COA tosses Level 2 felony because burglar was unarmed at time of entry

The Court of Appeals has partially overturned a Madison County man’s criminal conviction, finding that even though he threatened his partially-paralyzed victim with a handgun, he did not commit a Level 2 felony of burglary while armed because he did not have the weapon when he broke into the home.

Zachary Fix entered into the Alexandria home of Robert Mudd, who was confined to bed and required substantial care, planning to steal items that could be sold or traded for drugs. Mudd pulled a handgun after Fix had entered the house, took Mudd’s debit card and threatened to kill him. Fix wrestled the firearm away from Mudd and then hit him across the side of the head with the weapon.

In all, Fix and his accomplice, Bobby Yeagy, stole an estimated $11,000 worth of property from Mudd which included 12 firearms, thousands of rounds of ammunition, several credit and debit cards, various medications, syringes, and tools.

Fix was eventually apprehended and convicted by a jury of Level 2 felony burglary while armed with a deadly weapon, Level 3 felony robbery resulting in bodily injury, Level 3 felony armed robbery, and Level 6 felony theft.

Fix appealed, arguing, in part, the state had insufficient evidence to sustain his conviction of burglary while armed with a deadly weapon.

A unanimous Court of Appeals panel agreed in Zachary Fix v. State of Indiana, 20A-CR-1566.

The state had asserted under Indiana Code section 35-43-2-1(3)(A), a person commits burglary with a deadly weapon even if that individual enters the premises unarmed but later picks up a deadly weapon while inside.

However, the Court of Appeals was not convinced. The appellate panel noted precedent has interpreted the burglary statute, Ind. Code 35-43-2-1, as chiefly concerning what happens at the threshold of the premises and not what happens therein.

“Indiana’s burglary statute does not specifically provide that a person will be liable for acts committed after the breaking and entering,” Judge Melissa May wrote for the panel. “However, had the Indiana General Assembly wished to extend the liability this far, it could have easily drafted the burglary statute to encompass conduct that takes place after the breaking and entering.”

The state countered the Legislature did intend to extend the culpability for conduct committed after breaching the threshold. Specifically, the state pointed to the elevation of burglary to a Level 2 felony if the offense results in serious bodily injury to any person other than the defendant.

Consequently, the state argued, since the aggravating event of injury does not have to be part of the breaking and entering, the aggravating event of being armed does not have to coincide with the breaking and entering.

The Court of Appeals found the state was conflating key concepts, drawing no distinction between the voluntary acts comprising the offense and the result of those acts.

“This distinction is consistent with the text of the burglary statute. The burglary offense is elevated to a Level 2 felony if it is committed while armed with a deadly weapon,’’ May wrote, citing Ind. Code section 35-43-2-1(3)(A). “’Committed while’ contemplates the time when the breaking and entering occurs. Just because our legislature elevated the offense of burglary where the proscribed conduct results in serious bodily injury, it does not follow that our legislature modified the time at which a burglary is deemed complete. Our Indiana Supreme Court has consistently interpreted the burglary statute to mean that the burglary offense itself is complete upon entry.”

In a footnote, the appellate court pointed to Indiana’s “robust body of criminal law” which addresses events that happen beyond the threshold.

The Court of Appeals reversed Fix’s conviction of Level 2 felony burglary while armed with a deadly weapon and remanded the matter for the trial court to enter a conviction of a lesser-included form of burglary