FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

LORINDA MEIER YOUNGCOURT                      GREGORY F. ZOELLER
Lawrence County Public Defender Agency        Attorney General of Indiana
Bedford, Indiana
                                              AARON J. SPOLARICH
                                              Deputy Attorney General
                                              Indianapolis, Indiana
                                                                            FILED
                                                                       Dec 21 2012, 9:23 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                 CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




KENNETH S. TIPTON,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 47A01-1201-CR-4
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE LAWRENCE SUPERIOR COURT
                         The Honorable William G. Sleva, Judge
                            Cause No. 47D02-0908-FA-652


                                  December 21, 2012

                             OPINION – FOR PUBLICATION




MAY, JUDGE
         Kenneth Tipton was convicted of Class C felony criminal recklessness;1 Class D

felony dealing in marijuana;2 and being an habitual offender3 after he shot at a house during a

standoff with police. He argues on appeal the evidence was insufficient to convict him of

criminal recklessness because that offense requires proof there was a risk of injury to a

person, but nobody was in the house when he shot at it.4 We affirm.

                              FACTS AND PROCEDURAL HISTORY5

         On August 16, 2009, two Bedford police officers went to Tipton’s house to arrest him

after his wife reported a domestic battery. Tipton’s brother Donnie allowed the officers to


1
    Ind. Code § 35-42-2-2.
2
    Ind. Code § 35-48-4-10.
3
    Ind. Code § 35-50-2-8.
4
  Tipton also argues the trial court erred because it did not designate which conviction was to be enhanced by
the habitual offender finding. When a defendant is convicted of multiple offenses and found to be an habitual
offender, the trial court must impose the resulting penalty enhancement on only one of the convictions, and it
must specify the conviction to be enhanced. McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999). Failure to
specify requires remand to correct the sentence as it regards the habitual offender status. Id. The State
acknowledges the trial court did not designate the conviction to which the habitual offender enhancement was
to be attached.
  Remand is not required in light of the facts before us. The court ordered a twelve-year habitual offender
sentence enhancement, and a twelve-year enhancement could be imposed only if the enhancement was attached
to Tipton’s Class C felony conviction. “The court shall sentence a person found to be a habitual offender to an
additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three
(3) times the advisory sentence for the underlying offense.” Ind. Code § 35-50-2-8(h). The sentence
enhancement available for Tipton’s criminal recklessness conviction was four to twelve years: “A person who
commits a Class C felony shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the
advisory sentence being four (4) years.” Ind. Code § 35-50-2-6. The sentence enhancement possible for
Tipton’s dealing in marijuana conviction was 18 months to 4.5 years: “A person who commits a Class D
felony shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory
sentence being one and one-half (1 ½ ) years.” Ind. Code § 35-50-2-7. Thus, the court could have been
attaching the sentence enhancement only to Tipton’s sentence for Class C felony criminal recklessness.

5
  We heard oral argument in Indianapolis on October 23, 2012. We commend counsel on the quality of their
oral advocacy.

                                                       2
enter the house, and he told the officers he was there alone. As one officer walked toward

the hallway, he saw Tipton coming toward him with a gun. The officer yelled “gun” and

both officers tried to exit through the front door. (Tr. at 1639.) Tipton fired a shot while the

officers were still in the house.

          The officers ran in different directions when they left the house, and they sought cover

behind trucks. Tipton fired at one of the officers, and then retreated into the house. The

other officer called for reinforcements. Tipton allowed his brother to leave the house, but

then he fired another shot. After additional officers arrived, Tipton fired more shots, two of

which hit a police car. Some shots hit the house across the street. The residents, Adam

Mullis and his wife, were not home at the time.

          Police spoke to Tipton on the telephone, and Tipton agreed he would surrender if he

were charged with only a minor offense. An officer at the police station wrote a letter saying

Tipton would be charged only with criminal recklessness if he surrendered, and the officer

read the letter to Tipton over the telephone. Tipton surrendered, but then was charged with

criminal recklessness along with three other charges: attempted murder,6 dealing in

marijuana,7 and being an habitual offender.

          A jury acquitted Tipton of attempted murder but found him guilty of the other charges.

    The court sentenced him to a total of twenty-three years.



6
    Ind. Code § 35-41-5-1 (attempt); 35-42-1-1 (murder).
7
  After Tipton surrendered, police searched his house and found what they called a “marijuana grow
operation.” (Tr. at 1611.)

