Wade Stacy, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Wade Stacy was convicted of burglary and theft for breaking into a vacant home and stealing keys to a motorcycle. Stacy appeals and raises two issues for our review, which we restate as the following single issue: Whether the trial court committed fundamental error in instructing the jury.

[2] We affirm.

Facts and Procedural History

[3] Prior to Willie Howard's death, he and Stacy were friends. After Willie's death, Willie's brother Henry Howard was named executor of his estate, which included Willie's house in Knox, Indiana (the “House”). Henry lived out of state, so while the estate was in probate, his daughter Tari Vanderheof “watch[ed] over” the House. Id. at 79. Vanderheof installed cameras inside and outside of the House to accomplish that. At approximately 4:00 a.m. on January 13, 2025, Vanderheof was alerted by the cameras that someone was in the House, so she called 911. Deputy Shelby Pickens with the Starke County Sheriff's Department reported to the house and observed Stacy walking toward his vehicle, which was parked in the driveway. Deputy Pickens found the garage door unlocked and entered the House to “clear” it. Id. at 97. The House “looked like it had been gone through” and the passenger door of a corvette parked in the garage was “halfway opened.” Id. at 98. Vanderheof arrived at the House while Deputy Pickens was on scene and showed him “some pictures that were taken off of a camera that she had placed inside the house previous to this incident.” Id. at 99. After Deputy Pickens determined one of the photographs showed Stacy inside the House, Deputy Pickens placed Stacy under arrest. While searching Stacy, Deputy Pickens found the keys to Willie's Harley Davidson motorcycle in Stacy's pocket.

[4] The State charged Stacy with burglary as a Level 5 felony ¹ (the “Burglary Count”), residential entry as a Level 6 felony,² and theft as a Level 6 felony ³ (the “Theft Count”). The charging information for the Burglary Count alleged, “[O]n or about January 13, 2025, ․ Stacy did break and enter the building or structure of Henry Howard, to-wit: a house located [in] Knox, Indiana; with the intent to commit Theft therein ․” Appellant's App. Vol. II at 11. The charging information for the Theft Count alleged in relevant part, “[O]n or about January 13, 2025, ․ Stacy did knowingly or intentionally exert unauthorized control over the property of Henry Howard, to-wit: Keys to a Motorcycle ․ with the intent to deprive Henry Howard of any part of the use or value of the property.” Id. at 12.

[5] The trial court instructed the jury that to find Stacy guilty of the Burglary Count, the jury needed to conclude the State proved beyond a reasonable doubt that Stacy “knowingly or intentionally ․ broke and entered ․ the building or structure of Henry Howard ․ with the intent to commit theft” (the “Burglary Instruction”). Appellant's App. Vol. II at 36. As to the Theft Count, the trial court instructed the jury that to find Stacy guilty, it needed to conclude the State proved beyond a reasonable doubt that Stacy “knowingly or intentionally ․ exerted unauthorized control ․ over the property of Henry Howard, that is: motorcycle keys, ․ with intent to deprive Henry Howard of any part of its value or use” (the “Theft Instruction”). Id. at 38.

[6] The jury found Stacy guilty of the Burglary and Theft Counts. The trial court sentenced Stacy to five years of incarceration with two of those years suspended to probation. This appeal ensued.

Discussion and Decision

The Trial Court Did Not Commit Fundamental Error in Instructing the Jury

[7] Stacy claims that the trial court erred in instructing the jury; however, Stacy did not object to the jury instructions at trial. “The failure to tender an instruction or to object at trial to the omission of an instruction generally waives any claim of error on appeal.” Paul v. State, 189 N.E.3d 1146, 1159 (Ind. Ct. App. 2022) (quoting Abd v. State, 120 N.E.3d 1126, 1136 (Ind. Ct. App. 2019), trans. denied), trans. denied, 196 N.E.3d 685 (Ind. 2022). “[W]e may review an instruction for fundamental error under a ‘narrow exception to waiver.’ ” Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024) (quoting Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)). “An error is fundamental if it ‘made a fair trial impossible’ or constituted a ‘clearly blatant violation of basic and elementary principles of due process that presented an undeniable and substantial potential for harm.’ ” Id. (quoting Miller, 188 N.E.3d at 874). If the challenged instruction “does not mislead the jury as to the correct understanding of the law, there is no fundamental error.” Milo v. State, 137 N.E.3d 995, 1004 (Ind. Ct. App. 2019) (citing Barthalow v. State, 119 N.E.3d 204, 211 (Ind. Ct. App. 2019)), trans. denied.

