                                                               Feb 09 2015, 9:27 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                           Gregory F. Zoeller
Bargersville, Indiana                                     Attorney General of Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Shane L. Keller,                                         February 9, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         88A04-1404-CR-168
        v.                                               Appeal from the
                                                         Washington Superior Court
State of Indiana,
                                                         The Honorable Frank Newkirk, Jr.,
Appellee-Plaintiff.                                      Judge

                                                         Cause No. 88D01-1307-FB-489




Kirsch, Judge.




Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015              Page 1 of 26
[1]   Shane L. Keller was convicted following a jury trial of two counts of Class B

      felony burglary,1 one count of Class C felony burglary,2 three counts of Class D

      felony theft,3 and two counts of Class D felony receiving stolen property.4 The

      trial court sentenced Keller to maximum sentences on each of the eight

      convictions to run concurrently with one another, for an aggregate of twenty

      years executed. After Keller admitted to being a habitual offender, the trial

      court imposed a thirty-year enhancement to Count I, a Class B felony burglary

      conviction, for a total executed sentence of fifty years. Keller appeals his

      convictions and his sentence raising the following reordered and restated issues:

                 I. Whether the trial court abused its discretion when it admitted and
                 excluded certain evidence;


                 II. Whether the trial court abused its discretion in instructing the jury
                 regarding the definition of “dwelling” for the purpose of convicting
                 Keller of Class B felony burglary; and


                 III. Whether Keller’s convictions and sentences for theft and receiving
                 stolen property violate the prohibition against double jeopardy.5




      1
          See Ind. Code § 35-43-2-1(1).
      2
          See Ind. Code § 35-43-2-1.
      3
          See Ind. Code § 35-43-4-2(a).
      4
       See Ind. Code § 35-43-4-2(b). We note that, effective July 1, 2014, the statutes pertaining to burglary, theft,
      and receiving stolen property were amended. Keller committed his crimes prior to July 1, 2014; therefore, we
      use the statutes in effect at the time he committed the offenses.
      5
       Keller also contends that his fifty-year sentence is inappropriate in light of the nature of the offense and the
      character of the offender. Because we remand to the trial court for resentencing, we do not address this issue.




      Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015                          Page 2 of 26
[2]   We affirm in part, reverse in part, and remand for resentencing.


                                  Facts and Procedural History
[3]   Jeremy Hardwick’s great-grandparents lived in a farmhouse on property located

      in Washington County, Indiana; a barn, a garage, and an outbuilding were also

      located on the land. After Hardwick’s great-grandparents died in the late 1990s,

      the farmhouse remained vacant. In October 2012, Hardwick, his wife, and two

      children moved into Hardwick’s sister-in-law’s home, with the plan to remodel

      and then move into the farmhouse. No one slept at the farmhouse during the

      remodeling project; however, some food and most of the family’s belongings

      were stored in the farmhouse. Hardwick also received his mail at the

      farmhouse.


[4]   Hardwick described the farmhouse as being in “pretty rough” condition

      because it “[h]ad been sitting vacant for probably ten or twelve years.” Tr. at

      503. Photographs taken of the farmhouse around May 2013 revealed that most

      of the rooms were filled with boxes, bags, equipment, and assorted debris.

      Def.’s Ex. A. Hardwick began the remodeling project in the spring of 2013 and

      planned to do it alone. The project required Hardwick to do major renovations,

      and Hardwick worked on those renovations about four or five hours each night.

      At that time, he was also working at a factory job about six days a week, eight

      hours a day, and each day, he stopped at the farmhouse property to feed

      livestock.




      Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 3 of 26
[5]   On May 9, 2013, Hardwick stopped at the property after his factory shift. As he

      entered the barn, which had been closed but not locked, Hardwick noticed that

      several items had been moved from their normal place. When he inspected

      other buildings, he saw that the locked garage door had been pried open.

      Hardwick called the Washington County Sheriff’s Department (“Sheriff’s

      Department”), and Deputy Joseph Keltner responded. Further investigation

      revealed that Hardwick’s .22 caliber, semiautomatic rifle and shells had been

      stolen from his truck, which had been parked in the barn. Also missing from

      the barn were a socket set and some combination wrenches. A Stihl chainsaw

      and a Stihl weed eater were missing from the garage.


[6]   That same evening, realizing that other items of value were still on the property,

      Hardwick and his wife bought four infrared “game cameras” and installed them

      in the farmhouse and other main buildings on the farm. Tr. at 513. Each

      camera was motion activated and took black and white images, which were

      stored on a removable SD memory card (“SD card”). Id. at 652. Thereafter,

      Hardwick checked the game cameras daily.


