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
                                                              Mar 20 2013, 9:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                                   GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                      Attorney General of Indiana
Lafayette, Indiana
                                                JAMES B. MARTIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RICKY EUGENE ARION,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 08A04-1203-CR-115
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE CARROLL SUPERIOR COURT
                          The Honorable Kurtis G. Fouts, Judge
                             Cause No. 08D01-1108-FD-67


                                      March 20, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Ricky Arion (Arion), appeals his conviction for Count I,

attempted residential entry, Ind. Code §§ 35-43-2-1.5; -41-1-5; and his adjudication as an

habitual offender, I.C. § 35-50-2-8.

       We affirm.

                                         ISSUES

       Arion raises two issues, which we restate as follows:

       (1) Whether the trial court abused its discretion by declining to issue Arion’s

          proposed jury instruction regarding the presumption of innocence; and

       (2) Whether the trial court abused its discretion by declining to issue a jury

          instruction on a lesser included offense of attempted criminal trespass.

                        FACTS AND PROCEDURAL HISTORY

        On August 17, 2011, in the early morning hours, a man walked onto the back

deck of Mary DeFord’s (DeFord) home in Delphi, Indiana. DeFord resided there with

her poodle, Lilly. The back door of the home led out to the back deck and was locked.

Lilly “bolted to the door with a growling bark” and DeFord peered out of a shade but did

not see anyone. (Transcript Vol. I p. 31). Later that same day, DeFord checked her “trail

cam,” an infrared camera with a motion detector that she had set up on the deck. (Tr.

Vol. I p. 27). Pictures from the camera depicted a man who was unknown to DeFord on

her deck without her permission. The man had a fanny pack and a flashlight. One photo

                                            2
depicted him “on the deck reaching for the doorknob.” (Tr. Vol. II p. 19). DeFord called

the police and showed them the trail cam pictures.

       On August 19, 2011, again in the early morning hours, the same man returned to

DeFord’s back deck. That night, DeFord had left the outside lights on. Later that

morning, DeFord checked her trail cam and saw pictures of the man on her back deck.

DeFord went outside to investigate and a patio table had been moved from the deck to the

yard. A green five gallon bucket, which had previously been on the deck, was found

underneath one of the other windows of the house. DeFord gave the photos to the police.

       Police investigated and examined the photos from the trail cam.       The infrared

photos illuminated a large, distinctive tattoo on the man’s left bicep. The images were

disseminated among the police. A police officer who knew Arion recognized the tattoo

as similar to one Arion had. Arion came to the police station to have his upper body and

tattoos photographed. Arion told police that the tattoo was “one of a kind, that no one

else had had that tattoo.” (Tr. Vol. I p. 72).

       Police later obtained a warrant and searched Arion’s truck and his residence,

where he lived with his father. They seized items from Arion’s truck, including a black,

form-fitting long-sleeved shirt and tan colored work gloves.    From Arion’s garage, the

police seized a flashlight with a black lanyard and which used triple A batteries; a black

fanny pack with two triple A batteries; two pairs of shoes with some mud and grass on

the bottoms; gray sweat pants soiled with dirt; a gray form fitting shirt; gray and maroon



                                                 3
colored work gloves, and a gray fabric shirt made into a skull cap.            Arion was

subsequently arrested.

       On August 22, 2011, the State filed an Information charging Arion with Count I,

attempted residential entry, a Class D felony, I.C. §§ 35-43-2-1.5; -41-1-5. On August

30, 2011, the Stated filed a motion to amend the Information to allege that Arion was an

habitual offender, I.C. § 35-50-2-8, which the trial court granted on September 19, 2011.

       On January 10 and 11, 2012, a bifurcated jury trial was held. Arion’s girlfriend

testified that one pair of shoes found at Arion’s residence were his. Arion’s father

testified that although he and Arion lived together, Arion had access to the items that the

police seized from the garage. The State also elicited testimony from Dustin Inman

(Inman), a fellow inmate while Arion awaited trial. Arion told Inman that he had found

out that DeFord was an elderly woman who lived alone in a secluded house in the

country. Arion had been informed that DeFord was an easy target, and that her house

was easy to break into. Arion said that he had been to DeFord’s a “few different times,”

moved things around, looked in windows, and stood on “different things.” (Tr. Vol. I p.