                                                     3
                              DISCUSSION AND DECISION

       A person who recklessly, knowingly, or intentionally performs an act that creates a

substantial risk of bodily injury to another person commits criminal recklessness. Ind. Code

§ 35-42-2-2. The offense is a Class C felony if it is committed “by shooting a firearm into an

inhabited dwelling or other building or place where people are likely to gather.” Id. Tipton

argues the State did not prove the element “substantial risk of bodily injury to another

person” because nobody was in the dwelling when Tipton shot at it.

       The State initially notes, correctly, that the plain language of the statute does not

require that the person who faces the risk of injury be an inhabitant of the house, nor does it

explicitly require “any person be physically inside of the building at the exact moment of the

defendant’s reckless action.” (Br. of Appellee at 13.) As there were a number of other

persons who were at risk, specifically all the police officers, the State argues the statutory

requirements are satisfied.

       We decline to affirm on that ground, as that is not the way the State charged Tipton or

prosecuted him. The charging information stated Tipton performed “an act that created a

substantial risk of bodily injury to another person by shooting a firearm into an inhabited

dwelling, to wit [the Mullis residence].” (App. at 19.) It did not allege the police officers

were at risk. In its opening statement, the State told the jury “the evidence is going to show

you and you’re going to be firmly convinced that he committed criminal recklessness. When

he’s shootin [sic] in the inhabited house behind him, the place where his neighbors live gets

shot up.” (Tr. at 601.) In closing argument, the State argued to the jury that:

                                              4
        [Tipton] surrendered, but not before the damage was done, not before . . . the
        home of Adam Mullis, the place where Adam Mullis slept, the place where
        Adam Mullis, [sic] had food in his refrigerator, a TV to watch, a couch to sit
        on in the living room. [Tipton] surrendered but not before he had shot that
        house. . . . Adam Mullis lived there. He inhabited that house and Kenny
        Tipton’s shooting was reckless.8

(Id. at 1882-83) (footnote added).

        We must therefore determine whether Tipton’s acts created “substantial risk of bodily

injury” to the Mullises. They did. We reviewed our decisions on the object of “substantial

risk” in Smith v. State, 688 N.E.2d 1289 (Ind. Ct. App. 1997). Smith test fired his pistol at an

old car parked in his backyard. Several homes were located within a fifty-yard radius of the

old car. Inside one home that was in Smith’s direct line of fire, a light and a television were

on, but a police officer could not get anyone inside that house to come to the door. There

was a “large mass of people,” id. at 1290, walking on the street near Smith’s home. They

were leaving a festival at a nearby park and were in range of Smith’s gunfire. Smith

contended the State presented insufficient evidence his conduct created a substantial risk of

bodily injury.

        Distinguishing decisions that found no such risk, we disagreed:

              “Substantial” risk is risk that has “substance or actual existence.”
        Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind. Ct. App. 1995)[, reh’g
        denied, trans. denied] (citing Elliott v. State, 560 N.E.2d 1266, 1267 (Ind. Ct.