[7]   On June 2, 2013, Hardwick and his wife arrived at the property and noticed

      that the glass to the back door of the farmhouse was shattered. Several items

      were missing from the farmhouse, including an air compressor, a Craftsman

      nail gun, three cans of Zinsser Bulls Eye 1-2-3 primer, a circular saw, twenty

      boxes of cherry laminate flooring, a spool of electrical wiring, a kitchen faucet,

      drywall tools, and various items of food.



      Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 4 of 26
[8]    Hardwick called the Sheriff’s Department, and when Deputy Keltner

       responded, they discovered that the farmhouse game camera had taken several

       images (“June 2 photographs”). Contained within the June 2 photographs were

       images of the male burglar’s profile (“State’s Exhibit 17”) and the distinctive

       logo on the t-shirt he wore (“State’s Exhibit 16”). Removing the SD card from

       the camera, Deputy Keltner and Hardwick viewed the June 2 photographs on

       Deputy Keltner’s laptop; neither immediately recognized the man pictured.

       After Deputy Keltner downloaded the June 2 photographs to his laptop, he

       returned the SD card to Hardwick, who stored it in a drawer. That evening,

       Hardwick installed a new SD card into the farmhouse game camera.


[9]    Two days later, on June 4, 2013, Hardwick arrived at the farm and noticed

       another door to the farmhouse was broken. Hardwick again called the Sheriff’s

       Department, and this time Sergeant Wayne Blevins responded. Inside the

       farmhouse, Sergeant Blevins found footprints that were imprinted with the Nike

       logo. Hardwick found that a stainless-steel sink and ammunition, among other

       things, were missing from the farmhouse. Sergeant Blevins viewed the pictures

       on the SD card (“June 4 photographs”) and, like Deputy Keltner, downloaded

       them to his laptop and returned the SD card to Hardwick.


[10]   As part of the investigation, Deputy Keltner showed a photograph of the

       burglar’s profile—introduced at trial as State’s Exhibit 17—to several Sheriff’s

       Department deputies, individually, to see if they could identify the suspect.

       Sergeant Blevins and Deputy James Strange, each of whom had known Keller

       for twenty years, identified the suspect as Keller. Tr. at 651, 653, 657-59.

       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 5 of 26
       Detective Brent Miller, who had known Keller for twenty-four years, was

       shown the photograph of the burglar’s profile as well as two enlarged and

       enhanced copies of that same photo. See State’s Exs. 17, 31, 34. Detective

       Miller also identified the suspect as Keller. Tr. at 740-41, 790-92.


[11]   Deputy Keltner obtained a warrant to search Keller’s residence. On July 11,

       2013, deputies executed that warrant and seized from Keller’s closet a t-shirt

       marked with the distinctive logo pictured in the June 2 photographs. Keller,

       who was home during the search, admitted that the t-shirt belonged to him.

       The officers also seized a can of the same primer that had been taken from the

       farmhouse and saw no sign that Keller was priming any walls. The officers did

       not find any other stolen items or Nike shoes. On July 12, 2013, the State

       charged Keller in connection with the June 2 burglary with one count of Class

       B felony burglary, one count of Class D felony theft, and one count of Class D

       felony receiving stolen property. The State also alleged that Keller was a

       habitual offender.


[12]   Prior to trial, Keller made several phone calls from jail, which were recorded.

       The State admitted and published each recording without objection. 6 On

       August 23, 2013, Keller called his father (“Father”) and instructed:

                You go over to my house and you go, you tell Michelle you want
                papers out of the car and make sure there is no fucking hat, gloves, no



       6
         While admitted at trial, these recordings are not contained in the record before us. Therefore, we rely on
       the transcription of these conversations.



       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015                         Page 6 of 26
               fucking paperwork in the glove box. Take all of that fucking shit with
               you. I need all that out of the car.


       Tr. at 725 (State’s Ex. 39). In the June 2 photographs, the burglar is wearing a

       hat and gloves. Id. at 722-23.


[13]   On September 6, 2013, while still in jail, Keller called James Cole, a neighbor

       who lived across the street from Keller, saying:

               Listen and listen good. Go to my house, go upstairs. Face your house
               and look. That’s all I’m saying, don’t say no more. Don’t repeat what
               I just said . . . . That’s all you got to do. I mean, about four or five up
               and face your house and look around. . . . And everything, like I said,
               I just kind of wanted to see if you’d take care of that one problem for
               me. As far as I know, all they got is two pictures on me and it’s from a
               trail camera. All I need for you . . . to do is that one thing and see
               what’s over there that you think you can sell. If there’s something you
               can sell let me know, write me a letter and tell me what you can get
               out of it, get me some money to get me through til the verdict. . . .
               But there’s five hundred things over there and I think you might be
               able to do something with them, if you’re not just destroy them . . . .
               You’ll be surprised, you’ll be like god damn. But you, I don’t think
               they got anymore, they ain’t got no more charges or nothing against
               me. Just that burglary over there.


       Tr. at 717-18 (State’s Ex. 37).


