MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Apr 18 2019, 9:12 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Charles W. Lahey                                          Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Laura R. Anderson
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justice K. Kiama,                                         April 18, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1809
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable John M.
Appellee-Plaintiff.                                       Marnocha, Judge
                                                          Trial Court Cause No.
                                                          71D02-1712-F6-1133



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019                  Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Justice Kiama (Kiama), appeals following his conviction

      for residential entry as a Level 6 felony, Ind. Code § 35-43-2-1.5.


[2]   We affirm.


                                                    ISSUE
[3]   Kiama presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion when it refused his tendered instruction on criminal

      trespass as a lesser-included offense of residential entry.


                      FACTS AND PROCEDURAL HISTORY
[4]   Kiama and Moses Mutheme (Mutheme) were long-time friends who had lived

      together on and off over the course of their friendship. On December 5, 2017,

      Kiama and Mutheme were involved in a physical altercation at Mutheme’s

      house on Huey Street in South Bend, Indiana, during which Kiama was ejected

      from the premises. As a result of this altercation, Kiama required stitches to

      close a wound on his face.


[5]   On December 8, 2017, Kiama and a second man went to Mutheme’s home.

      Kiama walked onto the porch of Mutheme’s home while the second man

      waited at the gate. Kiama knocked on the door, but no one answered. Kiama

      was observed by a neighbor bending down to pick up an object from the porch

      with which he broke a large picture window located next to the front door.

      Kiama then crawled inside the window. The interior of the windows of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019   Page 2 of 7
      Mutheme’s home had been winterized with plastic coverings. As Kiama

      crawled through the window, he pierced the plastic covering to gain entry. A

      short time later, Kiama exited through Mutheme’s front door and walked to the

      street corner with the second man. The neighbor who had witnessed these

      events alerted the authorities, who arrived and arrested Kiama.


[6]   On December 11, 2017, the State filed an Information, charging Kiama with

      Level 6 felony residential entry. On April 30, 2018, the trial court held Kiama’s

      jury trial. Before the trial commenced Kiama tendered a jury instruction on

      criminal trespass as a lesser-included offense of residential entry. Kiama

      testified that he had knocked on the window of Mutheme’s home because he

      got no response after knocking on the door. According to Kiama, the window

      shattered when he rapped on it with his hand. Kiama did not note the

      condition of the window before he knocked on it. Kiama testified that he then

      became concerned for Mutheme’s welfare and crawled through the window to

      check on him. Kiama also testified that he spotted some of his own property in

      the home and took it with him when he left.


[7]   Kiama attempted to develop a theory that the glass of the picture window was

      weakened by bullet holes, making it susceptible to breaking when he simply

      rapped on the window. Mutheme’s landlord testified that there were bullet

      holes in other windows of the home but not in the plate glass window that

      Kiama broke. An officer testified that even if plate glass is hit by a bullet, it

      does not weaken the glass such that it would shatter if touched lightly in the

      manner that safety glass does. After the close of evidence, the trial court

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019   Page 3 of 7
      rejected Kiama’s proposed criminal trespass instruction, finding that the

      breaking and entering elements were not in dispute. The jury found Kiama

      guilty of residential entry. On May 18, 2018, the trial court sentenced Kiama to

      two years, all of which was credited to time served and the remainder

      suspended to probation.


[8]   Kiama now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   Kiama contends that the trial court “erred” in refusing to instruct the jury on

      criminal trespass as a factually-included, lesser offense of residential entry.

      (Appellant’s Br. p. 8). When a defendant requests a jury instruction on a lesser-

      included offense, the trial court must engage in the three-step analysis set forth

      in Wright v. State, 658 N.E.2d 563 (Ind. 1995). First, the trial court must

      determine if the allegedly lesser-included offense is inherently included by

      comparing the statutory elements of the offenses to determine if the proposed

      lesser-included offense may be proven by the same, or fewer, material elements

      of the originally-charged, greater offense. Id. at 566. If the offense is not

      inherently included in the charged crime, the trial court must then determine if

      the offense is factually included by comparing the statutory elements of the

      proposed lesser-included offense and the charging instrument to determine if

      the “charging instrument alleges that the means used to commit the crime

      charged include all of the elements of the alleged lesser[-]included offense.” Id.

      at 567. If the allegedly lesser-included offense is either inherently or factually

      included in the greater offense, the trial court goes on to consider if
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019   Page 4 of 7
               there is a serious evidentiary dispute about the element or
               elements distinguishing the greater from the lesser offense and if,
               in view of this dispute, a jury could conclude that the lesser
               offense was committed but not the greater . . . .


