Kirsch, J.
The difference between Class B and Class C felony burglary is the type of building that is entered, i.e., burglary is enhanced if it takes place in a “dwelling.” Ind. Code § 35-43-2-1. Due to the importance of this distinction, both parties proposed jury instructions on the definition of “dwelling.” Keller proposed the following instruction, which tracked the statutory definition found in Indiana Code section 35-31.5-2-107: “‘Dwelling’ means a building, structure or other enclosed space, permanent or temporary, moveable or fixed, that is a person’s home or place of lodging.” Appellant’s App. at 568. The State offered the following proposed instruction, which added the italicized language:
For purposes of the burglary statute, a dwelling is defined as a building, structure, or other enclosed space, permanent or temporary, moveable or fixed, that is a person’s home or place of lodging. Any such place where a person keeps personal items with the intent to reside at some future time is considered a dwelling.
Id. at 544. The State cited White v. State, 846 N.E.2d 1026, 1031 (Ind. Ct. App. 2006), trans. denied, as the source of the additional language. The trial court reviewed White and modified the instruction to one that neither party offered. Final Instruction Number 17 read:
For purposes of the burglary statute, a dwelling is defined as a building, structure, or other enclosed space, permanent or temporary, moveable or fixed, that is a person’s home or place of lodging. Any such place where a person keeps personal items with the intent to reside in the near future is considered a dwelling.
Appellant’s App. at 596.
In White, the victim, House, bought a residence in August 2003. One month later, House was in the process of remodeling. While House was not yet living at the home, he had moved furniture, clothes, beds, couches, refrigerator freezers, a television set, a radio, tools, and a washer and dryer into the house. White, 846 N.E.2d at 1031. House also kept his dog outside and visited several times a day. On September 15, 2003, White broke into House’s home and stole a radio and a television. White was convicted of Class B felony burglary.
On appeal, White argued that the evidence was insufficient to sustain his burglary conviction because the State failed to prove beyond a reasonable doubt that the building was a dwelling. In finding that there was sufficient evidence to sustain a conviction for Class B felony burglary, the White court reasoned:
In the instant case, the record clearly supports that House purchased the property for use as a permanent residence. At trial, House testified he was in the process of remodeling the house and spent time at the house several times a day. House had moved furniture, clothes, beds, couches, refrigerator freezers, a television set, a radio, tools, and a washer and dryer into the house. In a similar case, Byers v. State, 521 N.E.2d 318, 319 (Ind. 1988), the victims were in the process of moving out when their home was burglarized. The defendant argued because they did not intend to sleep at that location the night of the break-in nor did they intend to sleep there for the week remaining on their lease, it was not a dwelling. The Byers court noted, however, that because the victims intended to retain their right of dominion and return to the premises it should be considered a dwelling. Although, in the instant case the evidence established that House was in the process of moving into the house, the difference between moving out and moving in is too tenuous with regard to the facts at issue to make such a distinction. As a result, it would defy logic to classify House’s house as anything other than a dwelling for the purposes of the . . . burglary statutes. While it is uncertain when House and his family were to take up permanent residency in the house, it is clear that they intended to do so in the near future. Therefore, we find that the state proved beyond a reasonable doubt that the house was a dwelling.
White, 846 N.E.2d at 1031 (emphasis added) (citations omitted).
Under the unusual facts of this case, we need not address whether the trial court abused its discretion. Assuming without deciding that the jury was properly instructed that a dwelling includes any such place “where a person keeps personal items with the intent to reside in the near future,” we find insufficient evidence to support the jury’s determination that the farmhouse was a dwelling for purposes of a Class B felony burglary conviction.
Hardwick’s great-grandparents died in the late 1990s and, thereafter, 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. Some food was kept in the freezer of the farmhouse and most of the family’s belongings were also stored in the farmhouse. Hardwick received his mail at the farmhouse and went by daily to feed livestock.
Even so, 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. Hardwick did not even start the remodeling project until the spring of 2013 and planned to do it alone. The project required Hardwick to tear out walls, install insulation, put up dry wall, paint, install new plumbing, redo part of the electrical system, redo the kitchen cabinetry, put in new light fixtures, and install a new tub, toilet, and vanity in the bathroom. Hardwick worked on the renovations about four or five hours a night. At that time he was also working at a factory job about six days a week. 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.
Indiana courts have held
burglary, like arson, to be an offense against the habitation. This is reflected in the burglary statute itself, which provides for greater penalties the closer the offense comes to endangering another’s life or well-being. In determining what constitutes a dwelling, Watt v. State, 446 N.E.2d 644, 645 (Ind. Ct. App. 1983), purports that the Indiana courts have given dwelling its plain and usual meaning. “The operative word defining ‘dwelling’ is a ‘home’—a settled residence house for a family and their personal possessions.”
Hayden, 19 N.E.3d at 837 (quoting White, 846 N.E.2d at 1031) (citations omitted). During the February 2014 trial—more than eight months after the June 4 burglary—Hardwick testified that he still lived with his relatives. Based on this evidence, we cannot say that the State proved that Hardwick intended to move into the farmhouse in the near future.
To convict Keller of Class B felony burglary, the State had to prove that he broke and entered a building or structure that was a dwelling, with intent to commit a felony or theft therein. For Class C felony burglary, the State would have to prove that Keller broke and entered any building or structure, with the intent to commit a felony or theft therein. Ind. Code § 35-43-2-1. A crime is a lesser included offense of another if it is impossible to commit the greater offense without first having committed the lesser one. Bedgood v. State, 477 N.E.2d 869, 872 (Ind. 1985). Class C felony burglary is a lesser-included offense of Class B felony burglary. Keller’s convictions for two counts of Class B felony burglary reveal that the jury believed that Keller was the person who broke into the farmhouse with the intent to steal Keller’s property. Here, while finding that there was insufficient evidence to prove that Keller broke into a dwelling, there was more than sufficient evidence to convict Keller of the lesser-included offenses of Class C felony burglary on June 2, 2013 and again on June 4, 2013. We remand to the trial court with instructions to reduce Keller’s convictions under Counts I and IV from Class B felony burglary to Class C felony burglary and resentence accordingly. Additionally, we instruct the trial court to resentence Keller’s enhancement for being a habitual offender to reflect that Count I is a conviction for Class C felony burglary.
Friedlander, J., and Crone, J., concur.