[14]   On October 9, 2013, Keller called Father and expressed frustration regarding

       Cole. In that recording, Keller told Father, “Jamie was supposed to have

       brought me money up here last month and I ain’t seen none of it, like usual.”

       Id. at 721 (State’s Ex. 38). Father responded, “[W]ell, he got aggravated what

       you said about him and he said . . . well he just dropped it. He said he should


       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015        Page 7 of 26
       have had them, that washing machine and dryer sold but he, you and him got

       into it over the phone and he just dropped it.” Id. at 722. Keller responded,

       “The reason, part of it, that I’m in here. Almost everything that was stolen on

       that list is sitting on his front fucking porch.” Id.


[15]   Keller made additional phone calls to Father admitting his responsibility. On

       September 24, 2013, Keller told Father, “I got myself into this fucking mess.”

       Id. at 736. On November 1, 2013, Keller again told Father, “But like I said I

       got myself into this mess. I’m going to have to get myself out of it you know.”

       Id. at 738. Finally, on November 3, 2013, Keller called Father to complain,

       “[T]hey’re wanting to give me more time than what Sterlin and time [sic] got

       for that shit they done, compared to this burglary case.” Id. at 739-40. Father

       responded, “Devon is looking pretty rough then too,” and Keller replied, “I

       know, he’s got his, he ain’t got no pictures or nothing on his.” Id. at 740.


[16]   Presumably based on these conversations, deputies searched Cole’s home on

       November 14, 2013, and recovered from his porch several of Hardwick’s stolen

       items, including the Stihl chainsaw, the Craftsman nail gun, and the stainless-

       steel sink, which had been stolen May 9, June 2, and June 4, 2013, respectively.

       Id. at 703-05. On November 25, 2013, the State also charged Keller for the

       May 9 and June 4, 2013 burglaries, with one count of Class B felony burglary,

       two counts of Class C felony burglary, three counts of Class D felony theft, and

       one count of Class D felony receiving stolen property.




       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 8 of 26
[17]   Keller’s trial commenced on February 18, 2014. Over Keller’s objection, the

       State admitted into evidence the June 2 photographs and the June 4

       photographs as State’s Exhibits 16 through18 and Exhibits 21 through 23,

       respectively. Again, over Keller’s objection, the State also admitted copies of

       those same photographs, which had been enlarged and enhanced by Indiana

       State Police Trooper Robert Neal, as State’s Exhibits 27 through 34. Also, over

       Keller’s objection, Sergeant Blevins, Deputy Strange, and Detective Miller

       testified at trial that they had previously identified Keller as being the person

       pictured in State’s Exhibit 17—the June 2 photograph depicting the burglar’s

       profile. Id. at 651, 658-59, 741. Detective Miller testified that the person

       pictured in the June 2 and June 4 photographs could not be Cole, who was

       shorter and heavier than the man pictured. Id. at 792-93.


[18]   The following was not admitted at trial. Keller asked out of the jury’s presence

       to be allowed to try on the t-shirt bearing the distinctive logo to show the jury

       how it fit. He also asked that he be able to show the jury his shoes. The trial

       court granted Keller’s request on the condition that if Keller did so, the State

       could cross-examine him, thereby opening the door to impeaching Keller’s

       credibility. Id. at 769. Keller chose not try on the t-shirt or show his shoes to

       the jury. Additionally, Keller’s request to introduce Sheriff’s Department

       booking photographs, to show the jury that other arrested individuals also

       matched Keller’s general description and body type, was also denied unless or

       until one or more of the photographs became relevant.




       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 9 of 26
[19]   Both parties proposed a jury instruction defining “dwelling” as it pertained to

       the burglary charge. The trial court gave the following as Final Instruction

       Number 17, over Keller’s objection that the last sentence of the instruction was

       overbroad:

               For purposes of the burglary statute, a dwelling is defined as a
               building, structure, or other enclosed space, permanent or temporary,
               moveable or fixed, that is a person’s home or place of lodging. Any
               such place where a person keeps personal items with the intent to
               reside in the near future is considered a dwelling.


       Appellant’s App. at 596 (emphasis added).


[20]   The jury found Keller guilty of two counts of Class B felony burglary (Counts I

       and IV), one count of Class C felony burglary (Count VI), three counts of Class

       D felony theft (Counts II, V, and VII), and two counts of Class D felony

       receiving stolen property (Counts III and X). Id. at 891-92. Keller was found

       not guilty of Counts VIII and IX, one count of Class C felony burglary and one

       count of Class D felony theft, respectively. Following his convictions, Keller

       admitted to being a habitual offender. On March 19, 2014, the trial court

       ordered Keller to serve the maximum sentence for each of his convictions in the

       Department of Correction, i.e., twenty years for each of Counts I and IV, eight

       years for Count VI, three years for each of Counts II, V, and VII, and three

       years for each of Counts III and X. These sentences were to be served

       concurrently with each other, with the habitual offender enhancement of thirty

       years added to Count I, for an aggregate sentence of fifty years executed. Keller

       now appeals his convictions and his sentence.

