Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, FILED
Mar 13 2012, 9:32 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSHUA LOVE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1107-CR-629
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
The Honorable Anne M. Flannelly, Commissioner
Cause No. 49F09-1011-FD-85977
March 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Joshua Love appeals his conviction of escape as a class D felony and his
adjudication as a habitual offender.
We affirm.
ISSUE
Whether the trial court erred in instructing the jury.
FACTS
In April 2010, Love entered into a Marion County Community Corrections
Electronic Monitoring Contract (“the Contract”) for home detention to serve an executed
sentence for a class C robbery conviction. The Contract provided in relevant part as
follows:
1. YOU SHALL be confined inside (within the walls of your residence:
front door to back) your home at all times . . . .
* * *
2. . . . If you leave your residence without permission Home Detention . . .
you will be considered an Absconder. A Violation with a warrant
request will be requested. Further, the Prosecutor’s Office may file a
charge of Escape/FD against you.
(State’s Exhibit 3).
In November 2010, Indianapolis Metropolitan Police Department Officer George
June drove by Love’s house and noticed him standing outside of his house at the curb
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talking with four or five men. The officer radioed for assistance and returned to Love’s
house with two other officers. The officers saw Love sitting in the driver’s side of a
vehicle parked in his yard. When Officer June approached the vehicle, he immediately
smelled marijuana. A bag containing 11.32 grams of marijuana was also in plain view.
Love was convicted by a jury of escape as a class D felony and possession of
marijuana as a class A misdemeanor. He was also adjudicated to be a habitual offender.
Love appeals his conviction of escape as well as the habitual offender adjudication.
DECISION
Love’s sole argument is that the trial court erred in instructing the jury.
Specifically, he contends that the trial court erred in failing to instruct the jury on the
lesser included offense of unauthorized absence from home detention, a class A
misdemeanor.
In resolving this issue, we initially observe that the trial court has broad discretion
in the manner of instructing the jury and we review the trial court’s decision only for an
abuse of discretion. Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). If the
trial court fails to cover some pertinent point in instructing the jury, it is the obligation
and the duty of the party desiring to have that point covered in the instruction to tender
his own instruction on the same. Nolan v. State, 863 N.E.2d 398, 404 (Ind. Ct. App.
2007), trans. denied. Moreover, in criminal cases, a party must tender to the trial court in
writing any instructions the party believes are applicable to the case. Ind. Crim. Rules
8(A) and (D). Failure to tender such an instruction waives the right to object to that point
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not being covered. Nolan, 863 N.E.2d at 404. Love failed to tender such an instruction
to the trial court, and he has therefore waived review of this issue.
Waiver notwithstanding, we find no error. Kilgore v. State, 922 N.E.2d 114, 119
(Ind. Ct. App. 2010), trans. denied, is dispositive. There, Kilgore was placed on home
detention to be monitored by Tippecanoe County Community Corrections (“TCCC”) for
sentencing purposes. He failed to report to the TCCC officer in charge of his case, made
an unauthorized trip from Lafayette to Muncie, and was subsequently convicted of escape
and adjudicated to be a habitual offender.
On appeal, Kilgore argued that the trial court erred in failing to give his tendered
jury instruction on unauthorized absence from home detention as a lesser included
offense of escape. First this Court determined that unauthorized absence from home
detention is not a lesser included offense of escape because the two statutes contain
materially different elements. Id. at 119.
This Court further stated that the offense of unauthorized absence from home
detention applies only in cases where the defendant has been placed on home detention as
a condition of probation. Id. (citing Brown v. State, 894 N.E.2d 598, 600-01 (Ind. Ct.
App. 2008)). Defendants serving executed sentences on home detention are not entitled
to an instruction on that offense. Id. Because Kilgore was serving an executed sentence
on home detention when he violated the detention order by leaving his residence, we
concluded that he was not entitled to an instruction on unauthorized absence from home
detention. Id.
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Here, as in Kilgore, Love was serving an executed sentence on home detention
when he violated the Contract by leaving his house. He was therefore not entitled to an
instruction on unauthorized absence from home detention. See id. The trial court did not
err in failing to give such an instruction.
Affirmed.
BAKER, J., and BAILEY, J., concur.
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