Burglary conviction upheld in dispute over pet cats

A man who battered and blinded another man for sending his pet cats to an animal shelter lost his appeal of his felony burglary conviction Wednesday.

While homeless, Christopher Milo, his girlfriend and their two cats moved into an apartment with Anthony Powers. A problem arose when Milo and his girlfriend stopped living in the apartment but left the cats behind, which Powers had requested they not do because the complex forbade pets. Eventually, Powers took the cats to an animal shelter.

When Milo and his girlfriend later returned to retrieve the cats, Powers told them his landlord had taken them and the two became furious. The next day, the couple broke through Powers’ exterior door and entered his apartment, where Milo proceeded to attack Powers. The attack left Powers blind in one eye, and Milo was later charged with Level 3 felony burglary, Level 6 felony residential entry and Class A misdemeanor battery.

Milo was granted a motion for a directed verdict after the state rested, but the Delaware Circuit Court later granted the state’s motion to correct error based on Indiana Code § 35-34-1-4(a)(1).

Milo was eventually sentenced to 12 years for a conviction of Level 3 felony burglary.

On appeal, Milo argued the trial court’s reconsideration of its earlier ruling granting his motion for a directed verdict violated the constitutional prohibition against double jeopardy and acted as an acquittal. But in its decision, the Indiana Court of Appeals found that Milo’s motion was granted not because the state failed to prove his intent to commit felony-level battery, but because of a deficiency in the charging information.

“Because the trial court’s ruling was not a grant of a motion for a directed verdict, it did not act as an acquittal, and double jeopardy did not bar the trial court from reconsidering its ruling,” Judge Paul Mathias wrote for the appellate court. “… We also hold that the trial court’s reconsidered ruling on Milo’s motion was not improper.”

The appellate panel concluded that because Milo did not challenge the alleged defects in the charging information until after the state had rested its case-in-chief, any claimed defect in the information was therefore waived. It further noted that the state was not required to prove that Milo committed felony-level battery against Powers, but only that he intended to do so when he broke into the apartment

Additionally, the appellate court found the trial court’s jury instruction on the elements of burglary did not constitute fundamental error and that the jury was aware of the necessity of finding that Milo intended to commit felony battery when he broke into the apartment. However, it did find the language to be “at best, inconsistent and, at worst, misleading.

“Despite the language of Final Instruction No. 4, we conclude that the instructions as a whole, especially in conjunction with the arguments of counsel, adequately informed the jury that, to convict Milo of burglary, it had to find that he had the intent to commit felony battery causing serious bodily injury to Powers when he broke and entered Powers’s apartment,” Mathias wrote.

The court therefore affirmed in Christopher Milo v. State of Indiana, 19A-CR-751.