       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 10 of 26
                                       Discussion and Decision

                         I. Admission and Exclusion of Evidence
[21]   Keller contends that the trial court abused its discretion by admitting certain

       evidence and excluding other evidence. He contends that these evidentiary

       errors impacted his defense at trial that he was not the burglar pictured in the

       game camera photographs. The admission or exclusion of evidence is entrusted

       to the discretion of the trial court; we therefore review the trial court’s decision

       for an abuse of discretion. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App.

       2012). An abuse of discretion occurs when the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before it or it

       misinterprets the law. Id. In conducting our review, we consider the conflicting

       evidence most favorable to the trial court’s ruling and any uncontested evidence

       favorable to the defendant. Id.


                                          A. Admission of Evidence

[22]   Keller asserts that the trial court abused its discretion when it: (1) allowed

       testimony of the three deputies who identified Keller as the person pictured in

       State’s Exhibit 17; and (2) admitted State’s Exhibits 27 through 34, the copies of

       the June 2 photographs and the June 4 photographs that were enhanced and

       enlarged by Trooper Neal. We address each of these claims in turn.


[23]   Prior to trial, Keller filed a motion in limine, asking the court to exclude

       Deputy Strange’s and Sergeant Blevin’s lay witness testimony that Keller was



       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 11 of 26
       the person pictured in State’s Exhibit 17.7 Appellant’s App. at 399. At that time,

       Keller asserted that, because of the quality of the photograph, the only thing

       that could be determined was that the suspect was probably a man and probably

       Caucasian. Tr. at 241. Keller argued that the probative value of that testimony

       was substantially outweighed by its unfair prejudice.8 Appellant’s App. at 399.

       The trial court denied Keller’s motion, and the deputies testified at trial over

       Keller’s objection.


[24]   Both parties recognize that the trial court’s ruling was governed by Indiana

       Rule of Evidence 701, pertaining to opinion testimony by lay witnesses.

       Appellant’s Br. at 18, Appellee’s Br. at 24-25. Rule 701 provides, “If a witness is

       not testifying as an expert, testimony in the form of an opinion is limited to [an

       opinion] that is: (a) rationally based on the witness’s perception; and (b) helpful

       to a clear understanding of the witness’s testimony or to a determination of a

       fact in issue.” Citing to Groves v. State, 456 N.E.2d 720 (Ind. Ct. App. 1983)

       and Gibson v. State, 709 N.E.2d 11 (Ind. Ct. App. 1999), trans. denied, Keller

       contends, “There is a disagreement within the Court of Appeals as to whether

       an opinion of a police officer identifying a defendant in a surveillance video or

       photograph is helpful to the jury under Indiana Rule of Evidence 701.”

       Appellant’s Br. at 18. He argues, “‘[A] witness’ opinion as to what [the



       7
           Keller did not object to the identification testimony of Detective Miller.
       8
         Keller’s argument of prejudice was, in part, based on the quality of the photograph. We note, however, that
       during trial, when the State shared with defense counsel the copy of the photograph that had been shown to
       the deputies, defense counsel admitted, “[T]he quality of my photo is not nearly that good.” Tr. at 243.


       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015                     Page 12 of 26
       photograph] is saying not only does not address itself to evidentiary competence

       but invades the province of the jury.’” Appellant’s Br. at 19 (quoting Groves, 456

       N.E.2d at 723). The State maintains that Keller incorrectly invites us to elevate

       the dicta in Groves over the later-enacted Rules of Evidence and subsequent

       caselaw, including Goodson v. State, 747 N.E.2d 1181, 1184 (Ind. Ct. App.

       2001), trans. denied. We agree with the State and find that Goodson controls.


[25]   In Goodson, the defendant relied upon Groves and argued that the trial court had

       invaded the province of the jury when it allowed two officers to testify that

       Goodson was the person depicted in videotapes and photographs of a drug sale.

       747 N.E.2d at 1184. The Goodson court disagreed, holding that “the lay opinion

       of a police officer familiar with the defendant was admissible under Indiana

       Evidence Rule 701 . . . .” Id. (footnote omitted). The testifying officers had

       known Goodson for two or three years; accordingly, this court found the trial

       court had not abused its discretion in allowing the officers to testify because

       “their lay opinion that the person shown in the videotape was Goodson was

       helpful to the jury in determining the identity of the person depicted therein.”

       Id. Here, each of the deputies had known Keller for twenty years or more, and

       each gave his lay opinion that the person pictured in State’s Exhibit 17 was

       Keller. Under the reasoning of Goodson, the trial court did not abuse its

       discretion when it allowed the deputies to testify at trial.