92). He admitted to Inman that pictures from the trail cam were of him and that he had

disguised his appearance by tying his hair back in some manner. Arion told Inman that

the police had a picture showing his tattoo, but did not understand how his tattoo

appeared despite wearing a long-sleeved shirt.

       The State also produced testimony from a police officer on how the trail cam

images could depict Arion’s tattoo under his shirt. Police purchased a black, form-fitting

                                            4
long-sleeved shirt similar to the one seized from Arion’s residence and depicted in the

trail cam photos. The police simulated dark conditions and used DeFord’s trail cam to

take pictures of a police officer who wore the long-sleeved shirt and had three tattoos on

his back and arms. Shot from a similar distance from the trail cam, two of the police

officer’s tattoos were visible in the trail cam photos.

       During trial, Arion submitted proposed preliminary and final jury instructions,

including the following Preliminary Instruction No. 2:

       If the evidence in this case is susceptible of two constructions or
       interpretations, each of whom [sic] appears to you to be reasonable, and one
       of which points to the guilt of the accused and the other to his innocence, it
       is your duty, under the law, to adopt that interpretation which is consistent
       with the accused’s innocence and reject that which points to his guilt.

(Appellant’s App. p. 41). The trial court refused the instruction because it was already

covered by its instructions, which were taken from the Indiana Pattern Jury Instructions.

Arion also tendered a proposed final jury instruction requesting instruction on criminal

trespass as a lesser included offense. The trial court refused to issue this instruction

because the “evidence presented would [not] lead to a criminal trespass charge.” (Tr.

Vol. II p. 119).

       The jury found Arion guilty as charged and adjudicated him to be an habitual

offender.   On February 23, 2012, the trial court sentenced Arion to three years’

incarceration at the Department of Correction on Count I, enhanced by four and one-half

years for the habitual offender adjudication.

       Arion now appeals. Additional facts will be provided as necessary.

                                                5
                             DISCUSSION AND DECISION

                                    I. Standard of Review

       Arion first contends the trial court abused its discretion by refusing his tendered

instruction.   Instructing the jury is a matter within the discretion of the trial court.

VanWanzeele v. State, 910 N.E.2d 240, 246 (Ind. Ct. App. 2009), trans. denied. As such,

we will reverse a trial court’s decision regarding jury instructions only for an abuse of

discretion. Id. A trial court erroneously refuses to give a tendered instruction, or part of

a tendered instruction, if: (1) the instruction correctly sets out the law; (2) evidence

supports the giving of the instruction; and (3) the substance of the tendered instruction is

not covered by the other instructions given. Overstreet v. State, 783 N.E.2d 1140, 1164

(Ind. 2003), cert. denied, 540 U.S. 1150 (2004).

                               II. Presumption of Innocence

       Arion contends that the trial court committed reversible error by declining to give

his Preliminary Instruction No. 2.       He asserts that this instruction concerned the

presumption of innocence and the duty of the jury to reconcile the evidence consistent

with the defendant’s innocence, correctly stated the law and was not covered by any of

the instructions of the trial court. In Robey v. State, 454 N.E.2d 1221, 1222 (Ind. 1983),

the supreme court held that where the defendant tenders a jury instruction that advises

“the jury that the presumption of innocence prevails until the close of the trial, and that it

is the duty of the jury to reconcile the evidence upon the theory of the defendant’s

innocence if they could do so,” failure to give the instruction is reversible error.

                                              6
Recently, this court in Lee v. State, 964 N.E.2d 859, 865 (Ind. Ct. App. 2012), trans.

denied, concluded that the trial court’s rejection of an instruction virtually identical to

that submitted by Arion constituted an abuse of discretion. Relying upon Lee, Arion

argues that the trial court here committed reversible error by rejecting his instruction.

       In Lee, the trial court rejected Lee’s instruction and found adequate its instructions

on 1) keeping an open mind and refraining from conclusions until the case was submitted

for deliberation; and 2) the State’s burden of proof to overcome the presumption of

innocence.    Id. at 863-64.    On appeal, this court concluded that the trial court’s

“instructions did not adequately instruct the jury on the presumption of innocence.” Id. at

865. Specifically, the court found that no “instruction was given to the jury adequately

explaining the jury’s duty to reconcile the evidence upon the theory of the defendant’s

innocence if they could do so.” Id. However, the court noted that the State did not raise

the issue of harmless error. Id. at 864. Here, the State has done so.

