Riley, J.
Appellant-Defendant, Reese Keith (Keith), appeals his convictions and sentences for burglary of a dwelling resulting in serious bodily injury, a Level 1 felony, Ind. Code §§ 35-43-2-1; 35-43-2-1(4); two Counts of robbery while armed with a deadly weapon, Level 3 felonies, I.C. § 35-42-5-1(2) (2014); two Counts of criminal confinement while armed with a deadly weapon, Level 3 felonies, I.C. §§ 35-42-3-3(a); 35-42-3-3(b)(2)(A); auto theft, a Level 6 felony, I.C. § 35-43-4-2.5(b)(1) (2014); and his adjudication as an habitual offender, I.C. 35-50-2-8(b).
We affirm in part, reverse in part, and remand with instructions.
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On May 14, 2017, following an automobile accident that occurred when he was intoxicated on methamphetamine, Keith was arrested and admitted for treatment at Johnson Memorial Hospital, in Franklin, Indiana, before being escorted to jail. …
Sometime after 3:20 a.m. on May 15, 2017, Keith disconnected himself from his heart monitor and IV and left the hospital without being formally discharged by his physician. Keith entered the garage of the nearby home of ninety-year old Clayton Dixon and eighty-eight-year-old Ella Dixon (the Dixons). Keith initially slept in the Dixons’ garage but later broke into the Dixons’ home through a basement window so that he could steal clothing in order to change out of the hospital gown he was still wearing.
Shortly after Keith broke into their basement, the Dixons left home to do errands. …The Dixons surprised Keith by returning from their errands quickly. Ella entered the back door of the home into the kitchen and was met by Keith, who was wearing a ski mask and pointing one of the rifles he had found in the home at her. Ella attempted to call 9-1-1 on her cell phone, but Keith grabbed the cell phone from her. Clayton then entered through the back door and attempted to subdue Keith, only ceasing his efforts upon Ella’s pleas to Clayton to cooperate to avoid injury.
Keith used duct tape to bind Ella’s and Clayton’s hands. … Keith took Clayton’s wallet from him and removed the cash it contained. Keith also duct taped Ella’s arms and legs to her walker. … After holding the Dixons in their home for approximately forty minutes, Keith drove away in their automobile, taking three guns and cash with him. Clayton accessed his pocketknife and used it to cut himself and Ella free. …
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On October 6, 2017, and May 24, 2018, the trial court convened Keith’s bench trial. Ella and the Dixons’ two sons testified regarding the changes in Clayton’s behavior after the offenses. Clayton had been diagnosed with Alzheimer’s dementia in August 2016. His symptoms of memory loss and cognitive disfunction had been stabilized with medication, and the Dixons had enjoyed an active life together. Immediately after the offenses, Clayton became more sedentary and withdrawn. Clayton’s mood then turned sullen and aggressive toward Ella. … Clayton was taken to a psychiatric hospital where he was treated for a month, and he was subsequently transferred to an assisted living facility because he had lost the ability to care for himself physically. Clayton was not expected to ever return home or to live independently again.
In furtherance of its theory that Keith had caused serious bodily injury in the form of “permanent or protracted loss or impairment of the function of Clayton Dixon’s mind” as charged in the burglary Information, the State also presented the testimony of a neurologist, Dr. Dawn Zapinski (Dr. Zapinski), who had treated Clayton before and after the offenses. …
According to Dr. Zapinski, physical or mental stress can cause cognitive decline because stress hormones cause the production of proteins that cause irreversible cell death in the brain, a part of the body which she agreed could be characterized as “an organ.” It was Dr. Zapinski’s opinion that, as a result of the offenses, Clayton had experienced an “acute insult to the brain” which had caused permanent loss of some of his brain function. …
On May 31, 2018, the trial court found Keith guilty as charged. After the State presented evidence that Clayton had five prior unrelated felony convictions, the trial court adjudicated Keith to be an habitual offender. On July 11, 2018, the trial court conducted Keith’s sentencing hearing. … The trial court found that the aggravating circumstances outweighed the mitigating circumstance and sentenced Keith as follows:
Count I Burglary Level 1 35 years
Count II Robbery Level 3 12 years
Count III Confinement Level 3 12 years
Count IV Robbery Level 3 12 years
Count V Confinement Level 3 12 years
Count VI Auto Theft Level 3 2 years
The trial court ordered Keith to serve his sentences for the burglary and the Count II robbery consecutively. The trial court ordered Keith to serve all of his other sentences concurrently, for a base sentence of forty-seven years. The trial court enhanced Keith’s sentence by fifteen years for being an habitual offender, which it ordered was “consecutive” to the burglary and robbery sentences, for an aggregate sentence of sixty-two years.
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The State charged Keith with Level 1 felony burglary of a dwelling resulting in serious bodily injury. The serious bodily injury alleged by the State was the “permanent or protracted loss or impairment of the function of Clayton Dixon’s mind.” One of Keith’s challenges to the evidence supporting his conviction for burglary is that the State did not charge him with inflicting an injury consistent with the statutory definition of serious bodily injury because it charged him with permanent or protracted loss or impairment of function “not to a body part or organ of Clayton, but to his mind.” …
For our purposes, “serious bodily injury” is defined by statute as “bodily injury . . . that causes permanent or protracted loss or impairment of the function of a bodily member or organ[.]” I.C. § 35-31.5-2-292. The term “bodily injury” is further defined in relevant part as “any impairment of physical condition.” I.C. § 35-31.5-2-29. Thus, a serious bodily injury must be a bodily injury, which is an impairment of a physical condition. … Applying the plain meanings of the terms, we conclude that an injury to the mind, as alleged here by the State, does not qualify as a bodily injury. The State did not allege that Keith had damaged Clayton’s brain but, rather, that he had damaged Clayton’s mind. … Although the mind has a physical location in the brain, its functioning is primarily mental, not physical. Thus, any impairment to its functioning is not primarily the impairment of a physical condition. To hold otherwise would be to eviscerate the meaning of the term “physical condition” and would conceivably allow the State to charge a defendant with an offense resulting in serious bodily injury whenever it negatively impacted the victim’s mental state.
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Affirmed in part, reversed in part, and remanded with instructions.
Bailey, J. and Pyle, J. concur