[26]   Keller also argues that the trial court abused its discretion when it admitted,

       over his objection, State’s Exhibits 27 through 34. At trial, the State offered the

       testimony of Trooper Neal, a detective with the “technical services office,” who

       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 13 of 26
testified that State’s Exhibits 27 through 34 were copies of the previously

admitted June 2 and June 4 photographs, State’s Exhibits 16 through18 and 21

through 23, respectively,9 for which he had enlarged and adjusted the contrast

using an Adobe Photoshop CS5 program. Tr. at 625, 667, 681. Trooper Neal

explained that the Adobe program did not add or remove objects from the

photographs, instead, the program “improve[d] the appearance of a still

image.” Id. at 682. Assuming without deciding that the trial court abused its

discretion in admitting the enhanced exhibits, the error was harmless.10 State’s

Exhibit 17 was admitted without being enlarged or enhanced; therefore, the

enhanced photos were merely cumulative evidence because Deputy Strange and

Sergeant Blevins testified that they identified the suspect as Keller by looking

only at State’s Exhibit 17. Tr. at 651, 653, 657-59. In fact, Sergeant Blevins

testified he “was a hundred percent sure when [he] saw the photo that it was

Shane Keller.” Id. at 653. Error, if any, in the trial court’s admission of the

enhanced and enlarged photographs was, therefore, harmless.




9
 While Keller objected at trial to the admission of the June 2 and June 4 photographs, he makes no claim on
appeal that the trial court abused its discretion in admitting those photographs. As such that claim is waived.
Instead, he contends that the trial court abused its discretion by admitting into evidence the “altered
photographs,” State’s Exhibits 27 through 34. Appellant’s Br. at 22.
10
  We note, however, that in Arlton v. Schraut, 936 N.E.2d 831, 838 (Ind. Ct. App. 2010), trans. denied, this
court held it was an abuse of discretion for the trial court to exclude enlargements made from previously
admitted digital images where those enlargements were accurate representations of the evidence portrayed.




Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015                       Page 14 of 26
                                          B. Exclusion of Evidence

[27]   Keller also contends that the trial court abused its discretion when it: (1)

       excluded the Sheriff’s Department booking photographs of other arrested

       individuals, and (2) denied Keller’s request to try on the t-shirt in front of the

       jury and show the jury his shoes. We address these claims in turn.


[28]   During trial, Keller moved to admit numerous Sheriff’s Department booking

       photographs as photographs to use in the cross-examination of Detective

       Miller, in order to show the jury that other arrested individuals also matched

       Keller’s general description and body type. The State objected and filed a

       motion in limine to exclude the booking photographs. Appellant’s App. at 526.

       Discussion was held outside the presence of the jury, and the trial court granted

       the State’s motion to exclude the photos “unless [a] mug shot becomes

       relevant.” Tr. at 769. The trial court made clear that simply asking Detective

       Miller “to identify mug shots from the jail would not make it relevant.” Id.

       The booking photographs were not admitted.


[29]   Keller asserts that the booking photographs would have impeached the

       deputies’ opinions that it was Keller pictured in the game camera at the

       farmhouse. He argues that the photographs were not only relevant to the

       course of investigation, but also to Keller’s defense of a biased misidentification.

       During trial, the State confirmed with Detective Miller that his identification of

       Keller was made after he looked at a photograph of the burglar’s profile.

       Detective Miller testified that the booking photographs were “head on facial

       shots,” not profile shots. Tr. at 783. He also testified that while it might be
       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 15 of 26
       “possible” to determine someone’s profile using a head-on shot, it would be

       difficult, and he would prefer to have a profile shot. Id. Defense counsel, while

       conceding that the booking photographs were “not ideal,” asked the court to

       admit them on the basis that they depicted “all kinds of people,” and were

       relevant to the issue of identity. Id. at 784. The trial court denied the admission

       of the booking photos, finding that they were not relevant and would not be

       admitted based on the “questions that have been asked at this point.” Id.

       Detective Miller was not asked any more questions about the booking

       photographs, and they were not admitted. Id. at 786.


[30]   The trial court did not abuse its discretion. Here, Keller wanted the booking

       photographs admitted to “put into evidence other possibilities of people who

       have been in the system.” Id. at 749. This evidence was intended to impeach

       the deputies’ previous testimony that Keller was pictured in State’s Exhibit 17.

       Keller intended to ask Detective Miller if he was familiar with the way the

       records were kept and whether the booking photographs were in compliance.