8
  During trial, Tipton’s counsel asked for a directed verdict on the criminal recklessness count on the ground
the State did not name the “other person” who was allegedly placed at risk of injury. (Tr. at 1681.) The State
responded it was not necessary that the “other person” be named, but then went on to say:
         The State has proved the other person though. The State has met its burden. The person
         came in, testified, Your Honor, Adam Mullis came in and testified that he, it was common,
         likely for him to be at home on a Sunday in an evening at that residence. So I, I’ve met
         beyond, or I mean I’ve met the threshold to survive a directive [sic] verdict.
(Id. at 1689.) The court denied the motion for directed verdict on the criminal recklessness count.
                                                      5
App. 1990)). Smith points to our opinions in Boushehry and Elliott in support
of his argument that the State relied on mere speculation that his actions posed
a substantial risk of bodily injury to another person. However, both cases
relied upon by Smith are distinguishable from the instant case.
        In Elliott, the defendant fired five pistol shots from his place of business
over uninhabited fields and woodlands which bordered his business. Elliott,
560 N.E.2d at 1267. Some of Elliott’s employees were present at the time;
however, none of the employees were in his line of fire. Id. Moreover,
although hunters were known to hunt in the adjacent fields and woodlands, no
evidence was presented that anyone was present in the woodlands or fields. Id.
Accordingly, we reversed Elliot’s criminal recklessness conviction concluding
that his conduct did not create a substantial risk of bodily injury to another
person “because there were no people in or near his line of fire.” Id.
        Similarly, in Boushehry, the defendant went to a vacant lot and fired
two or three shots from his .22 caliber rifle at some geese. Boushehry, 648
N.E.2d at 1176. The defendant’s shots were fired in the direction of
Shelbyville Road, which bordered the vacant lot. Id. As with the “non-
existent hunters in Elliott,” we concluded that the possibility of a motorist
passing by on Shelbyville Road at the time the defendant fired his gun
presented “only a remote risk of bodily injury.” Id. at 1177. Because the
record contained no evidence that anyone was in or near the defendant’s line of
fire, we held that the State failed to prove the actual existence of substantial
risk of bodily injury to another person. Id.
        Unlike in Boushehry and Elliott, the evidence and reasonable inferences
to be drawn therefrom indicate that there were individuals in or near Smith’s
line of fire. Here, the State presented evidence that Smith test fired his gun at
least six times in his backyard by shooting at an old car. Officer Baldwin
testified that there were approximately ten residential homes located within
fifty yards of the car, and that one of the homes was in the direct line of
Smith’s gunfire. Although nobody answered the door of that home upon
Officer Baldwin’s investigation, Officer Baldwin stated that he noticed both a
light and a television on in the home, creating a reasonable inference that a
person was in the home at the time of the Smith’s activity. Moreover, the
record shows that a large mass of people inhabited the street near Smith’s
backyard at the time of his test firing because a festival had just ended at a
park nearby. Indeed, Officer Baldwin testified that Smith’s test firing activity
occurred within a “stone’s throw” of these people.
        Based upon this evidence, the jury could reasonably infer that Smith’s
conduct created an actual and substantial risk of bodily injury to another
person. There was sufficient evidence to support his conviction for [sic]
criminal recklessness.

                                         6
Id. at 1291. In the case before us, as in Smith, a reasonable inference could have been

drawn that a person might have been in the Mullis home when Tipton shot at it.

          The statute under which Tipton was charged requires there be an inhabited dwelling:

“criminal recklessness is a Class C felony if it is committed by shooting a firearm into an

inhabited dwelling or other building or place where people are likely to gather.”9 Ind. Code §

35-42-2-2. Tipton argues the house was not the “inhabited dwelling” the statute requires

because nobody was home. He notes a statutory definition of “dwelling”10 as “a building,

structure, or other enclosed space, permanent or temporary, movable or fixed, that is a

person’s home or place of lodging,” Ind. Code § 35-31.5-2-107, and claims: “If the

Legislature intended to elevate criminal reckless [sic] to a class C felony simply upon a

showing that the building or structure shot into was a ‘person’s home or place of lodging,’

then the word dwelling would have sufficed.” (Reply Br. of Appellant at 4.) Compare Ind.

Code § 35-43-2-1 (burglary is a Class B felony if it is committed while armed with a deadly

weapon or the building or structure is a dwelling).

          While we recognize our obligation when reviewing a statute to, “if possible, give

effect to every word and clause therein,” Indiana State Bd. of Health v. Journal-Gazette Co.,

608 N.E.2d 989, 992 (Ind. Ct. App. 1993), opinion adopted sub nom. Indiana State Bd. of

Health v. State Journal-Gazette Co., 619 N.E.2d 273 (Ind. 1993), we decline to hold a




9
   In its charging information the State alleged only that Tipton shot into an inhabited dwelling. It did not
allege he shot into some other building or place where people are likely to gather.
10
     There does not appear to be a statutory definition of “inhabited” or “inhabited dwelling.”
                                                       7
dwelling is necessarily “uninhabited” for criminal recklessness purposes when its residents

are briefly away.

        Our Supreme Court has addressed the burglary statute, which refers only to a

“dwelling,” and not an “inhabited” dwelling. It is clear in that context that a place may be a

“dwelling” even when the residents are temporarily away. In Phillips v. State, 514 N.E.2d

1073 (Ind. 1987), Phillips claimed the residences he broke into were not dwellings,11 so he

could not be found guilty of Class B felony burglary. The buildings burglarized were places

of residence, but at the time of the burglaries the residents were spending some of the winter

months out-of-state. Phillips cited Smart v. State, 244 Ind. 69, 190 N.E.2d 650 (1963), which

was based on an earlier version of the burglary statute. Before its 1982 amendment, the

statute defined first-degree burglary as breaking and entering a dwelling or other place of

human habitation. Smart and other decisions held the statute required a showing the building

was a dwelling and that persons were dwelling in it at the time of the break-in. Phillips, 514

N.E.2d at 1075. The amended statute, now Ind. Code § 35-43-2-1, provided the offense of

breaking into a structure was a class B felony if the building or structure was a dwelling:

        We agree that the present statute does not require the occupier of the residence
        to be in the home at the time of the burglary. Here, the evidence revealed the
        structures were the permanent places of residence of the Perkins’s and Ellis’s.
        The fact they were temporarily out of the homes on vacation at the times of the
        break-ins does not remove the homes from the definition of dwellings. We
        therefore find no reversible error on the issue of sufficiency of the evidence to
        support the convictions.


