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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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