COA affirms dismissal of armed burglary charge

A Huntington County woman who stole a gun as part of a plan to trade the gun for drugs will not be charged with armed burglary because the gun was not used to “arm” the woman during her crime, the Indiana Court of Appeals ruled Wednesday.

In October 2015, Andrew Stoffel returned to his home and discovered that it had been burglarized, with a handgun with three magazines and a safe missing. Amber McHenry was charged with Level 2 and Level 4 felony burglary counts for her alleged involvement in the crime.

McHenry moved to dismiss the Level 2 felony charge of burglary while armed with a deadly weapon, arguing because she obtained the handgun in the course of the burglary, it could not be used to elevate her charge.  The trial court granted McHenry’s motion, prompting the state’s appeal in State of Indiana v. Amber E. McHenry, 35A04-1609-CR-2080.

In a Wednesday affirmation of the trial court’s decision, Indiana Court of Appeals Senior Judge Ezra Friedlander noted that one of McHenry’s accomplices, Rolly Dulworth, had told McHenry and other accomplices where to find the gun based on an earlier conversation with Stoffel at his home. Then, during the robbery, McHenry used Dulworth’s information to locate the gun, which she later traded for heroin.

“Applying ‘using or involving a weapon’ as the plain meaning of the term ‘armed,’ we observe that a person is not armed merely by virtue of possessing a weapon,” Friedlander wrote. “Rather, there must be something more indicating the use or involvement of the weapon in the crime. The evidence here does not indicate that McHenry handled the gun in a manner indicative of using it or involving it in the crime in any way.”

Rather, the judge said McHenry seemed to view the gun as “loot” that could later be used to obtain drugs.

“Indeed, it seems illogical that the defendant who steals a gun is charged with a higher-level felony than a defendant who steals other items, such as coins or tools, even though the crimes are committed in the same, unarmed manner,” Friedlander wrote.

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