       Tr. at 757. The trial judge inquired, “Well, once he does that, assuming that he

       even can, and I don’t know if he can. Then once he’s done that then you’ve got

       the burden of establishing some relevance.” Id. The trial judge asked defense

       counsel if he was going to cross-examine Detective Miller using certain photos

       to compare them against “the pictures taken at the house.” Id. Defense counsel

       responded, “No.” Id. Keller has failed to prove that the photographs were

       relevant. Furthermore, the exclusion of these photographs was harmless. Even

       without the booking photographs, Keller was able to convey to the jury his

       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 16 of 26
       defense that he was not the individual pictured in the game camera

       photographs. The jury was able to judge the quality of the June 2 and June 4

       photographs and compare them against Keller’s profile as he sat at trial. We

       cannot say that the trial court abused its discretion in excluding random

       Sheriff’s Department booking photographs, the use of which was to suggest that

       Exhibit 17 might depict someone other than Keller.


[31]   Keller also argues that the trial court should have allowed him to try on and

       show the jury the logo t-shirt and the shoes he was wearing when he was

       arrested. In part, he contends that by showing the jury that the t-shirt did not fit

       him in the same manner it fit the man pictured in the June 2 photographs and

       by showing that his shoes were not made by Nike, he could show that he was

       not the man pictured. Keller asserts that the trial court abused its discretion in

       excluding this evidence because its admission would have undermined the

       identification of Keller as the man in the farmhouse.


[32]   We begin by noting that the trial court did not exclude this evidence; instead, it

       held that Keller would be subject to cross-examination following the

       demonstration. Keller chose not to admit the evidence and subject himself to

       cross-examination. In the absence of context, which cross-examination could

       have provided, Keller’s evidence would have been misleading. Regarding the

       fit of the t-shirt, Keller admitted outside the presence of the jury that he had

       gained a lot of weight since his arrest. Additionally, it was irrelevant what

       shoes Keller was wearing at the time of his arrest, more than a month after the

       crimes were committed.

       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 17 of 26
[33]   Even if we consider the issue as an error in the exclusion of evidence, as Keller

       asserts, any error was harmless. The t-shirt demonstration and admission of

       shoes were intended to bolster Keller’s contention that he was not the one

       pictured by the game camera. However, there was abundant evidence that

       Keller was the person pictured by the game camera. Deputy Strange, Sergeant

       Blevins, and Detective Miller, each of whom had known Keller for more than

       twenty years, testified that Keller was the person caught on the game camera in

       State’s Exhibit 17. Furthermore, during telephone calls from prison, Keller

       repeatedly told Father, “I got myself into this mess.” Tr. at 738, 40. Finally,

       Keller recognized that the State had pictures of him when, speaking to Father,

       he said, “[T]hey’re wanting to give me more time than what Sterlin and time

       [sic] got for that shit they done, compared to this burglary case.” Id. at 739-40.

       Father responded, “Devon is looking pretty rough then too,” and Keller replied,

       “I know, he’s got his, he ain’t got no pictures or nothing on his.” Id. at 740.

       The demonstration of trying on the t-shirt and showing the jury Keller’s shoes

       could not have overcome the properly admitted evidence that Keller was the

       man pictured in State’s Exhibit 17.


                                           II. Jury Instruction
[34]   Keller next contends that the trial court abused its discretion when, for purposes

       of Class B felony burglary, it instructed the jury regarding the definition of the

       term dwelling. We afford trial courts broad discretion in the manner of

       instructing a jury, and we review such decisions only for an abuse of that

       discretion. Hayden v. State, 19 N.E.3d 831, 838 (Ind. Ct. App. 2014). “When

       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 18 of 26
       reviewing jury instructions on appeal, we look to (1) whether the tendered

       instructions correctly state the law, (2) whether there is evidence in the record to

       support giving the instruction, and (3) whether the substance of the proffered

       instruction is covered by other instructions.” Id. We will reverse a conviction

       only where the appellant demonstrates that an error in the jury instructions

       prejudiced his substantial rights. Id. “[W]here a conviction is clearly sustained

       by the evidence and the jury could not properly have found otherwise, we will

       not reverse the conviction.” Id. (internal quotation marks omitted). “‘The

       purpose of [a] jury 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.’” Id. (quoting Dill v. State,

       741 N.E.2d 1230, 1232 (Ind. 2001)).


[35]   The difference between Class B and Class C felony burglary is the type of

       building that is entered, i.e., burglary is enhanced if it takes place in a

       “dwelling.” Ind. Code § 35-43-2-1. Due to the importance of this distinction,

       both parties proposed a jury instructions on the definition of “dwelling.” Keller

       proposed the following instruction, which tracked the statutory definition found

       in Indiana Code section 35-31.5-2-107: “‘Dwelling’ means a building, structure

       or other enclosed space, permanent or temporary, moveable or fixed, that is a

       person’s home or place of lodging.” Appellant’s App. at 568. The State offered

       the following proposed instruction, which added the italicized language:

               For purposes of the burglary statute, a dwelling is defined as a
               building, structure, or other enclosed space, permanent or temporary,
               moveable or fixed, that is a person’s home or place of lodging. Any
       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015    Page 19 of 26
               such place where a person keeps personal items with the intent to reside at some
               future time is considered a dwelling.


