IC § 35-43-2-1. Burglary.

A person who breaks and enters the building or structure of another person, with intent to commit a felony or theft in it, commits burglary, a Level 5 felony. However, the offense is:

(1) a Level 4 felony if the building or structure is a dwelling;

(2) a Level 3 felony if it results in bodily injury to any person other than a defendant;

(3) a Level 2 felony if it:

(A) is committed while armed with a deadly weapon; or

(B) results in serious bodily injury to any person other than a defendant; and

(4) a Level 1 felony if:

(A)  the building or structure is a dwelling; and

(B) it results in serious bodily injury to any person other than a defendant.

– The only difference between residential entry and residential burglary is the element of intent to commit a felony therein; because residential entry contains all of the elements of residential burglary save one, residential entry is a lesser included offense of residential burglary. Vincent v. State, 639 N.E.2d 315 (Ind. App. 1994).

– Since it is impossible to commit burglary without committing residential entry, a trial court’s decision to merge a residential entry count with a burglary count was inappropriate, and remand with an order to vacate the conviction for the lesser included offense was required. Webster v. State, 708 N.E.2d 610 (Ind. Ct. App. 1999).

– Residential entry is a lesser included offense of burglary, which allows a felony prosecution for a housebreak without the need for proof of the intent to commit a target crime. Patterson v. State, 729 N.E.2d 1035 (Ind. App. 2000).

– A defendant’s belief that he has permission to enter must be reasonable in order for the defendant to avail himself of the defense of consent. McKinney v. State, 653 N.E.2d 115 (Ind. App. 1995).

– Where evidence tended to prove an abduction aimed at a sexual attack elsewhere, defendant barely entered residence of victim, and there was no sexual contact with victim at residence, state was entitled only to conviction for the lesser included offense of residential entry, not burglary. Richards v. State, 681 N.E.2d 208 (Ind. 1997).

– Defendant’s conviction of residential entry in violation of IC 35-43-2-1.5 was supported by sufficient evidence notwithstanding victim’s ambiguous testimony about whether defendant shoved victim through door of residence or whether victim shoved defendant through door. Copeland v. State, 802 N.E.2d 969 (Ind. App. 2004).

– When defendant, a friend of the victim’s fiance, entered the victim’s unlocked house and began performing oral sex on the victim while she was half asleep, then proceeded to sexual intercourse, the victim’s testimony was not so inherently improbable as to require a reversal of defendant’s convictions for deviate sexual conduct under IC 35-42-4-2(a) and for residential entry. The victim, whose fiance sometimes initiated sex when she was asleep, testified that she had been “dreaming” and “halfway asleep” when defendant first entered her bed, and her actions in calling another individual, instead of the police, after discovering defendant in her bedroom were reasonably explained as a state of panic. Nolan v. State, 863 N.E.2d 398 (Ind. Ct. App. 2007).

– Partial entry into a home created the same situation that the crime of residential entry was designed to deter in the same manner as a complete entry and, therefore, defendant’s partial entry fell within the scope of residential entry and the state produced sufficient evidence to sustain defendant’s conviction for residential entry under IC 35-43-2-1.5. – Williams v. State, 873 N.E.2d 144 (Ind. App. 2007).

– Conviction for residential entry under IC 35-43-2-1.5 was supported by evidence that defendant entered the residence through a locked door; the locked kitchen constituted a separate structure or enclosed space for purposes of IC 35-41-1-10 and while defendant had permission to be in garage, defendant did not have permission to enter the residence. Davidson v. State, 907 N.E.2d 612 (Ind. App. 2009).

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