                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                            Jan 24 2012, 8:49 am
court except for the purpose of
establishing the defense of res judicata,
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:

ANTHONY S. CHURCHWARD                           GREGORY F. ZOELLER
Deputy Public Defender                          Attorney General of Indiana
Fort Wayne, Indiana
                                                KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CORDELL G. GAGE,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 02A03-1103-CR-110
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D04-1008-FC-187


                                     JANUARY 24, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                                STATEMENT OF THE CASE

          Defendant-Appellant Cordell G. Gage appeals his conviction of burglary, a Class

C felony, Ind. Code § 35-43-2-1 (1999), and the jury’s determination that he is a habitual

offender, Ind. Code § 35-50-2-8 (2005). He also appeals his sentence. We affirm.

                                           ISSUES

          Gage raises two issues, which we restate as:

          I.    Whether the trial court erred by rejecting Gage’s requested jury instruction
                on criminal trespass as a lesser included offense of burglary.

          II.   Whether Gage’s sentence is inappropriate in light of the nature of the
                offense and the character of the offender.

                          FACTS AND PROCEDURAL HISTORY

          Brent Cannon’s girlfriend lived next to a house owned by Dorothy Logan. Logan

had moved into an apartment and had not lived in the house for approximately a year

prior to the events of this case. Cannon checked on Logan’s house two or three times a

week. On the morning of August 16, 2010, Cannon was at his girlfriend’s residence. As

he was taking out the trash, Cannon heard noises coming from Logan’s house. Cannon

walked around to the other side of Logan’s house, where he continued to hear noises

coming from the house and saw that one of the house’s windows had been broken. The

window had not been broken the last time Cannon checked the house. Cannon called the

police.

          The police arrived three to four minutes later. The officers heard a loud banging

coming from Logan’s house and established a perimeter. All of the doors were locked.

Next, an officer arrived with a police dog. The officer knocked on the front door,

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identified himself as a police officer, and shouted that anyone inside should come out or

they would send in the dog. A person later identified as Gage subsequently surrendered.

The officers entered the house and discovered that Gage had torn open several walls to

remove copper pipes. He had also knocked over and broken a toilet.

       The State charged Gage with burglary and alleged that he was a habitual offender.

At trial, Gage requested a jury instruction on the offense of criminal trespass as a lesser

included offense of burglary. The trial court denied Gage’s request. The jury determined

that Gage was guilty of burglary and was a habitual offender. Subsequently, the trial

court sentenced Gage to six years on the burglary conviction, enhanced by twelve years

due to the habitual offender determination, for a total sentence of eighteen years. This

appeal followed.

                             DISCUSSION AND DECISION

                          I. PROPOSED JURY INSTRUCTION

       In deciding whether to give a requested instruction on a lesser included offense,

the trial court is required to determine whether the offense is either inherently or factually

included in the charged offense. Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004).

If an offense is inherently or factually included in the charged offense, then the trial court

must next determine whether there is a serious evidentiary dispute regarding any element

that distinguishes the greater offense from the lesser offense. Id. If the final step is

reached and answered affirmatively, then the requested instruction for a lesser included

offense should be given. Culver v. State, 727 N.E.2d 1062, 1070 (Ind. 2000).



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       In this case, the trial court determined that the offense of criminal trespass is not

inherently or factually included in the offense of burglary. In addition, the trial court

ruled that there was no serious evidentiary dispute regarding any element that

distinguishes burglary from criminal trespass.

       To determine whether a lesser included offense is inherently included in a charged

crime, a court compares the relevant statutes. Hauk v. State, 729 N.E.2d 994, 998 (Ind.

2000). The requested lesser included offense is inherently included in the charged crime

if (a) the parties could establish commission of the claimed lesser included offense by

proof of the same material elements or less than all of the material elements of the

charged crime, or (b) the only feature distinguishing the claimed lesser included offense

from the charged crime is that a lesser culpability is required to establish commission of

the lesser included offense. Id.

       Turning to the elements of the offenses at issue in this case, a defendant commits

the crime of burglary as a Class C felony when he or she (1) breaks and enters into (2) the

building or structure (3) of another person (4) with the intent to commit a felony in it.

Ind. Code § 35-43-2-1. By contrast, according to the statutory definition of criminal

trespass most relevant to this case, a person commits criminal trespass when he or she (1)

knowingly or intentionally (2) enters the dwelling of another person (3) without the

person’s consent (4) while lacking a contractual interest in the property. Ind. Code § 35-

43-2-2(a)(5) (2009). The offense of criminal trespass requires proof that the defendant

lacked a contractual interest in the property, but Class C felony burglary does not.

Furthermore, criminal trespass requires proof that a person entered a “dwelling,” while

                                             4
Class C felony burglary requires proof of entry of a “building or structure.” Thus, one

cannot establish the commission of criminal trespass by proof of the material elements, or

less than all of the material elements, of Class C felony burglary. In addition, due to

differences in the material elements of the offenses, we cannot conclude that the only

feature distinguishing criminal trespass from burglary is the level of culpability. We

conclude that criminal trespass is not inherently included in the offense of burglary.

