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Burglary, criminal mischief sentences double jeopardy, split COA rules

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A man ordered to serve 18 years in prison will be resentenced after an Indiana Court of Appeals panel ruled Friday that his convictions of Class C felony burglary and Class A misdemeanor criminal mischief constituted double jeopardy.

The majority ordered the mischief conviction and sentence vacated in Thomas W. Oster, II v. State of Indiana, 84A05-1208-CR-437, but the ruling will not reduce the time Oster serves. He was sentenced to seven years on the burglary conviction and one year for the mischief charge served concurrently. A habitual offender adjudication enhanced the sentence 11 years.

Oster was arrested when he was found with fresh abrasions and cuts, and he was carrying a pouch with screwdrivers and a pair of pliers shortly after police responded to the sound of shattering glass and a break-in at the Large Ink printing and sign shop in Terre Haute. A man who rented studio space there and was inside at the time called 911 when he heard the disturbance, and a cellphone left near the scene of the burglary contained photos of Oster.

The state conceded the double-jeopardy violation, but Oster failed to persuade the marjority on his other arguments: that the state failed to present evidence to sustain the burglary conviction; that it failed to support t he habitual offender finding; and that the jury was erroneously instructed.  

“Common sense dictates that when one breaks into a retail business after-hours, it is more likely done with the intent to commit theft than, say, if one breaks into an empty warehouse,” Judge Cale Bradford wrote in the majority opinion joined by Judge Elaine Brown. Bradford wrote that because Oster lived in a nearby mission, he had no need to seek alternate shelter on the January 2012 evening when the break-in occurred.

“Oster’s possession of burglary tools, the nature of the structure into which he broke, and the absence of any indication that he broke into Large Ink for a reason other than theft are independent evidentiary facts sufficient to sustain his burglary conviction.”

Judge Patricia Riley didn’t see it that way, though, and found the state failed to prove the intent to commit a felony element of a burglary charge, citing Freshwater v. State, 853 N.E.2d 941, 942 (Ind. 15 2006) and Justice v. State, 530 N.E.2d 295, 297 (Ind. 1988).

“Here, as in Freshwater and Justice, the State has failed to prove a specific fact that provides a solid basis to support a reasonable inference that Oster had the specific intent to commit a felony. The method by which Oster entered the building suggests nothing more than that he broke in,” Riley wrote. “… Except for the broken window, nothing in the business was disturbed. The fact that Oster was apprehended with two screwdrivers and a pair of pliers does not change this result.

“Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge. I would therefore reverse Oster’s burglary conviction.”
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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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