ILNews

First impression on residential entry issue

Back to TopCommentsE-mailPrintBookmark and Share

Since a man who had permission to be in his ex-girlfriend's garage did not have permission to be in her house, he committed residential entry as a Class D felony when he kicked in her locked kitchen door to use the phone. The issue whether an attached garage is considered a dwelling under the residential entry statute is an issue of first impression for the Indiana Court of Appeals.

In Rahn Davidson v. State of Indiana, No. 49A02-0810-CR-898, Rahn Davidson contended he didn't commit residential entry because he had permission to be in his ex-girlfriend's garage. After they broke up, she allowed him to store some of his belongings in her garage, but did not allow him into her house. Davidson argued that Indiana caselaw holds that a garage is considered part of a dwelling for purposes of the burglary statute. Therefore in applying that line of reasoning to his case, he had permission to be in his ex-girlfriend's home and can't be convicted of residential entry.

The Indiana Court of Appeals found no Indiana cases dealing with this particular issue, so they turned to cases from other jurisdictions. The appellate court used State v. Cochran, 463 A.2d 618 (Conn. 1983), State v. McDonald, 346 N.W.2d 351 (Minn. 1984), and Wesolic v. State, 837 P.2d 130 (Alaska Ct. App. 1992), to hold the locked kitchen in the ex-girlfriend's residence constituted a separate structure or enclosed space for purposes of Indiana Code Section 35-41-1-10, and thus Davidson's entry into the kitchen constitutes the offense of residential entry, wrote Senior Judge Betty Barteau.

The ex-girlfriend gave Davidson permission to enter the garage, but not her house. The evidence shows there was a clear demarcation between the garage and the locked kitchen. Where there is an evidentiary boundary, such as a door that was locked at the time of the incident, the area is not only a part of the whole dwelling, but also a separate structure or enclosed space, she wrote.

Using Davidson's argument that his entry into the kitchen doesn't constitute residential entry because he was already in the dwelling amounts to carte blanche for anyone who obtains consent to enter only a portion of the residence, the judge continued. Under that rationale, a person couldn't be convicted of residential entry with respect to a separate portion of the residence even if he or she kicked in a locked door.

When the state seeks a conviction under the residential entry statute based upon unlawful entry of a separate structure or enclosed space within a dwelling, the state's burden includes a showing that any permission to be in one section of the dwelling didn't extend to the separate structure where the alleged residential entry occurred, wrote Senior Judge Barteau.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

ADVERTISEMENT