11
   At that time, a “dwelling” was defined as “a building, structure, or other enclosed space, permanent or
temporary, movable or fixed, that is a person’s home or place of lodging.” Ind. Code § 35-41-1-10.

                                                    8
514 N.E.2d at 1075.

      We reached the same conclusion where arson was involved, but like the burglary

statute, the arson statute requires only a “dwelling,” not an “occupied” or “inhabited”

dwelling. See White v. State, 846 N.E.2d 1026, 1030 (Ind. Ct. App. 2006) (noting arson is

committed when a person, “by means of fire, knowingly damages a dwelling of another

person without the other person’s consent”) (quoting Ind. Code § 35–43–1–1(a)(1)), trans.

denied. And see generally T. T. F. Huang, Annotation, Vacancy or nonoccupancy of building

as affecting its character as “dwelling” as regards arson, 44 A.L.R.2d 1456 (1955):

              Whether or not the vacancy or nonoccupancy of a particular building
      will affect its status as a “dwelling” in connotations pertaining to the crime of
      arson depends upon the circumstances giving rise to such vacancy or
      nonoccupancy. Speaking generally, an unfinished or incomplete building
      which has not yet been occupied will not be regarded as a “dwelling” even
      though designed as a dwelling house and destined to be so used on completion.
       Conversely, where a building originally used as a dwelling house has been
      abandoned for such purposes or where such a building has been without a
      tenant or occupant for a prolonged period, it will not be regarded as a
      “dwelling.”
              On the other hand, the mere temporary absence of occupants, at the time
      of the fire, from a building in general use as a dwelling house will not, in the
      view of most courts, alter the status of the structure as a “dwelling” for
      purposes pertinent to arson prosecutions.

(Footnotes omitted.)

      It does not appear our appellate courts have addressed whether a dwelling remains

“inhabited” when the people who live there are temporarily away from home, but decisions

from other courts are instructive. In Carthern v. State, 529 S.E.2d 617 (Ga. 2000), a jury




                                             9
found Carthern guilty of criminal damage to property12 in the first degree for shooting a gun

into the house of a neighbor. Carthern fired his gun as he walked down his street at four

o’clock in the morning. The family that lived in the house was on vacation, but the Court

noted there was no evidence Carthern knew no one was home. Id. at 618.

        The issue in Carthen’s appeal was whether the act of firing a gun into a residence

when no one is physically present interferes with property in a manner so as to endanger

human life. “Construing the phrase ‘endanger human life’ to mean reckless endangerment13

of another, we hold that a person who fires gunshots into an inhabited dwelling where people

are likely to be present endangers human life within the meaning of the statute.” Id.

(footnote added). The Court noted Carthern “fired a gun at night into an inhabited dwelling

where residents were likely to be present, thus recklessly endangering the life of another.

The fact that the occupants of the house were not physically present does not lessen the risk

of danger to others or the recklessness of his behavior.” Id. at 620. That Court apparently

believed a residence was “inhabited” as long as someone was “likely” to be inside.

        The California Supreme Court surveyed decisions addressing what it means for a

dwelling to be “inhabited.” People v. Hansen, 885 P.2d 1022, 1027 (Cal. 1994), reh’g

denied, overruled on other grounds by People v. Sarun Chun, 203 P.3d 425 (Cal. 2009):


12
  That offense is committed when a person “[k]nowingly and without authority interferes with any property in
a manner so as to endanger human life.” Ga. Code § 16-7-22.

13
   The Carthern court followed “the Model Penal Code’s formulation that the ‘actual risk of danger’ must
exist and the defendant must at least act recklessly. This interpretation is consistent with the purpose of the
statute in seeking to protect human life and recognizes the heightened punishment for criminal damage to
property when human safety is threatened.” 529 S.E.2d at 620.

