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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. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  2. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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