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Burglary of deceased’s home still Class B felony, COA holds

April 28, 2016

A man who burglarized a house in Huntington after the occupant had recently died was rightly denied his petition for post-conviction relief based on his argument that the house was no longer a dwelling, the Indiana Court of Appeals ruled Thursday.

Chief Judge Nancy Vaidik wrote for the panel that affirmed  Huntington Circuit Judge Thomas Hakes’ ruling in Joshua Howell v. State of Indiana, 35A05-1510-PC-1634.  Sylvia Fry had been found dead in her home by a daughter who came to visit on Aug. 2, 2011. That night, police responded to a call of a burglary in progress at the home. Howell had broken in and taken four porcelain dolls, according to the record. He later bit a neighbor after he was stopped walking down the street with the dolls. He pleaded guilty to Class B felony burglary and was sentenced to 18 years in prison.

Howell argued on appeal that he should have been convicted of Class C felony burglary because the house should not have been considered a dwelling under the facts of the case.

“We find that it is reasonable to construe ‘dwelling’ to include buildings and structures that have been occupied in the immediate past by a recently deceased resident.  This is because even after the sole occupant of a house dies, it is common and expected for people still to be at the house.  To find otherwise would reduce the criminality of burglars who target houses where the sole occupant has recently died,” Vaidik wrote.  “Further, the fact that the house was ordered vacated by the county health department just hours before Howell broke in does not impact whether it was a dwelling for purposes of our burglary statute.”  
 

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