Justices: Burglar who armed himself after entering residence committed Level 2 felony

The Indiana Supreme Court has concluded that a man who stole a handgun from a partially-paralyzed victim during a burglary and threatened him with it should have his felony conviction enhanced even though he didn’t possess the firearm when he entered the victim’s home.

Determining a burglary is “an ongoing crime that encompasses a defendant’s conduct inside the premises,” the justices affirmed Zachary Fix’s conviction of Level 2 burglary while armed with a deadly weapon in Zachary Fix v. State of Indiana, 22S-CR-7, on Monday.

However, justices did find Fix’s commission of Level 5 felony robbery and Level 6 felony theft amounted to a single episode of criminal conduct, so the length of his aggregate sentence exceeded the maximum aggregate sentence permitted by the Sentencing Cap Statute. Thus, the high court ordered remand for resentencing.

In July 2017, Fix and his friend Bobby Yeagy drove through Anderson in search of a place to rob, intending to use the loot to eventually trade for drugs.

The men — high on meth and heroin — ultimately went to the home of Robert Mudd, a paraplegic man to whom Yeagy had delivered pizza on several occasions in Alexandria. Mudd’s medical condition confined him to a bed in his living room.

After the two men entered the residence through the back door, they approached Mudd and demanded that he direct them to anything of value or they would kill him.

At some point, Mudd reached for a handgun he kept under his pillow and a struggle ensued. Fix eventually wrested control of the firearm and pistol-whipped Mudd.

About an hour later, Fix and Yeagy left Mudd’s home to unload the stolen goods. They returned about 45 minutes later for a second round of looting after using more drugs.

In the end, Fix and Yeagy made off with an estimated $11,000 worth of Mudd’s property.

The state charged Fix with several offenses: one count of Level 2 felony burglary while armed with a deadly weapon; two counts of Level 3 felony robbery, one based on bodily injury and one based on the use of a deadly weapon; and one count of Level 6 felony theft. A jury found him guilty as charged.

During sentencing, Fix received 30 years for Level 2 felony burglary; six years for level 5 felony robbery as a lesser-included offense of Level 3 felony robbery resulting in bodily injury; and 2½ years for Level 6 felony theft. The trial court ordered Fix to serve those sentences consecutively, culminating in an aggregate term of 38½ years.

In September 2021, the Court of Appeals of Indiana affirmed in part and reversed in part, holding that insufficient evidence supported Fix’s conviction for Level 2 felony burglary while armed with a deadly weapon.

Because the “criminal transgression of burglary is committed” when the defendant crosses the threshold of the premises in which he intends to commit a felony, and because Fix acquired the handgun only after crossing that threshold, the panel reasoned the elevated offense had no leg to stand on.

On transfer, the Supreme Court analyzed two issues: whether the state presented sufficient evidence to convict Fix of Level 2 felony burglary, and whether the aggregate sentence for Fix’s felony convictions exceeded the sentencing cap imposed by Indiana Code § 35-50-1-2.

On the first issue, the Supreme Court, citing Bissot v. State, 53 Ind. 408, 410–11 (1876) and Seeley v. State, 544 N.E.2d 153, 157 (Ind. 1989), determined the Level 2 felony conviction was appropriate.

“This well-established precedent leads us to conclude that burglary — even if ‘complete’ for purposes of establishing culpability — is an ongoing crime that encompasses a defendant’s conduct after the breaking and entering, not just at the threshold of the premises,” Justice Christopher Goff wrote.

The justices also cited several cases regarding common-law burglary.

“The policy of public safety embodied in the burglary statute persuades us that the legislature intended for the armed enhancement to apply, even if the enhancing event followed the act of breaking and entering,” Goff wrote. “Indeed, whether the offender arrives with a deadly weapon or whether he arms himself once inside the premises, the danger posed is the same.

“… And to terminate culpability at the threshold would circumvent the enhancement for any burglar wise enough to retrieve a deadly weapon (e.g., a standard kitchen knife) once inside the premises, effectively defeating the statutory goal of ensuring public safety,” Goff continued. “Our construction of our burglary statute, we believe, ‘is safe to the State and the citizen, and the only one by which the intention of the legislature can be practically carried into effect.’”

On the second issue, the justices found the sentencing cap was violated.

“Since the two non-violent crimes of level-5 felony robbery and level-6 felony theft amount to a single episode of criminal conduct, ‘the total of the consecutive terms of imprisonment may not exceed seven (7) years,’” Goff wrote, citing I.C. § 35-50-1-2(d)(2). “Because the trial court sentenced Fix to an aggregate sentence of eight and a half years for these two offenses, we reverse and remand accordingly for resentencing.”

Chief Justice Loretta Rush and Justices Mark Massa and Steven David concurred. Justice Geoffrey Slaughter concurred in the holding that Fix committed the elevated burglary offense and in the judgment without a separate opinion.

Editor’s note: This article has been corrected.

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