       Arion’s claim is therefore subject to the harmless error analysis.                   See

VanWanzeele, 910 N.E.2d at 247. Before a defendant is entitled to reversal based on a

perceived instructional error, he must affirmatively show that the error prejudiced his

substantial rights. See id. “Errors in the giving or refusing of instructions are harmless

where a conviction is clearly sustained by the evidence and the jury could not properly

have found otherwise.” Lee, 964 N.E.2d at 862-63.

       Although no one witnessed Arion at DeFord’s home on August 18 and 19, 2011,

the State offered evidence from DeFord’s trail cam. It is undisputed that these photos

                                              7
captured a man on DeFord’s back porch without her consent. Arion argues that the

photographs are unclear. However, the photos clearly depict the man and illuminate a

uniquely shaped tattoo on the man’s bicep. Arion told police that the tattoo was one of a

kind and photographs of Arion’s tattoo were submitted into evidence. Police officers

conducted an experiment demonstrating how a tattoo might be illuminated under similar

conditions with infrared light, which the trail cam used.

       Arion states that it was not obvious what the man was doing on DeFord’s porch.

Yet, one photograph depicts the man reaching for the back door. Arion protests that no

door knob is visible in the photographs. A police officer testified to the location of both

the back door to DeFord’s home and the doorknob. He stated that the man’s hands were

reaching toward the same location. Finally, Inman testified that Arion told him that he

was depicted in the trail cam photos, that DeFord’s home “was an easy[,] easy target,”

and that he had been to DeFord’s a “few different times.” (Tr. Vol. I p. 92-3).

       Taken together, the foregoing considerable evidence of guilt is such that even had

the rejected instruction been read, the outcome of trial would not have changed. See Dill

v. State, 741 N.E.2d 1230, 1234 (Ind. 2001). Thus, even assuming for the sake of

argument that the trial court erred in refusing Arion’s tendered instruction on the

presumption of innocence, the error was harmless.

                                  III. Criminal Trespass

       Arion argues that the trial court abused its discretion by refusing to instruct the

jury on criminal trespass as a lesser included offense of residential entry. When called

                                             8
upon by a party to instruct a jury on a lesser included offense of the crime charged, a trial

court must perform a three-step analysis. Higgins v. State, 783 N.E.2d 1180, 1187 (Ind.

Ct. App. 2003), trans. denied. First, it must compare the statute defining the crime

charged with the statute defining the alleged lesser included offense to determine if the

alleged lesser included offense is inherently included in the crime charged. Id. Second,

if a trial court determines that an alleged lesser included offense is not inherently

included in the crime charged under step one, then it must determine if the alleged lesser

included offense is factually included in the crime charged. Id. If the alleged lesser

included offense is neither inherently nor factually included in the crime charged, the trial

court should not give an instruction on the alleged lesser included offense. Id. Third, if a

trial court has determined that an alleged lesser included offense is either inherently or

factually included in the crime charged, it must look at the evidence presented in the case

by both parties to determine if 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. It is

reversible error for a trial court not to give an instruction, when requested, on the

inherently or factually included lesser offense if there is such an evidentiary dispute. Id.

However, if the evidence does not so support the giving of a requested instruction on an

inherently or factually included lesser offense, then a trial court should not give the

requested instruction. Id.



                                             9
       Criminal trespass is not an inherently lesser included offense of residential entry.

Id. Thus, under the facts of this case, we consider whether criminal trespass was a

factually included lesser offense.    An offense is factually included 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. Wright v. State, 658 N.E.2d 563 (Ind.

1995). Examining the crimes of burglary and criminal trespass, the supreme court has

held that alleging that a defendant “did knowingly or intentionally ‘break and enter’ the

residence of another,” sufficiently alleged facts constituting criminal trespass, thus

making criminal trespass a factually included lesser offense of residential entry. J.M. v.

State, 727 N.E.2d 703, 705 (Ind. 2000).          Here, the State alleged that Arion did

“knowingly or intentionally with the intent to commit the crime of residential entry,

attempt to commit the crime of residential entry and did engage in conduct constituting a

substantial step toward commission of the crime, to-wit, did travel to the residence of

[DeFord] and attempt to enter that residence.” (Appellant’s App. p. 10). Because the

Information alleged an attempt to commit residential entry, it follows that the State has

alleged that the means used to commit the crime charged included all the elements of

criminal trespass. See Young v. State, 846 N.E.2d 1060, 1062-63 (Ind. Ct. App. 2006).

