Opinion
24A-CR-641
10-31-2024
Michael Steven Lucero, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Yvette M. LaPlante Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vanderburgh Circuit Court The Honorable David D. Kiely, Judge The Honorable Ryan C. Reed, Magistrate Trial Court Cause No. 82C01-2307-F4-4577
ATTORNEY FOR APPELLANT Yvette M. LaPlante Evansville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Michael Lucero, Jr., appeals his conviction for burglary of a dwelling, a Level 4 felony, claiming that he is entitled to a reversal because the jury was erroneously instructed that a "dwelling," as defined by the burglary statute,includes a "building owned by a decedent's estate." Appellant's Brief at 8. For that same reason, Lucero maintains that the evidence was insufficient to support his conviction.
[¶2] We affirm.
Facts and Procedural History
[¶3] Gene and Terence Newcom grew up in a three-bedroom ranch home in Evansville. Their parents purchased the residence in 1949, and other than the time that Gene served in the armed forces, he lived there until he died on June 1, 2023. Gene's wife, Betty, predeceased him, thus leaving Terence as Gene's only heir and personal representative of his estate.
[¶4] Terence and his wife, Grace (collectively, the Newcoms), traveled from their home in Missouri on June 1, to attend Gene's funeral, clean the house, and inventory the property. Following the funeral on June 10, 2023, the Newcoms installed security cameras at the house and linked them to a Blink application on Grace's phone.
[¶5] While in Evansville, the Newcoms worked at the residence approximately three days a week between June 1, 2023, and July 25, 2023. The utilities remained connected and the house was completely furnished. The Newcoms occasionally traveled back to Missouri to spend a few days there before returning to Evansville. Although the Newcoms stayed at a Hampton Inn (the Hotel) while in Evansville, they did their laundry and cooked at the residence.
[¶6] At approximately 4:15 a.m. on July 25, 2023, when the Newcoms were at the Hotel, Grace received an alert on her cellphone, indicating motion inside the house. Grace observed on a live feed video that an individual-subsequently identified as Lucero-was running through the house wearing a black ski mask, an orange shirt, and carrying a backpack. Grace immediately called 911 and reported a burglary at the residence.
[¶7] When Evansville Police Department Officers arrived, Detective Korey Winn pointed his flashlight at the back door of the residence. Lucero immediately ran out of the house wearing the mask, the orange shirt, and carrying a backpack. The police officers apprehended Lucero and when they removed the ski mask, they saw that he was wearing women's jewelry including earrings, a necklace, and some rings. Lucero admitted that he had entered the residence through a basement window. When the officers searched the backpack, they observed numerous pieces of jewelry inside, including a box bearing Betty's name. The officers also discovered a flashlight and a Chinese puzzle box lying on the ground next to Lucero that had belonged to Gene.
[¶8] The State charged Lucero with Count I, burglary, a Level 4 felony, Count II, resisting law enforcement, a Class A misdemeanor, and Count III, criminal mischief, a Class B misdemeanor. Following a jury trial on January 25, 2024, Lucero was found guilty as charged and was subsequently sentenced to eight years on Count I, one year on Count II, and 180 days on Count III, to be served concurrently at the Indiana Department of Correction.
[¶9] Lucero now appeals.
Discussion and Decision
I. Jury instructions
[¶10] Lucero argues that his burglary conviction must be reversed because the jury was improperly instructed. Specifically, Lucero claims that the instructions relating to the burglary charge erroneously expanded the definition of a "dwelling" under the burglary statute to include buildings owned by a decedent's estate.
[¶11] Following the presentation of evidence at trial, the trial court instructed the jury as follows:
Instruction No. 2
The Statute defining the offense of Burglary, a Level 4 Felony, which was in force at the time of the offense charged in Count 1, reads in part as follows: A person who breaks and enters a building or structure of another person, with the intent to commit a felony or theft in it, commits Burglary, a Level 5 felony. The offense is a Level 4 Felony if the building or structure is a dwelling.
Before you may convict the Defendant in [sic] Count 1, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant;
2. Knowingly or intentionally;
3. Broke and entered;
4. The dwelling of the Estate of Gene Newcom and/or Terence Newcom;
5. With the intent to commit a theft in it, by taking items from within the property.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Burglary, a Level 4 Felony, as charged in Count 1.
Instruction No. 2C
The Statute defining the offense of Burglary, a Level 5 Felony, which was in force at the time of the offense charged in Count 1, reads in part as follows: A person who breaks and enters a building or structure of another person, with the intent to commit a felony or theft in it, commits Burglary, a Level 5 felony.
Before you may convict the Defendant in [sic] Count 1, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant;
2. Knowingly or intentionally;
3. Broke and entered;
4. The building or structure of the Estate of Gene Newcom and/or Terence Newcom;
5. With the intent to commit a theft in it, by taking items from within the property.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Burglary, a Level 5 Felony, as charged in Count 1.Appellant's Appendix Vol. II at 86, 89 (emphases added). These instructions are based on the language of our burglary statute, Ind. Code § 35-43-2-1. The trial court further instructed the jury that the term "dwelling," as defined under Ind. Code § 35-31.5-2-107, is a "building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person's home or place of lodging." Id. at 93.
