Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                           FILED
                                                                 Mar 13 2012, 9:32 am
collateral estoppel, or the law of the
case.
                                                                         CLERK
                                                                       of the supreme court,
                                                                       court of appeals and
                                                                              tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                               GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                RYAN D. JOHANNINGSMEIER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                      COURT OF APPEALS OF INDIANA

JOSHUA LOVE,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A02-1107-CR-629
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Kurt M. Eisgruber, Judge
                     The Honorable Anne M. Flannelly, Commissioner
                           Cause No. 49F09-1011-FD-85977


                                      March 13, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge


                              STATEMENT OF THE CASE

       Joshua Love appeals his conviction of escape as a class D felony and his

adjudication as a habitual offender.

       We affirm.

                                           ISSUE

                       Whether the trial court erred in instructing the jury.

                                           FACTS

       In April 2010, Love entered into a Marion County Community Corrections

Electronic Monitoring Contract (“the Contract”) for home detention to serve an executed

sentence for a class C robbery conviction. The Contract provided in relevant part as

follows:

       1. YOU SHALL be confined inside (within the walls of your residence:
          front door to back) your home at all times . . . .

                                       *     *       *

       2. . . . If you leave your residence without permission Home Detention . . .
          you will be considered an Absconder. A Violation with a warrant
          request will be requested. Further, the Prosecutor’s Office may file a
          charge of Escape/FD against you.

(State’s Exhibit 3).

       In November 2010, Indianapolis Metropolitan Police Department Officer George

June drove by Love’s house and noticed him standing outside of his house at the curb


                                             2
talking with four or five men. The officer radioed for assistance and returned to Love’s

house with two other officers. The officers saw Love sitting in the driver’s side of a

vehicle parked in his yard. When Officer June approached the vehicle, he immediately

smelled marijuana. A bag containing 11.32 grams of marijuana was also in plain view.

       Love was convicted by a jury of escape as a class D felony and possession of

marijuana as a class A misdemeanor. He was also adjudicated to be a habitual offender.

Love appeals his conviction of escape as well as the habitual offender adjudication.

                                        DECISION

       Love’s sole argument is that the trial court erred in instructing the jury.

Specifically, he contends that the trial court erred in failing to instruct the jury on the

lesser included offense of unauthorized absence from home detention, a class A

misdemeanor.

       In resolving this issue, we initially observe that the trial court has broad discretion

in the manner of instructing the jury and we review the trial court’s decision only for an

abuse of discretion. Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). If the

trial court fails to cover some pertinent point in instructing the jury, it is the obligation

and the duty of the party desiring to have that point covered in the instruction to tender

his own instruction on the same. Nolan v. State, 863 N.E.2d 398, 404 (Ind. Ct. App.

2007), trans. denied. Moreover, in criminal cases, a party must tender to the trial court in

writing any instructions the party believes are applicable to the case. Ind. Crim. Rules

8(A) and (D). Failure to tender such an instruction waives the right to object to that point

                                              3
not being covered. Nolan, 863 N.E.2d at 404. Love failed to tender such an instruction

to the trial court, and he has therefore waived review of this issue.

       Waiver notwithstanding, we find no error. Kilgore v. State, 922 N.E.2d 114, 119

(Ind. Ct. App. 2010), trans. denied, is dispositive. There, Kilgore was placed on home

detention to be monitored by Tippecanoe County Community Corrections (“TCCC”) for

sentencing purposes. He failed to report to the TCCC officer in charge of his case, made

an unauthorized trip from Lafayette to Muncie, and was subsequently convicted of escape

and adjudicated to be a habitual offender.

       On appeal, Kilgore argued that the trial court erred in failing to give his tendered

jury instruction on unauthorized absence from home detention as a lesser included

offense of escape. First this Court determined that unauthorized absence from home

detention is not a lesser included offense of escape because the two statutes contain

materially different elements. Id. at 119.

       This Court further stated that the offense of unauthorized absence from home

detention applies only in cases where the defendant has been placed on home detention as

a condition of probation. Id. (citing Brown v. State, 894 N.E.2d 598, 600-01 (Ind. Ct.

App. 2008)). Defendants serving executed sentences on home detention are not entitled

to an instruction on that offense. Id. Because Kilgore was serving an executed sentence

on home detention when he violated the detention order by leaving his residence, we

concluded that he was not entitled to an instruction on unauthorized absence from home

detention. Id.

                                              4
       Here, as in Kilgore, Love was serving an executed sentence on home detention

when he violated the Contract by leaving his house. He was therefore not entitled to an

instruction on unauthorized absence from home detention. See id. The trial court did not

err in failing to give such an instruction.

       Affirmed.

BAKER, J., and BAILEY, J., concur.




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