We therefore conclude that criminal trespass is a factually included offense of the charge

of residential entry.

       Turning to step three, we consider whether there is a serious evidentiary dispute

regarding the distinction between residential entry and criminal trespass.      A serious

                                            10
evidentiary dispute exists where the jury can conclude that the lesser offense was

committed and the greater offense was not. Griffin v. State, 963 N.E.2d 685, 691 (Ind.

Ct. App. 2012).    In this regard, Arion argues that there is a serious evidentiary dispute

“as to whether the State proved an attempt to break and enter DeFord’s house.”

(Appellant’s Br. p. 22). The State, however, contends that no serious evidentiary dispute

existed since “the evidence overwhelmingly established that [Arion] attempted to break

and enter DeFord’s home.” (Appellee’s Br. p. 19).

       Here, Arion presented no testimony to contradict DeFord’s testimony that she

locked her doors, nor disputed that an offense had occurred. A police officer testified

that a trail cam photo depicted Arion standing in front of DeFord’s back door and putting

his hand where the door knob was located.          Although Arion relies on his closing

argument that the picture “does not show that he has broken into or is going into the

structure” or that “there is no door […] in the picture,” we do not find that this creates a

serious evidentiary dispute. (Tr. Vol. II p. 146). Rather, the bulk of record demonstrates

that the dispute in this case focused on whether Arion’s tattoos were similar that of the

perpetrator. Without a serious evidentiary dispute on the element of breaking, the trial

court did not abuse its discretion by refusing to give Arion’s proposed criminal trespass

instruction. See VanWanzeele, 910 N.E.2d at 245.

                                     CONCLUSION

       Based on the foregoing, we conclude that (1) the trial court’s decision to decline

Arion’s proposed jury instruction on the presumption of innocence amounts to harmless

                                            11
error and (2) the trial court did not abuse its discretion by declining to issue an instruction

on criminal trespass.

       Affirmed.

BARNES, J. concurs

BAKER, J. concurs in part and concurs in result in part with separate opinion




                                              12
                              IN THE
                    COURT OF APPEALS OF INDIANA


RICKY EUGENE ARION,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 08A04-1203-CR-115
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )



BAKER, Judge, concurring in part and concurring in result in part.

       I fully concur with the majority’s determination that the trial court properly

refused to give Arion’s proposed jury instruction regarding his presumption of innocence.

However, while I also agree that Arion was not entitled to an instruction on attempted

criminal trespass, I do so for reasons other than those advanced by the majority.




                                            13
       I cannot agree with the majority’s pronouncement that criminal trespass was a

factually-included lesser offense of attempted residential entry in these circumstances.

Slip op. at 10. In accordance with Indiana Code section 35-43-2-2(a)(5), an individual

commits criminal trespass when he or she “knowingly or intentionally enters the dwelling

of another person without the person’s consent.” (Emphasis added). Such was not the

case here because, as the majority notes, Arion was charged with and convicted of

attempted residential entry. Slip op. at 4-5 (emphasis added). And the evidence did not

establish that Arion actually entered DeFord’s residence. Therefore, it cannot be said that

the offense of trespass is a factually-included lesser offense under Indiana Code section

35-43-2-2(a)(5). See J.M. v. State, 727 N.E.2d 703, 705 (Ind. 2000) (observing that a

charge that the defendant did knowingly or intentionally “break and enter” the residence

of another person sufficiently alleged facts constituting criminal trespass).


       I would also note that Indiana Code section 35-43-2-2(a)(1) cannot be relied upon

as support for giving Arion’s proposed instruction because the crime of trespass under

this subsection is committed when a person “knowingly or intentionally enters the real

property of another person after having been denied entry by the other person. . . .” Here,

there is no evidence that DeFord had previously denied Arion entry to her real property.

Thus, the trial court also properly denied Arion’s proposed instruction on this basis.


       For these reasons, I believe that the trial court properly exercised its discretion in

refusing to give Arion’s proffered instruction on criminal trespass.


                                             14
