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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. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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