FOR PUBLICATION


ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

STEVE CARTER    SUSAN K. CARPENTER
Attorney General of Indiana                Public Defender of Indiana

CHRISTOPHER L. LAFUSE    ANNE-MARIE ALWARD
Deputy Attorney General    Deputy Public Defender
Indianapolis, Indiana    Indianapolis, Indiana

STATE OF INDIANA,       )

                             )
Appellant-Respondent,        )
                             )
vs.                          )    No. 48A02-0308-PC-723
                             )
DAVID LEON JONES,            )
                             )
Appellee-Petitioner.         )

Tr. p. 409. Because the phrase “constitutes breaking” instructs the jury that “breaking” is established if they conclude Jones unlocked or pushed open the door, this instruction is impermissible. See Sandstrom, 442 U.S. at 517 (disapproving of an instruction that constituted a “direction by the court to find [an element] once convinced of facts triggering the presumption”); see also McCorker, 797 N.E.2d at 265 (“a jury instruction cannot require a jury to find that the State has met its burden of proof on an element.”). We note that Judge Vaidik came to the same conclusion regarding a similar instruction, albeit with a slightly different rationale. Higgins v. State, 783 N.E.2d 1180, 1189-90 (Ind. Ct. App. 2003), trans. denied Vaidik, J. concurring.
C. Federal harmless error
A jury instruction that shifts the burden of proving an element to the defendant is subject to federal harmless error. Yates v. Evatt, 500 U.S. 391, 402 (1991). An instruction is harmless when a reviewing court concludes the record establishes beyond a reasonable doubt that the error did not contribute to the verdict. Id. at 402. To say that an error did not contribute to the verdict is not to say that the jury was totally unaware of the feature later held to have been error. Id. at 403. Rather, harmless error analysis requires the reviewing court, after reviewing the whole record, to make a judgment concerning the effect of the instruction upon reasonable jurors. Id. at 403-04.
The lack of prejudice resulting from the jury instruction at bar can best be demonstrated by distinguishing it from jury instructions disapproved of in Supreme Court cases governing this issue. The jury instruction in the seminal case of Sandstrom stated, “the law presumes that a person intends the ordinary consequences of his voluntary acts.” Sandstrom, 442 U.S. at 512. Implicit in Sandstrom’s disapproval of this instruction is the fact that there are a variety of conditions and circumstances capable of precluding someone from comprehending the ordinary consequences of his or her voluntary actions. See footnote See also Francis v. Franklin, 471 U.S. 307, 311 (1985) (concluding “a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts” to be an impermissible instruction); See footnote Yates, 500 U.S. at 397 (concluding an instruction that malice may be presumed by the use of a deadly weapon to be impermissible). See footnote
The similarity of the instructions disapproved of in the three above-cited cases is that the underlying facts used to establish the presumptions are not necessarily conclusive as to the ultimate establishment of the disputed elements. The same cannot be said for the instruction at bar. Proof that Jones moved the door in the slightest manner—the fact predicating the presumption at issue—indisputably establishes the element of breaking. See footnote
In other words, for the instruction at issue to have affected Jones’ jury, Jones’ jury would have first had to find that Jones moved the door. Such a predicate finding indisputably and irrefutably establishes the breaking element of residential entry, rendering the instruction harmless. See Griesinger v. State, 699 N.E.2d 279, 282 (Ind. Ct. App. 1998), trans. denied (the State need only introduce evidence from which the trier of fact could reasonably infer that the slightest force was used to gain entry).
This point is emphasized by Jones’ prejudice argument. Jones states that, “but for the instruction, the evidence could have been viewed to point to an authorized rather than unauthorized entry.” Br. of Appellee at 8. “Unauthorized” for purposes of residential entry merely denotes “illegal.” Griesinger, 699 N.E.2d at 282. Consequently, reference to “authorization” adds nothing to our analysis. Conversely, if Jones is referring to landowner consent when he uses the term “authorization,” “consent” is an affirmative defense which Jones had the burden of proving. See id.
Although the instruction at issue was improper, the absence of prejudice renders it harmless. Accordingly, Jones did not receive ineffective assistance of counsel.