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The defendant’s two Class B felony Burglary convictions for breaking into [an old] farmhouse [under renovation and not yet occupied] required the jury to find that the “building or structure” broken into was a “dwelling.” [Footnote omitted.] At trial, the parties argued extensively about how the jury instructions should define a dwelling. … The State’s proposed instruction also included th[e] statutory definition, but added a sentence based on a separate decision of the Court of Appeals discussing sufficiency of the evidence: “Any such place where a person keeps personal items with the intent to reside at some future time is considered a dwelling.” Accord White v. State[,] 846 N.E.2d 1026, 1031 (Ind. Ct. App. 2006) (finding that sufficient evidence qualified a house as a dwelling when the victim was moving in and intended to take up permanent residence “in the near future”). The final instruction given the jury read:
For the purposes of the burglary [statute], a dwelling is defined as a building, structure, or other enclosed space, permanent or temporary, movable 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.
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… By emphasizing a set of facts that would satisfy the statutory definition of a dwelling, this language restricted the jury’s discretion in applying the statutory definition in light of all the admitted evidence about the farmhouse. This also misled the jury by encouraging it to single out certain facts while ignoring others that it may and should consider. [Citation omitted.] Under our Constitution, “it [is] the province of the jury to determine the weight to be given . . . each item placed in evidence.” [Citation omitted.] Because the last sentence of the instruction “invite[d the jury] to violate its obligation to consider all the evidence,” the instruction invaded the province of the jury in violation of [Art. 1, § 19 of] the Indiana Constitution. Ludy [v. State], 784 N.E.2d [459,] 462 [(Ind. 2003)].
… For this reason, we have long held that the “mere fact that certain language or expression [is] used in the opinions of this Court to reach its final conclusion does not make it proper language for instructions to a jury.” Ludy, 784 N.E.2d at 462 (alteration in original). [Footnote omitted.] Appellate review of the sufficiency of the evidence, as in White, will “rarely, if ever,” be an appropriate basis for a jury instruction, because the determination is fundamentally different. [Citation omitted; footnote omitted.] … While the instruction accurately reflected the holding in White, that case addressed an appellate legal issue—the sufficiency [of] the evidence—and not the facts of this case, which are reserved for the jury. White, 846 N.E.2d at 1030-31.6 White does not justify the instruction.
The addition of the last sentence to the challenged final instruction was misleading and invaded the province of the jury and was therefore erroneous. … Under the Burglary statute at the time of the offenses, Burglary was a Class C felony, but was enhanced to a Class B felony if the building or structure broken into was a dwelling. Because the erroneous language only related to the dwelling element, we instruct the trial court to modify the two Class B felony Burglary convictions from Class B felonies to Class C felonies and to resentence the defendant accordingly. …
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Rucker and David, JJ., concur.
Massa, J., dissents with separate opinion in which Rush, C.J., joins.
In crafting a proper jury instruction for the term “dwelling,” the trial court here was placed in a difficult position: either to rely exclusively on the text of the statute, or to further inform deliberations by incorporating the holding of White v. State, which unambiguously found that where a person maintained personal belongings in a house, and intended to take up residency in that house in the near future, it qualified as a “dwelling” for purposes of a burglary conviction, because any other result would “defy logic.” 846 N.E.2d 1026, 1031 (Ind. Ct. App. 2006). The majority finds that it was error for the trial court to incorporate the holding of White, because that panel considered a challenge to the sufficiency of the evidence supporting conviction, rather than the adequacy of a jury instruction.
I would not parse that difference quite so finely. In White, our Court of Appeals, in no uncertain terms, identified a set of circumstances where a “dwelling” would exist, even though that set of circumstances was not identified within the statutory definition. The trial court thus made the judgment call that White constituted an addition to the law in this area, and instructed the jury accordingly; I see no compelling reason to … reduce the level of burglary conviction here because of the trial court’s instruction that, per White, this set of circumstances, if found, “is considered a dwelling” rather than merely “could be” so considered. I would thus find no reversible instructional error.
Moreover, nor would I reverse on sufficiency grounds as the Court of Appeals did below. The General Assembly has long provided gradations of burglary, with home invasions punished more severely than break-ins of other buildings, such as empty businesses after hours, for a number of reasons easily imagined (including the risk of violence when a burglar surprises a homeowner). [Citation omitted.] This risk that someone might be there justifies a more serious charge, even if the risk is low in a particular situation. Indeed, you can live primarily at your home in the city, and if someone breaks into your empty vacation lake cottage in the dead of winter, it is still a residential burglary, as it is possible someone might be residing or lodging there. The same possibility certainly existed at the … farm house prior to the completion of all renovations. It is not that complicated. Juries are perfectly capable of discerning a dwelling from a doctor’s office, and they did so in this case, with guidance from the trial court that was not so inappropriate as to merit reversal by this Court.
I respectfully dissent.
Rush, C.J., concurs.