                                                     10
       The discharge of a firearm at an inhabited dwelling house -- by definition, a
       dwelling “currently being used for dwelling purposes, whether occupied or
       not” [citing Cal. Penal Code § 246, which establishes the offense of “shooting
       at inhabited dwelling house”] -- is a felony whose commission inherently
       involves a danger to human life. An inhabited dwelling house is one in which
       persons reside (People v. Rodriguez (1986) 42 Cal.3d 1005, 1018, 232
       Cal.Rptr. 132, 728 P.2d 202) and where occupants “are generally in or around
       the premises.” (People v. White (1992) 4 Cal.App.4th 1299, 1303, 6
       Cal.Rptr.2d 259, italics in original.) In firing a gun at such a structure, there
       always will exist a significant likelihood that an occupant may be present.
       Although it is true that a defendant may be guilty of this felony even if, at the
       time of the shooting, the residents of the inhabited dwelling happen to be
       absent (People v. Rodriguez, supra, 42 Cal.3d at p. 1018, 232 Cal.Rptr. 132,
       728 P.2d 202), the offense nonetheless is one that, viewed in the abstract—as
       shooting at a structure that currently is used for dwelling purposes—poses a
       great risk or “high probability” of death within the meaning of Patterson. The
       nature of the other acts proscribed by section 246 reinforces the conclusion
       that the Legislature viewed the offense of discharging a firearm at an inhabited
       dwelling as posing a risk of death comparable to that involved in shooting at an
       occupied building or motor vehicle.

       Similarly, in Matter of Mario Y, 428 N.Y.S.2d 71, 74 (App. Div. 1980), a juvenile

argued shooting at a house that was normally occupied as a residence was not reckless

endangerment because the occupants worked during the day and he believed that it was

unoccupied at the time. The court rejected that argument: “Appellant’s total disregard of the

possibility that someone might be home constituted such a gross disregard of the risk and

such a gross deviation from the standard of conduct that a reasonable person would observe

in the situation as to constitute reckless endangerment.” Id.

       We adopt the reasoning of those courts that have held the fact the occupants of a

house were not physically present does not lessen the risk of danger to others or the

recklessness of his behavior and that shooting at a structure currently used as a dwelling


                                              11
poses a great risk or “high probability” of death. We accordingly hold a residence may be

“inhabited” for criminal recklessness purposes if someone is likely to be inside.

       While the weight of authority suggests the resident need not be at home for there to be

an “inhabited dwelling,” Tipton notes the State tried him on the premise that the only persons

placed at “substantial risk of bodily injury,” Ind. Code § 35-42-2-2, were the Mullises, and

they were not home. He makes a due process argument based on Dunn v. United States, 442

U.S. 100, 106 (1979), where the Supreme Court said:

       To uphold a conviction on a charge that was neither alleged in an indictment
       nor presented to a jury at trial offends the most basic notions of due process.
       Few constitutional principles are more firmly established than a defendant’s
       right to be heard on the specific charges of which he is accused.

       This is not a situation where a variance between the charging information and the

evidence presented at trial raises a due process concern. A charging information must allege

the elements of the crime such that the accused is sufficiently apprised of the nature of the

charges against him so that he may anticipate the proof and prepare a defense in advance of

trial. Bayes v. State, 779 N.E.2d 77, 80 (Ind. Ct. App. 2002), trans. denied. The State is not

required to include detailed factual allegations in the charging instrument. Id. “A variance is

an essential difference between the charging instrument and the proof presented at trial.” Id.

       Tipton’s charging information alleges he shot into the “inhabited dwelling” at 2419 J

Street, (App. at 19), and that act created “a substantial risk of bodily injury to another

person.” Id. (emphasis added). The charging information therefore does not necessarily

seem to be inconsistent with the argument the State makes on appeal that the statute is


                                              12
satisfied if any “other person” is at risk of injury. Nor does there appear to be a “variance”

between the general charging information and the more specific argument and evidence

offered at trial.

       Instead, it appears Tipton is arguing the evidence was insufficient to support his

conviction because the only persons the State argued Tipton placed at substantial risk of

bodily injury, the Mullises, could not in fact have been at any such risk -- they were not

present at the time of the shooting. As explained above, we believe someone shooting a gun

at a residence may, for purposes of a criminal recklessness prosecution, create a substantial

risk of bodily injury to another person even if the resident is away from home at the moment

of the shooting. We must accordingly affirm Tipton’s conviction.

       Affirmed.

BAKER, J., and SHEPARD, Sr. J., concur.




                                             13