       Id.


[10]   When determining if a serious evidentiary dispute exists, the trial court

       examines the evidence presented by both parties regarding the element which

       distinguishes the greater offense from the lesser offense. Young v. State, 699

       N.E.2d 252, 255 (Ind. 1998). “This involves evaluating the ‘weight and

       credibility of [the] evidence,’ and then determining the ‘seriousness of any

       resulting dispute.’” Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (quoting

       Fish v. State, 710 N.E.2d 183, 185 (Ind. 1999)). We review a trial court’s

       determination that no serious evidentiary dispute exists for an abuse of

       discretion. Id. We accord “considerable deference” to the trial court’s

       determination, viewing the evidence in a light most favorable to it, and

       determine whether the trial court’s decision can be justified in light of the

       evidence and circumstances of the case. Id. (quoting Fish, 710 N.E.2d at 185).


[11]   Here, the parties correctly agree that criminal trespass was not an inherently-

       included offense. See Higgins v. State, 783 N.E.2d 1180, 1187-88 (Ind. Ct. App.

       2003) (concluding that criminal trespass must by proven by elements not found

       in the offense of residential entry), trans. denied. However, the State charged

       Kiama with residential entry by alleging that he “did knowingly break and enter

       the dwelling of [] [Mutheme].” (Appellant’s App. Vol. II, p. 101). Criminal


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019   Page 5 of 7
       trespass is committed when a person, not having a contractual interest in the

       property, knowingly or intentionally enters the dwelling of another without

       consent. I.C. § 35-43-2-2(b)(5)(B). As charged in this case, the means alleged to

       accomplish the residential entry comprised all of the elements of criminal

       trespass, making criminal trespass a factually-included lesser offense. Wright,

       658 N.E.2d at 567; see also Higgins, 783 N.E.2d at 1188-89 (holding that criminal

       trespass was a lesser-included offense where residential entry information

       alleged that defendant did knowingly break and enter a dwelling). Because

       criminal trespass was a factually-included lesser offense of residential entry as

       charged in this case, we must determine if a serious evidentiary dispute existed

       as to the element that Kiama argues distinguished the residential entry and

       criminal trespass offenses, namely, the element of knowingly breaking and

       entering.


[12]   Here, Kiama does not dispute that he broke the plate glass window or that he

       entered Mutheme’s home. Rather, he contends that a serious evidentiary

       dispute exited regarding his intent in that he argues that he accidentally broke

       the window, and, thus, did not do so knowingly, as charged in the Information.

       A person acts “‘knowingly’ if, when he engages in the conduct, he is aware of a

       high probability that he is doing so.” I.C. § 35-41-2-2(b). The evidence most

       favorable to the trial court’s determination was that Kiama picked up an object

       from the front porch which he used to break the picture window. From this

       evidence, the trial court reasonably concluded that Kiama was aware of a high

       probability that he was breaking the window.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019   Page 6 of 7
[13]   Although Kiama argued that the glass of the window was weakened by holes

       such that it shattered when he simply knocked on the glass to alert Mutheme of

       his presence, there was no credible evidence in the record that there were holes

       in the plate glass window. Even if there had been, there was other evidence

       that a hole would have weakened the plate glass so that it was susceptible to

       shattering. Kiama’s claim of accidental breakage was further belied by the fact

       that he had a previous physical altercation with Mutheme and, after breaking

       the window, he entered and removed his own property. In addition, Kiama

       broke through the plastic winterizing sheet behind the plate glass window as he

       crawled through the window, a breaking which he does not even attempt to

       argue on appeal was accidental. The trial court’s determination that no serious

       evidentiary dispute existed was justified by the evidence, as viewed in a light

       most favorable to that determination. See Leonard, 80 N.E.3d at 885. The trial

       court did not abuse its discretion when it refused to give Kiama’s proposed

       criminal trespass instruction. Id.


                                             CONCLUSION
[14]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it refused to give a jury instruction on criminal trespass as a

       factually-included, lesser offense of residential entry.


[15]   Affirmed.


[16]   Bailey, J. and Pyle, J. concur



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019   Page 7 of 7
