MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 18 2019, 9:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Charles W. Lahey Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Justice K. Kiama, April 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1809 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1712-F6-1133 Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Justice Kiama (Kiama), appeals following his conviction for residential entry as a Level 6 felony, Ind. Code § 35-43-2-1.5. [2] We affirm. ISSUE [3] Kiama presents one issue on appeal, which we restate as: Whether the trial court abused its discretion when it refused his tendered instruction on criminal trespass as a lesser-included offense of residential entry. FACTS AND PROCEDURAL HISTORY [4] Kiama and Moses Mutheme (Mutheme) were long-time friends who had lived together on and off over the course of their friendship. On December 5, 2017, Kiama and Mutheme were involved in a physical altercation at Mutheme’s house on Huey Street in South Bend, Indiana, during which Kiama was ejected from the premises. As a result of this altercation, Kiama required stitches to close a wound on his face. [5] On December 8, 2017, Kiama and a second man went to Mutheme’s home. Kiama walked onto the porch of Mutheme’s home while the second man waited at the gate. Kiama knocked on the door, but no one answered. Kiama was observed by a neighbor bending down to pick up an object from the porch with which he broke a large picture window located next to the front door. Kiama then crawled inside the window. The interior of the windows of Court of Appeals of Indiana | Memorandum Decision 18A-CR-1809 | April 18, 2019 Page 2 of 7 Mutheme’s home had been winterized with plastic coverings. As Kiama crawled through the window, he pierced the plastic covering to gain entry. A short time later, Kiama exited through Mutheme’s front door and walked to the street corner with the second man. The neighbor who had witnessed these events alerted the authorities, who arrived and arrested Kiama. [6] On December 11, 2017, the State filed an Information, charging Kiama with Level 6 felony residential entry. On April 30, 2018, the trial court held Kiama’s jury trial. Before the trial commenced Kiama tendered a jury instruction on criminal trespass as a lesser-included offense of residential entry. Kiama testified that he had knocked on the window of Mutheme’s home because he ...
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