FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

JEFFREY L. SANFORD    JEFFREY A. MODISETT
South Bend, Indiana    Attorney General of Indiana

             ROSEMARY L. BOREK
            Deputy Attorney General
            Indianapolis, Indiana

ROBERT GRIESINGER,             )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No.  71A03-9710-CR-383
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

                                

    II.    Whether the trial court erred by refusing Griesinger's tendered jury instruction on the lesser included offense of confinement as a Class D felony.

    III.    Whether the trial court erred by refusing Griesinger's tendered jury instruction which would have advised the jury that consent negates
        a confinement charge.

    We affirm.

Griesinger had threatened to cut her throat unless she cooperated with him. She also told the police that he had taken her to a western part of the county where he stopped the car, ordered her to her knees, and thrust his penis into her mouth. After that, he pushed her onto the hood of his car and raped her.
    Based on Babbs' initial, distressed conversation with the police, the State charged Griesinger with rape, criminal deviate conduct, confinement, and residential entry. In Babbs' pre-trial deposition, however, she recanted her earlier allegations. In the deposition, Babbs claimed that Griesinger never threatened her with the knife, he merely held it in his hand. Further, she said that her sexual relations with Griesinger that night had been consensual. Due to Babbs' new testimony, the State dismissed the rape and criminal deviate conduct charges, and revised the confinement charge.
    At trial, Babbs testified that Griesinger lived with her off and on, and that he had key to her house but not to the storm doors. On the day prior to the incident Griesinger had left Babbs' home to return to his mother's home. Babbs testified that Griesinger telephoned her a couple of times the next evening, and that she told him she didn't feel well. During the telephone calls, Griesinger never said he was coming to Babbs' house. Later that night, Babbs awoke to a scratching sound on her window screen. According to her testimony, she jumped up, went downstairs and told her sister that Griesinger was in the house. She then went outside, unlocking her front door to do so. She testified that Griesinger came outside and grabbed her by the back of her hair. She said he held a knife in his hand but never pointed it at her. She further said that when Griesinger took her to his car, he put the knife

between his teeth in order to retrieve his keys. While the knife was in his mouth, Babbs grabbed it and threw it aside.
    Griesinger then testified. He said he had come to Babbs' house that night because he was concerned about her health. Throughout their relationship, Griesinger said, Babbs demanded that he check on her regularly because she had insulin-dependent diabetes. He further said that Babbs was afraid she would lapse into a diabetic coma , so she insisted that he enter the house in whatever way necessary to check on her. According to Griesinger, he entered the house through the upstairs window that night because no one answered his knocks on the door, and he felt he must comply with Babbs' entreaty that he check on her.
    The jury convicted Griesinger as charged.

Supplemental Record at 42. Griesinger argues that the trial court erred by refusing the instruction, because the instruction correctly stated the law, the evidence supported the instruction, and no other instruction informed the jury of the consent issue.
    The State responds that the instructions as given adequately informed the jury of the consent issue. According to the State, the following instructions advised the jury of the consent defense:
    "Lack of consent is not an element of the offense of Residential Entry and the State is not required to prove lack of consent. A defendant's belief that he has permission to enter must be reasonable in order for the defendant to avail himself of the defense of consent."

Supplemental Record at 35.

    "Where a defense which negates an element of an offense has been raised, the State has the burden of disproving that defense beyond a reasonable doubt. The State may meet this burden by providing additional evidence to rebut the defense or by relying upon the evidence of its case-in-chief."

Supplemental Record at 36.    

    To resolve the jury instruction issue, we must determine whether, as Griesinger contends, lack of consent is an element of the crime of residential entry, or whether, as the State contends, consent to entry is a defense. If consent is a defense, the trial court's instructions were correct. If, however, lack of consent is an element of the crime, the trial court's instructions improperly failed to inform the jury of the State's burden of proving lack of consent.
    The controlling statute contains no consent element. The statute reads:     "A person who knowingly or intentionally breaks and enters the dwelling of another person commits residential entry, a Class D felony." IC 35-43-2-1.5. Notwithstanding the statutory language, Griesinger contends that lack of consent is an element of the crime, because lack of consent is inherent in the term "break." In support of this contention, Griesinger cites a burglary case, Smith v. State, 477 N.E.2d 857 (Ind. 1985). As Griesinger points out, the court stated in Smith that there is no "break"when the owner consents to entry. Id. at 862. The court went on to explain, however, that consent to enter is a defense to a burglary charge. Id. at 863.
     Similarly, in McKinney v. State, 653 N.E.2d 115 (Ind. Ct. App. 1995), a residential entry case, the court stated that "in order to establish that a breaking has occurred, the State need only introduce evidence from which the trier of fact could reasonably infer that the slightest force was used to gain unauthorized entry." Id. at 117 (emphasis added). When read in isolation, the court's statement suggests that lack of consent is an element of the crime. The full opinion makes clear, though, that consent arises only as a defense. The court