[¶12] We initially observe that Lucero did not object to the above instructions. Thus, the issue is waived on appeal. See, e.g., Hall v. State, 937 N.E.2d 911, 913 (Ind.Ct.App. 2010) (observing that the failure to object to jury instructions at trial results in waiver of the issue on appeal). To avoid waiver, Lucero maintains that the instructions amounted to fundamental error. The fundamental error standard has been described as a "daunting" one that applies only in egregious circumstances. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Absher v. State, 866 N.E.2d 350, 355 (Ind.Ct.App. 2007). The error must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process. Id. When reviewing a jury instruction for fundamental error, "we need not reverse unless the instructions as a whole . . . misled the jury on the applicable law." Batchelor v. State, 119 N.E.3d 550, 559 (Ind. 2019). Also, when an appellant claims that the instruction was an incorrect statement of the law, we apply a de novo standard of review. Id. at 554.
[¶13] In this case, Lucero maintains that because Gene was deceased, he could not be convicted of burglarizing a dwelling as defined in I.C. § 35-31.5-2-107. Notwithstanding this contention, a panel of this court has determined that it is reasonable to construe a dwelling "to include buildings and structures that have been occupied in the immediate past by a recently deceased resident." Howell v. State, 53 N.E.3d 546, 550 (Ind.Ct.App. 2016), trans. denied. The Howell Court observed that
Even after the sole occupant of a house dies, it is common and expected for people still to be at the house. (Internal citation omitted). The time immediately following a person's death is often hectic and chaotic for the deceased's family, friends and loved ones and is a time of gathering; therefore, the use of deceased's home as a place of temporary residence . . . is common and is to be expected. (Internal citation omitted).Id. at 550. It was also reasoned that "to hold otherwise would reduce the criminality of a burglar who, having knowledge of an occupant's or homeowner's death, would seek to exploit the situation, when the potential harm to persons-such as grieving friends and relatives-would still be present." Id. at 551 (quoting People v. Barney, 99 N.Y.2d 367, 756 N.Y.S.2d 132, 786 N.E.2d 31, 25 (2003)).
[¶14] Here, the evidence established that Gene owned the residence and lived there until he died on June 1, 2023. Terence was Gene's sole heir and personal representative of the estate who, along with his wife, immediately drove from their home in Missouri to attend Gene's funeral, clean the residence, and inventory the property. When the burglary occurred on July 25, 2023, the Newcoms had been dividing their time between Missouri and Evansville, working periodically at the residence for nearly six weeks. During their stay, the utilities were functional, and the house remained furnished. While the Newcoms spent their nights at the Hotel while they were in Evansville, they cooked their meals at the residence and did their laundry there.
[¶15] The jury instructions at issue simply identified the current owner of the property, i.e., the estate. And given the circumstances here, we cannot say that the trial court's final instructions to the jury improperly expanded the definition of a dwelling under I.C. § 35-31.5-2-107, to include Gene's previous residence that is presently owned by his estate. See Howell, 53 N.E.3d at 550. As a result, Lucero's claim of fundamental error fails.
II. Sufficiency of the Evidence
[¶16] Lucero claims that the evidence was insufficient to support his conviction for Level 4 felony burglary. When reviewing a challenge to the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we view the evidence in a light most favorable to the judgment, examining whether a reasonable factfinder could have found the defendant guilty beyond a reasonable doubt. Id. So long as there is substantial evidence of probative value supporting each element of the offense, we will affirm. Lehman v. State, 203 N.E.3d 1097, 1104 (Ind.Ct.App. 2023), trans. denied.
[¶17] Lucero's sole argument on appeal is that his conviction must be reversed because he did not enter a "dwelling" as defined in I.C. § 35-31.5-2-107. As discussed above, however, a dwelling within the meaning of the burglary statute includes "buildings and structures that have been occupied in the immediate past by a recently deceased resident." Howell, 53 N.E.3d at 550. And "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 the probable occupants." Id. To be sure, "even after the sole occupant of the residence dies, it is common and expected for people still to be [there]." Id.
[¶18] Here, the residence at issue had been in the Newcom family for 74 years, and Gene-the sole owner of the residence at the time of his death-had lived there for most of his life. And as discussed above, Terence-the personal representative of Gene's estate and the sole heir-drove to Evansville from Missouri to attend the funeral and perform his duties as personal representative. Terence acquired a possessory interest in the house immediately upon Gene's death, and he retained that interest by installing a security system and returning to the house on a regular basis to clean and inventory its contents. The Newcoms were at the house at least three days per week, every week, after Terence inherited the residence. In light of these circumstances, we reject Lucero's claim that the residence lost its status as a dwelling when Gene died. See Howell, 53 N.E.3d at 550-51. We therefore conclude that the evidence was sufficient to support Lucero's conviction for burglary, a Level 4 felony.
[¶19] Judgment affirmed.
Bailey, J. and Mathias, J., concur.