volume 2 at 77. He also indicated he had been to the house “maybe

a dozen times” after he inherited the house. Id. at 84. Danielle testified that the

house was “kinda like a second home for us” and “[w]e try to go up once a

month, or twice a month and spend the weekend there.” Id. at 97. She also

indicated that Garner’s daughter visited the property “[p]robably about once a

month as well.” Id.

[11] As we observed in Howell, even after the sole occupant of a home dies, it is

common and expected for people still to be at the house, see 53 N.E.3d at 547,

which is what the evidence demonstrates occurred in this case. The finding that

the home in Gifford was a dwelling is consistent with the purpose of the

burglary statute to provide an increased penalty for burglarizing a dwelling due

to the potential danger to probable occupants. The court instructed the jury

regarding the definition of dwelling. The jury was able to consider the

testimony elicited from Garner and Danielle, who were thoroughly cross-

examined by Lovely’s counsel. We will not assess the credibility of the

witnesses or reweigh the evidence. See Jordan, 656 N.E.2d at 817. Based upon

our review of the evidence, we conclude that the State presented evidence of a

probative nature from which the jury could find beyond a reasonable doubt that

he committed burglary of a dwelling as a level 4 felony.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 8 of 11 II.

[12] The next issue is whether his sentence is inappropriate in light of the nature of

the offense and his character. He argues that his criminal history is comprised

primarily of property and drug offenses, that he admitted to having attention

deficit disorder, bipolar disorder, and substance abuse issues relating to heroin,

methamphetamine and other narcotics, that the burglarized house was

essentially vacant, and that, with his non-violent character and the present case

being inextricably linked to his mental health and chemical dependence issues,

the sentence imposed is inappropriate due to its failure to address the

underlying issues. The State argues that his criminal history weighs heavy

against his character, that he had seven prior felony convictions, and he has

been charged with four burglary and six theft offenses.

[13] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, [we find] that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” Under this rule, the burden is on the defendant to persuade

the appellate court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-5.5 provides that a

person who commits a level 4 felony shall be imprisoned for a fixed term of

between two and twelve years with the advisory sentence being six years.

[14] Our review of the nature of the offense reveals that Lovely burglarized the

home in Gifford and, although Garner’s father had passed away approximately

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 9 of 11 six months earlier, Garner, Danielle, and Garner’s daughter visited the house

and slept there on occasion. Our review of the character of the offender reveals

that, according to the presentence investigation report (“PSI”), his criminal

history includes an adjudication as delinquent for trespass in 2006 and

convictions as an adult for two counts of theft and possession of a controlled

substance as class D felonies in 2009; aggravated unlawful use of weapon as a

felony in Illinois in 2010; failure to return to lawful detention and failure to

appear as class D felonies in 2011; possession of paraphernalia as a class A

misdemeanor in 2016; and possession of methamphetamine as a level 6 felony

in 2018. The PSI states that he has been previously charged with seven

misdemeanor and twenty-two felony offenses. It states that he has a history of

burglary and theft offenses including referrals as a juvenile as well as being

charged with four burglary offenses and six theft offenses as an adult. The PSI

further indicates he had two pending cases with active warrants. With respect

to mental health, the PSI states that he claims he was diagnosed with attention

deficit disorder, bipolar disorder, and depression and that he spent three to

seven days at Wabash Valley Hospital in 2014 for mental health issues, and it

states that he was diagnosed with impulse control disorder and intermittent

explosive disorder. With respect to substance abuse, it states that he claims to

have tried psychedelic mushrooms in 2015; first used marijuana at age sixteen

and last used it in February 2018; reported to have used Hydrocodone, heroin,

and methadone in the past; overdosed on heroin and methadone in February

2017 and was administered Narcan by police; first used methamphetamine in

2014 and claims he was under the influence of the drug during the commission

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 10 of 11 of the instant offense; and was court ordered to attend substance abuse

counseling in another cause but never completed the program. The PSI also

indicates that his overall risk assessment score places him in the high risk to

reoffend category. After due consideration, we conclude that he has not

sustained his burden of establishing that his sentence is inappropriate in light of

the nature of the offense and his character.

[15] For the foregoing reasons, we affirm his conviction and sentence for burglary as

a level 4 felony.

[16] Affirmed.

May, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2776 | May 8, 2019 Page 11 of 11