       Id. at 544. The State cited White v. State, 846 N.E.2d 1026, 1031 (Ind. Ct. App.

       2006), trans. denied, as the source of the additional language. The trial court

       reviewed White and modified the instruction to one that neither party offered.

       Final Instruction Number 17 read:

               For purposes of the burglary statute, a dwelling is defined as a
               building, structure, or other enclosed space, permanent or temporary,
               moveable or fixed, that is a person’s home or place of lodging. Any
               such place where a person keeps personal items with the intent to reside
               in the near future is considered a dwelling.


       Appellant’s App. at 596.


[36]   In White, the victim, House, bought a residence in August 2003. One month

       later, House was in the process of remodeling. While House was not yet living

       at the home, he had moved furniture, clothes, beds, couches, refrigerator

       freezers, a television set, a radio, tools, and a washer and dryer into the house.

       White, 846 N.E.2d at 1031. House also kept his dog outside and visited several

       times a day. On September 15, 2003, White broke into House’s home and stole

       a radio and a television. White was convicted of Class B felony burglary.


[37]   On appeal, White argued that the evidence was insufficient to sustain his

       burglary conviction because the State failed to prove beyond a reasonable doubt

       that the building was a dwelling. In finding that there was sufficient evidence to

       sustain a conviction for Class B felony burglary, the White court reasoned:


       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015            Page 20 of 26
               In the instant case, the record clearly supports that House purchased
               the property for use as a permanent residence. At trial, House testified
               he was in the process of remodeling the house and spent time at the
               house several times a day. House had moved furniture, clothes, beds,
               couches, refrigerator freezers, a television set, a radio, tools, and a
               washer and dryer into the house. In a similar case, Byers v. State, 521
               N.E.2d 318, 319 (Ind. 1988), the victims were in the process of moving
               out when their home was burglarized. The defendant argued because
               they did not intend to sleep at that location the night of the break-in
               nor did they intend to sleep there for the week remaining on their
               lease, it was not a dwelling. The Byers court noted, however, that
               because the victims intended to retain their right of dominion and
               return to the premises it should be considered a dwelling. Although, in
               the instant case the evidence established that House was in the process
               of moving into the house, the difference between moving out and
               moving in is too tenuous with regard to the facts at issue to make such
               a distinction. As a result, it would defy logic to classify House’s house
               as anything other than a dwelling for the purposes of the . . . burglary
               statutes. While it is uncertain when House and his family were to take
               up permanent residency in the house, it is clear that they intended to
               do so in the near future. Therefore, we find that the state proved beyond
               a reasonable doubt that the house was a dwelling.


       White, 846 N.E.2d at 1031 (emphasis added) (citations omitted).


[38]   Under the unusual facts of this case, we need not address whether the trial court

       abused its discretion. Assuming without deciding that the jury was properly

       instructed that a dwelling includes any such place “where a person keeps

       personal items with the intent to reside in the near future,” we find insufficient

       evidence to support the jury’s determination that the farmhouse was a dwelling

       for purposes of a Class B felony burglary conviction.


[39]   Hardwick’s great-grandparents died in the late 1990s and, thereafter, the

       farmhouse remained vacant. In October 2012, Hardwick, his wife, and two

       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015    Page 21 of 26
       children moved into Hardwick’s sister-in-law’s home, with the plan to remodel

       and then move into the farmhouse. Some food was kept in the freezer of the

       farmhouse and most of the family’s belongings were also stored in the

       farmhouse. Hardwick received his mail at the farmhouse and went by daily to

       feed livestock.


[40]   Even so, Hardwick described the farmhouse as being in “pretty rough”

       condition because it “[h]ad been sitting vacant for probably ten or twelve

       years.” Tr. at 503. Hardwick did not even start the remodeling project until the

       spring of 2013 and planned to do it alone. The project required Hardwick to

       tear out walls, install insulation, put up dry wall, paint, install new plumbing,

       redo part of the electrical system, redo the kitchen cabinetry, put in new light

       fixtures, and install a new tub, toilet, and vanity in the bathroom. Hardwick

       worked on the renovations about four or five hours a night. At that time he was

       also working at a factory job about six days a week. Photographs taken of the

       farmhouse around May 2013 revealed that most of the rooms were filled with

       boxes, bags, equipment, and assorted debris. Def.’s Ex. A.


[41]   Indiana courts have held

               burglary, like arson, to be an offense against the habitation. This is
               reflected in the burglary statute itself, which provides for greater
               penalties the closer the offense comes to endangering another’s life or
               well-being. In determining what constitutes a dwelling, Watt v. State,
               446 N.E.2d 644, 645 (Ind. Ct. App. 1983), purports that the Indiana
               courts have given dwelling its plain and usual meaning. “The
               operative word defining ‘dwelling’ is a ‘home’—a settled residence
               house for a family and their personal possessions.”


