Pursuant to Ind.Appellate Rule 65(D),

                                                             FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
                                                           Dec 14 2012, 8:47 am
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:

MICHELLE F. KRAUS                                GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DEWAYNE WALKER,                                  )
                                                 )
        Appellant,                               )
                                                 )
               vs.                               )    No. 02A03-1204-CR-199
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee.                                )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable John F. Surbeck, Jr., Judge
                              Cause No. 02D06-1104-FB-79


                                      December 14, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Dewayne Walker appeals his conviction for Class B felony burglary. We affirm.

                                            Issue

       Walker raises one issue, which we restate as whether the trial court properly

denied his request to instruct the jury on the lesser-included offense of residential entry.

                                            Facts

       Kenneth Watkins lived at a residence in Fort Wayne, and Ray Saylor was his

neighbor. On April 12, 2011, Watkins and his daughter went to play bingo in the

evening. While Saylor was smoking a cigarette outside, he saw a man in Watkins’s front

yard. Saylor turned to go inside of his house and heard two booming noises. He then

saw that Watkins’s front door had been knocked down. Saylor called 911 and stayed on

the phone until the police arrived. Saylor saw a man walk past the front door several

times, and he did not see anyone else enter or leave Watkins’s house.

       Officer Steven Ealing of the Fort Wayne Police Department received a dispatch of

a burglary in progress at Watkins’s residence and arrived at the residence a couple of

minutes later. When Officer Ealing arrived, he saw Walker in the living room. When

Officer Ealing announced himself, Walker ran toward the back of the house, and Officer

Ealing heard glass breaking. At the same time, Officer Dale Llewellyn was positioned at

the back of the house and saw that a window on the back of the house was being broken.

Officer Llewellyn ordered the person in the house to come to the back door, but he heard

footsteps running away from the back door toward the front of the house. When the man

did not return to Officer Ealing’s position at the front door, the officers announced that

                                              2
the police canine would be sent in, and Walker came out. Walker had Watkins’s remote

controls in his pockets.

       When Watkins arrived home, he found that his front door had been “busted down”

and a rear window was broken. Tr. p. at 32. His possessions were knocked down,

thrown around, and scattered, and his bedroom was “completely tore apart.” Id. at 33.

His television, Wii gaming system, some other electronics, and frozen food had been

moved and were stacked by the front door. An antique gun that he kept under his

mattress was found in the middle of the hallway.

       The State charged Walker with Class B felony burglary and Class A misdemeanor

resisting law enforcement. The State later alleged that Walker was an habitual offender.

At Walker’s jury trial, he proposed a jury instruction on the lesser-included offense of

residential entry. The trial court found no serious evidentiary dispute regarding Walker’s

intent and refused the proposed instruction. The jury found Walker guilty as charged.

Walker now appeals his burglary conviction.

                                         Analysis

       Walker argues that the trial court erred by denying his request for an instruction on

the lesser-included offense of residential entry. “The purpose of an instruction is to

inform the jury of the law applicable to the facts without misleading the jury and to

enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.”

Taylor v. State, 943 N.E.2d 414, 416-17 (Ind. Ct. App. 2011) (citing Overstreet v. State,

783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied), trans. denied. When a defendant

requests a lesser-included offense instruction, the trial court must apply a three-part

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analysis: (1) determine whether the lesser-included offense is inherently included in the

crime charged; if it is not, (2) determine whether the lesser-included offense is factually

included in the crime charged; and, if either inherently included or factually included, (3)

determine whether a serious evidentiary dispute exists whereby the jury could conclude

that the lesser offense was committed but not the greater. Id. at 417 (citing Hauk v. State,

729 N.E.2d 994, 998 (Ind. 2000). The trial court should grant the defendant’s request for

a lesser-included offense instruction if it answers the third inquiry affirmatively. Id.

       The offense of residential entry is inherently included in the offense of burglary.

Id. at 418. Walker proposed a jury instruction regarding residential entry as a lesser-

included offense of burglary, but the trial court rejected the instruction. The trial court

found no serious evidentiary dispute whereby a jury could have concluded that residential

entry was committed but not burglary. Our review here is limited to whether the trial

court properly determined that there was no serious evidentiary dispute whereby the jury

could have concluded that the lesser offense was committed but not the greater. “In

deference to trial courts’ proximity to the evidence, we review a finding as to the

existence or lack of a serious evidentiary dispute for an abuse of discretion.” Id. at 417

(citing McEwen v. State, 695 N.E.2d 79, 84 (Ind. 1998)).

       The offense of residential entry “contains all of the elements of burglary as a class

B felony except that it does not require proof of intent to commit a felony in the dwelling

that is entered.”    Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000)

(comparing Ind. Code § 35-43-2-1 with Ind. Code § 35-43-2-1.5). The State alleged that

Walker “did knowingly or intentionally break and enter the dwelling of another person, to

                                              4
wit: Kenneth Watkins, with intent to commit a felony therein, to wit: theft . . . .” App. p.

10. Walker argues that there is an evidentiary dispute regarding his intent “for being

inside the house.” Appellant’s Br. p. 6. However, the evidence demonstrated that

Walker was found inside Watkins’s residence, and the house had been ransacked.

Watkins’s television, Wii gaming console, other electronics, and frozen food had been

moved and were found stacked next to the front door. Watkins’s gun had been removed

from under his mattress and placed on the floor in the hallway, and Watkins’s remote

controls were found in Walker’s pockets. Given these facts, we agree with the trial court

that there is no serious evidentiary dispute regarding Walker’s intent to commit theft.

The trial court properly denied Walker’s request for a jury instruction on the lesser-

included offense of residential entry.

                                         Conclusion

       The trial court properly rejected Walker’s request for an instruction on the lesser-

included offense of residential entry. We affirm.

       Affirmed.

BAKER, J., and RILEY, J., concur.




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