       Next, we must consider whether criminal trespass is factually included in the

offense of burglary. An offense is factually included in the crime charged when the

charging instrument alleges that the means used to commit the crime charged include all

of the elements of the alleged lesser included offense. Wright v. State, 658 N.E.2d 563,

567 (Ind. 1995).

       In the current case, the charging information states, in relevant part, that Gage “did

knowingly or intentionally break and enter the building or structure of another person, to

wit: Dorothy Logan; with the intent to commit a felony therein, to wit: theft.”

Appellant’s App. p. 7. Comparing the information with the elements of criminal trespass,

the information does not allege that the property in question was a dwelling, but rather

simply states that Gage entered a “building or structure.” Id. The facts, as stated in the

charging instrument, do not include all of the elements of criminal trespass. Cf. J.M. v.

State, 727 N.E.2d 703, 705 (Ind. 2000) (determining that the offense of criminal trespass

was a lesser included offense of Class B felony burglary where the charging information

alleged that the defendant entered the victim’s “residence”).          Thus, the offense of

criminal trespass is not factually included in the charge of burglary as alleged in this case.

                                              5
       Gage cites Byers v. State, 521 N.E.2d 318 (Ind. 1988), to support his claim that

criminal trespass is factually included in his charge of burglary, but that case is not

controlling. In Byers, our Supreme Court was called upon to review the sufficiency of

the evidence supporting a burglary conviction. By contrast, in the current case we are

considering whether the trial court should have given a jury instruction on a lesser

included offense. Furthermore, in Byers our Supreme Court determined that the house in

question could be considered a dwelling because the victims retained “their right of

dominion” and intended to return to the premises, even though they were in the process

of moving out. Id. at 319. In the current case, Logan had moved out of the house over a

year prior to Gage’s crime. Although Logan checked on the house from time to time, the

record fails to demonstrate that she intended to live in it again.

       We have determined that the offense of criminal trespass is not inherently or

factually included in the burglary charge. Consequently, the trial court did not err by

rejecting Gage’s requested jury instruction. See Wright, 658 N.E.2d at 567 (“If the

alleged lesser included offense is neither inherently nor factually included in the crime

charged, then the trial court should not give a requested instruction on the alleged lesser

included offense.”).

                        II. APPROPRIATENESS OF SENTENCE

       Gage’s sentencing challenge is governed by Indiana Appellate Rule 7(B), which

provides, in relevant part, “The Court may revise a sentence authorized by statute if, after

due consideration of the trial court’s decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” To

                                              6
assess the appropriateness of the sentence, we look first to the statutory range established

for the class of the offense.

       Here, the advisory sentence for burglary as a Class C felony is four years, the

shortest sentence is two years, and the longest sentence is eight years. Ind. Code § 35-50-

2-6 (2005). Furthermore, for a defendant found to be a habitual offender, the trial court

may enhance the defendant’s sentence by a number of years that is no more than three

times the advisory sentence for the underlying offense. Ind. Code § 35-50-2-8(h). Gage

received a sentence of six years, plus a twelve-year enhancement due to his habitual

offender determination.

       Next, we look to the nature of the offense and the character of the offender. The

nature of the offense is found in the details and circumstances of the commission of the

offense and the defendant’s participation. See Treadway v. State, 924 N.E.2d 621, 642

(Ind. 2010) (noting that the defendant’s crimes were “horrific and brutal”). The character

of the offender is found in what we learn of the offender’s life and conduct. See Lindsey

v. State, 916 N.E.2d 230, 241-42 (Ind. Ct. App. 2009) (reviewing the defendant’s

criminal history, probation violations, and history of misconduct while incarcerated),

trans. denied. In making this determination, we may look to any factors appearing in the

record. Calvert v. State, 930 N.E.2d 633, 643 (Ind. Ct. App. 2010). Furthermore, we

give due consideration to the trial court’s decision and its more direct knowledge of the

offense and the offender. See Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009) (stating,

“As in all sentencing, . . . we give considerable deference to the ruling of the trial court”).

A defendant must persuade the appellate court that the sentence of the trial court meets

                                              7
the inappropriateness standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006).

         Our review here of the nature of the burglary shows that Gage broke into a house

and tore open the walls to extract copper pipes. He also knocked over and broke a toilet.

Thus, Gage inflicted extensive damage upon Logan’s building, which demonstrates a

selfish attitude and complete disregard for others’ property.

         Our review here of the character of the offender shows that Gage, who was fifty-

five years old at the time of his trial, has an extensive criminal record. As an adult, he

has accrued three misdemeanor convictions and six felony convictions.               His felony

convictions include several convictions of theft and robbery. Furthermore, Gage has

twice violated the terms of his parole and has twice violated the terms of his probation.

Gage’s criminal history and failure to respond positively to probation and parole

demonstrate that he is unwilling to conform to the law and lead a law-abiding life. Given

the nature of Gage’s crime and his criminal history, he has failed to persuade us that his

enhanced sentence is inappropriate.

                                       CONCLUSION

         For the reasons stated above, we affirm the judgment of the trial court.

         Affirmed.

KIRSCH, J., and BARNES, J., concur.




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