in McKinney pointed out that lack of consent is not an element of residential entry -- rather, the court said, the defendant must prove consent as a defense. Id. at 118.
    Further, a review of the precedent containing the words "unauthorized entry" indicates that the courts used the term "unauthorized" as a synonym for the term "illegal." Used in this manner, "unauthorized" carries no reference to authorization from the owner of the dwelling. Instead, in this context, "unauthorized" means "not authorized by the State", i.e., illegal. The reference to illegality originated in Willard v. State, 272 Ind. 589, 400 N.E.2d 151 (1980): "'[b]reaking and entering' in this context connotes an illegal entry, even if by opening an unlocked door or window." Id. 272 Ind. at 603, 400 N.E.2d at 160 (emphasis added). The next case adopting Willard substituted the word "unauthorized" for the word "illegal" without any indication that a change in meaning was intended. See Howard v. State, 433 N.E.2d 753, 756 (Ind. 1982). The subsequent line of cases continued using the word "unauthorized" without reference to any consent issue. See Howard v. State, 433 N.E.2d 753, 756 (Ind. 1982) , cited in Trice v. State, 490 N.E.2d 757, 758-59 (Ind. 1986), cited in England v. State, 530 N.E.2d 100, 101 (Ind. 1988), cited in Bellmore v. State, 602 N.E.2d 111, 124-25 (Ind. 1992), cited in McKinney v. State, 653 N.E.2d 115, 117 (Ind. Ct. App. 1995).
    When viewed in the context of this precedent, the term "unauthorized entry" is seen to be synonymous with "illegal entry" in the case law definitions of the term "break." Use of the term "unauthorized entry" is adequate for cases in which consent is not an issue, but is confusing in cases in which the defendant raises the issue of consent. Here, rote citation

of the definitional precedent would yield the incorrect result of placing the burden on the State to prove lack of consent. Accordingly, we apply the ultimate holdings in the relevant precedent, which state that consent is a defense to residential entry. See Smith v. State, 477 N.E.2d 857, 863 (Ind. 1985), McKinney v. State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995).
    In addition to the statutory language and the precedent discussed above, a comparison of the residential entry statute with the criminal trespass statute indicates that the legislature purposefully excluded the consent aspect when defining residential entry. As noted above, the residential entry statute contains no reference to consent. In contrast, the criminal trespass statute expressly identifies lack of consent as an element: "A person who, not having a contractual interest in the property, knowingly or intentionally enters the dwelling of another person without the person's consent, commits criminal trespass." IC 35-43-2- 2(a)(5) (emphasis added).
    Had the legislature intended to require the State to prove lack of consent in residential entry cases, the words "without the person's consent" could easily have been inserted in the definition of the crime. The absence of those words indicates that consent must be raised as a defense, and that once the defense is raised the State has the burden of disproving the defense beyond a reasonable doubt. Here, the State's jury instructions adequately conveyed these concepts to the jury, while Griesinger's tendered instruction erroneously indicated that lack of consent is an element of residential entry. The trial court did not err in refusing Griesinger's tendered instruction.

give the Class D instruction. In other words, is there a serious evidentiary dispute as to whether the knife that Griesinger held could be used as a deadly weapon?
     There is no such dispute. Although Babbs testified that Griesinger never held the knife to her, she also testified that when she had the chance, she grabbed the knife and hurled it away. Record at 203. Further, Babbs' sister testified that she heard Babbs screaming "Robert, no!". Record at 225. The sisters' testimony supports an inference that Griesinger's knife could be used as a deadly weapon. Conversely, the evidence contained only two items that could conceivably create an evidentiary dispute about whether the knife was a deadly weapon: (1) Griesinger's statement that he used the knife to work on his car; and (2) Griesinger's statement that he kept the knife with him that night to protect himself and Babbs. This evidence is not sufficient to raise a serious evidentiary dispute about the knife, because Griesinger's use of the knife to repair his car or to defend himself does not negate his use of the knife as a deadly weapon. Accordingly, the trial court did not err in refusing the instruction on confinement as a Class D felony.

the will or consent of the person removed." Supplemental Record at 53. The trial court refused the instruction.
    Griesinger contends the refusal was prejudicial error. His factual support for this contention is Babbs' testimony that she would have gone with Griesinger if he had stopped holding on to her. Record at 203-04. His legal support is Johnson v. State, 262 Ind. 516, 519, 319 N.E.2d 126, 128 (1974), which he cites for the proposition that proof of confinement requires proof that the defendant removed the victim from one place to another without the victim's consent.
    In Johnson, our supreme court addressed consent as it related to kidnapping, IC 35-1- 55-1 (1971). The Johnson court stated that "[t]he use of force is not limited to occasions when the victim physically struggles to get away . . . the evidence must support the victim's avowal of non-consent." 262 Ind. at 519, 319 N.E.2d at 128; see also Thompson v. State, 215 Ind. 129, 19 N.E.2d 165 (1939). More recently, however, our supreme court clarified consent as it relates to confinement. The court explained that there are two separate confinement offenses: non-consensual restraint and confinement by removal. Kelly v. State, 535 N.E.2d 140, 141 (Ind. 1989). The court further explained that lack of consent is not an element of a charge of confinement by removal. The court said:
    "Under section one of the statute, the act of nonconsensual confinement is prohibited, irrespective of any intent to remove the individual to another location; thus, the elements of the first type of confinement would be:
        (1) knowingly or intentionally,
        (2) confining another person,
        (3) without their consent.

    But lack of consent is not an element of confinement under section two. Instead, it would be necessary to show the accused:
        (1) knowingly or intentionally,
        (2) removed another person from one place to another,
        (3) by fraud, or enticement, force or threat of force."    

Kelly v. State, 535 N.E.2d 140, 141 (quoting Addis v. State, 404 N.E.2d 59, 60 (Ind. App. 1980)).
    Here, the trial court correctly instructed the jury on the elements of confinement by removal. The court's instruction stated that to find Griesinger guilty, the jury must find that
    "1. The defendant, Robert Griesinger;
     2. Knowingly,
     3. While armed with a deadly weapon;
     4. Removed Pamela Babbs, from one place to another;
     5. By force or the threat of force."

Supplemental Record at 24. As the trial court noted, Griesinger's tendered instruction was confusing in that it referenced the concept of consent, which is not an element of confinement by removal. Accordingly, the trial court did not err in refusing Griesinger's tendered instruction.
    Affirmed.
SULLIVAN, J., and BAKER, J., concur.

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