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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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