Stacy challenges the Burglary and Theft Instructions. Specifically, Stacy claims that because Henry was merely Willie's estate executor and did not personally own the House Stacy burgled or the property contained therein, the trial court erred by instructing the jury on the elements needed to prove burglary and theft.

[8] First, Stacy contends the “trial court erred when it instructed the jury that [ ] Stacy was accused of breaking and entering the property of Henry Howard because the [the House] was not Henry Howard's.” Appellant's Br. at 11. In order to convict Stacy of burglary, the State had to prove that he broke and entered the “building or structure of another person, with intent to commit a felony or theft in it.” Ind. Code § 35-43-2-1. “The phrase ‘building or structure of another person’ is not the exclusive equivalent of ownership ․ ‘[I]t is well settled that burglary is a crime against possessory interest or rightful possession of the premises.’ ” Wallace v. State, 896 N.E.2d 1249, 1252 (Ind. Ct. App. 2008) (second alteration in original) (quoting Jay v. State, 246 Ind. 534, 536, 206 N.E.2d 128, 129 (1965)), trans. denied.

[9] Here, the trial court's Burglary Instruction directly incorporated the language of the charging information and provided that the State must prove, among other things, that Stacy entered the “building or structure of Henry.” Appellant's App. Vol. II at 36. The question raised, then, is whether by means of Henry's role as executor of Willie's estate, Henry had a possessory interest in the House. See Wallace, 896 N.E.2d at 1252.

[10] A personal representative has the “right to take, and shall take, possession of all the real and personal property of the decedent.” I.C. § 29-1-13-1. An executor is a personal representative. Id. § 29-1-1-3(30). Henry therefore had rightful possession of the House into which Stacy broke and entered. Accordingly, the Burglary Instruction did not “mislead the jury” as to the law, Milo, 137 N.E.3d at 1004, and there is no fundamental error.

[11] Second, Stacy argues that the trial court erred when it instructed the jury that Stacy was accused of “exerting unauthorized control over Harley-Davidson keys belonging to Henry Howard” because as executor, “Howard Henry was not a person from whom [ ] Stacy could have taken the Harley-Davidson keys.” Appellant's Br. at 11. In order to convict Stacy of theft, the State had to prove that he “knowingly or intentionally exert[ed] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use.” I.C. § 35-43-4-2.⁴ As the State points out, “the well[-]established rule [is] that it is not necessary to prove absolute title or ownership” to support a theft charge; rather, evidence is sufficient if it “shows the alleged owner to be properly in possession as a bailee, agent, trustee, executor, or administrator,” Raines v. State, 514 N.E.2d 298, 299 (Ind. 1987) (citing Gunder v. State, 250 Ind. 689, 693, 238 N.E.2d 655, 658 (1968)).

[12] Here, the trial court's Theft Instruction directly incorporated the language of the charging information and provided that the State must prove, among other things, that Stacy “exerted unauthorized control ․ over the property of Henry Howard ․ with intent to deprive Henry Howard of any part of its value or use.” Appellant's App. Vol. II at 38. Henry properly possessed the keys by virtue of his role as executor of Willie's estate. See Raines, 514 N.E.2d at 299. Accordingly, the Theft Instruction did not “mislead the jury” as to the law, Milo, 137 N.E.3d at 1004, and there is no fundamental error.

[13] In sum, the trial court did not fundamentally err in instructing the jury. We affirm the trial court on all issues raised.

[14] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-2-1.

2.   Before closing arguments, Stacy successfully moved for a directed verdict on this charge.

3.   I.C. § 35-43-4-2(a)(1)(C).

4.   The State also alleged that Stacy had a prior unrelated conviction for theft, criminal conversion, robbery, or burglary, which elevated the Theft Count to a Level 6 felony. Stacy does not challenge that he had a prior qualifying conviction.

Felix, Judge.

May, J., and Mathias, J., concur.