Justices find Ohio, Indiana burglary statutes are ‘substantially similar’

December 16, 2016

The Indiana Supreme Court Friday overturned a lower court’s decision to throw out a man’s serious violent felon charges, writing that statutes governing burglary convictions in Ohio and Indiana are “substantially” similar.

Frank Hancock was charged in Jefferson Superior Court with multiple offenses, including two counts of Level 4 felony unlawful possession of a firearm by a serious violent felon based on the state’s allegation that Hancock had previously been convicted of second degree burglary in Ohio.  The trial judge dismissed Hancock’s serious violent felon charges, writing that the Ohio burglary statute was not “substantially similar” to the same statute in Indiana.

Then, after the judge granted a mistrial, the state appealed the dismissal of the SVF counts, holding that the two statutes were substantially similar. The Ohio statute requires trespass by force, stealth or deception with the purpose to commit any criminal offense in an occupied structure of any person, while the Indiana statute requires a person to break and enter into a building or structure with the intent to commit a felony or theft in a building or structure of another person.

The Indiana Court of Appeals affirmed the trial court’s decision in January, but the majority of Indiana Supreme Court justices reversed the decision to dismiss the charges, holding that the two states' statutes are substantially similar.

Writing for the majority, Justice Robert Rucker said the court interpreted “substantially similar” to mean sharing common core characteristics that are largely alike in degree or extent, though not identical.

Rucker conceded that at first glance the difference between the “any criminal offense” requirement in Ohio and the “felony or theft” offense in Indiana would mean that the statutes were not substantially similar because Ohio’s threshold is broader than Indiana’s. But in Indiana, theft is a Class A misdemeanor and can be elevated to a felony with additional facts, and in Ohio, “any criminal offense” under the burglary statute includes various misdemeanors, Rucker said.

“Essentially, despite statutory language declaring entry may be accompanied by an intent to commit ‘any criminal offense,’ Ohio case authority makes clear that absent a different inference, the reasonable inference is that the defendant did so with the intent to commit the offense of theft,” Rucker wrote.  

Further, Rucker wrote that the court had no hesitancy concluding that the “break and enter” requirement in Indiana and the “trespass by force, stealth, or deception” requirement in Ohio are substantially similar.  The justices also held that the definitions of “occupied structure of any person” and “building or structure of another person” were nearly identical.

Finally, Rucker wrote that although Ohio’s statutory requirement for a likeliness that a person will be present during the robbery is a more stringent requirement than Indiana’s dwelling requirement for burglary, “the very same conduct violating the Ohio second degree burglary statute … would necessarily violate Indiana’s Level 4 felony burglary statute as well.”

But Justice Steve David wrote in a dissenting opinion that he believed the difference between the “any criminal offense” and “felony or theft” requirements shows that Ohio’s statute is broader than Indiana’s.

“Even though we can reasonably infer that one who forcibly enters a structure is there to commit a theft offense, this may not always be the case,” David wrote. “One could break into a home and commit a non-theft misdemeanor in Ohio (e.g., stalking), and be found guilty of burglary; however, this person would not be guilty of burglary under Indiana law.”

The case is State of Indiana v. Frank Hancock, 39S05-1604-CR-182.


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