       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015    Page 22 of 26
       Hayden, 19 N.E.3d at 837 (quoting White, 846 N.E.2d at 1031) (citations

       omitted). During the February 2014 trial—more than eight months after the

       June 4 burglary—Hardwick testified that he still lived with his relatives. Based

       on this evidence, we cannot say that the State proved that Hardwick intended to

       move into the farmhouse in the near future.


[42]   To convict Keller of Class B felony burglary, the State had to prove that he

       broke and entered a building or structure that was a dwelling, with intent to

       commit a felony or theft therein. For Class C felony burglary, the State would

       have to prove that Keller broke and entered any building or structure, with the

       intent to commit a felony or theft therein. Ind. Code § 35-43-2-1. A crime is a

       lesser included offense of another if it is impossible to commit the greater

       offense without first having committed the lesser one. Bedgood v. State, 477

       N.E.2d 869, 872 (Ind. 1985). Class C felony burglary is a lesser-included

       offense of Class B felony burglary. Keller’s convictions for two counts of Class

       B felony burglary reveal that the jury believed that Keller was the person who

       broke into the farmhouse with the intent to steal Keller’s property. Here, while

       finding that there was insufficient evidence to prove that Keller broke into a

       dwelling, there was more than sufficient evidence to convict Keller of the lesser-

       included offenses of Class C felony burglary on June 2, 2013 and again on June

       4, 2013. We remand to the trial court with instructions to reduce Keller’s

       convictions under Counts I and IV from Class B felony burglary to Class C

       felony burglary and resentence accordingly. Additionally, we instruct the trial




       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 23 of 26
       court to resentence Keller’s enhancement for being a habitual offender to reflect

       that Count I is a conviction for Class C felony burglary.


                                         III. Double Jeopardy
[43]   Finally, Keller argues that his convictions for theft and receiving stolen property

       violate the prohibitions against double jeopardy. It is well established that two

       or more offenses are the “same offense” in violation of Article I, section 14 of

       the Indiana Constitution if, “with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)

       (emphasis in original).


[44]   Here, we look to the statutory elements. At the time Keller committed the

       crime, Class D felony theft was defined as:

               A person who knowingly or intentionally exerts unauthorized control
               over the property of another person, with intent to deprive the other
               person of any part of its value or use, commits theft, a Class D Felony.


[45]   Ind. Code § 35-43-4-2(a). The crime of Class D felony receiving stolen property

       was, in pertinent part, defined as:

               A person who knowingly or intentionally receives, retains or disposes
               of the property of another person that has been the subject of theft
               commits receiving stolen property, a Class D Felony.




       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015    Page 24 of 26
I.C. § 35-43-4-2(b). To prove that a person committed the crime of receiving

stolen property, therefore, the State is also required to prove that the stolen

object received was the subject of a theft. “Where, as here, the person who

committed the theft was also convicted of receiving that same stolen property,

then the elements of theft are inherently included in receiving stolen property.”

White v. State, 944 N.E.2d 532, 536 (Ind. Ct. App. 2011), trans. granted,

summarily affirmed on this issue, 963 N.E.2d 511, 520 (Ind. 2012). “In other

words, an individual cannot be convicted of stealing property and of receiving

that property when the spoils of victory are divvied up.” Id.


Keller notes that the information for Count III, receiving stolen property,

alleged that he received, retained, or disposed of Hardwick’s Zinsser primer,

which was one of the items Keller was alleged to have taken in Count II, theft.

The information for Count X, receiving stolen property, alleged that he

received, retained, or disposed of a Stihl chainsaw, a Craftsman nail gun, and a

stainless-steel sink. Keller was charged with the theft of these same items as

follows: the Craftsman nail gun in Count II; the stainless-steel sink in Count V;

and the Stihl chainsaw in Count VII. Keller’s convictions for both theft and

receiving stolen property, therefore, violate the prohibition against double

jeopardy. We remand with instructions that the trial court vacate Counts III




Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015   Page 25 of 26
       and X, the receiving-stolen-property convictions and the sentences imposed

       thereon.11


[46]   We affirm in part, reverse in part, and remand for resentencing.


       Friedlander, J., and Crone, J., concur.




       11
          As we noted above, Keller also contends that his fifty-year sentence is inappropriate in light of the nature
       of the offense and the character of the offender. Because we remand to the trial court, in part, for
       resentencing, we do not address this issue. However, because this issue could be raised on a subsequent
       appeal, we remind Keller that an extensive criminal history is a significant factor in our evaluation of the
       character of the offender when reviewing whether a sentence is inappropriate under Indiana Appellate Rule
       7(B).




       Court of Appeals of Indiana | Opinion 88A04-1404-CR-168 | February 9, 2015                         Page 26 of 26
