Jan 22 2016, 8:24 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller James C. Spencer
Attorney General of Indiana Dattilo Law Office
Eric P. Babbs Madison, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, January 22, 2016
Appellant-Defendant, Court of Appeals Case No.
39A05-1506-CR-633
v. Interlocutory Appeal from the
Jefferson Superior Court
Frank Hancock, The Honorable Fred H. Hoying,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
39D01-1410-F4-857
Mathias, Judge.
[1] Frank Hancock (“Hancock”) was charged with two counts of Level 4 felony
possession of a firearm by a serious violent felon (“SVF”) in the Jefferson
Superior Court. However, the trial court determined that Hancock was not an
SVF because his prior conviction for residential burglary in Ohio was not
Court of Appeals of Indiana | Opinion 39A05-1506-CR-633 | January 22, 2016 Page 1 of 6
“substantially similar” to residential burglary in Indiana. The State of Indiana
brings this interlocutory appeal and argues that the trial court erred when it
determined that the elements of residential burglary in Ohio are not
“substantially similar” to those in Indiana.
[2] We affirm.
Facts and Procedural History
[3] On October 6, 2014, the State charged Hancock with two counts of Level 4
felony possession of a firearm by a SVF, Level 5 felony escape, Class A
misdemeanor carrying a handgun without a license, Class B misdemeanor
possession of marijuana, Level 6 felony theft, and Class A misdemeanor theft.
[4] The possession of a firearm by an SVF charges alleged that Hancock was an
SVF under Indiana Code section 35-47-4-5 because he was convicted in Ohio in
the Hamilton County Court of Common Pleas of second degree burglary under
cause number B 0308832 on January 9, 2004. The State of Ohio alleged that
Hancock committed three separate residential burglaries and was indicted by a
grand jury.
[5] A jury trial was held on May 12 and 13, 2015. The trial court raised sua sponte
the issue of whether the elements of Ohio’s residential burglary statute were
substantially similar to the elements of Indiana’s residential burglary statute.
After consideration, the court determined that the Ohio and Indiana statutes
were not substantially similar as to the elements. Hancock then moved to
Court of Appeals of Indiana | Opinion 39A05-1506-CR-633 | January 22, 2016 Page 2 of 6
dismiss the two counts of Level 4 felony possession of a firearm by an SVF,
which the trial court granted. The trial court also granted a joint motion for
mistrial on the remaining charges based on the State’s belief that the jury had
been prejudiced during voir dire due to references made to the charges that the
court dismissed. The State now appeals the dismissal of Hancock’s felony
possession of a firearm by a SVF charges.
Discussion and Decision
[6] The State argues that the trial court erred when it dismissed the Level 4 felony
possession of a firearm by an SVF charges against Hancock because his prior
conviction for second degree residential burglary in Ohio is substantially similar
to the elements of Level 4 felony residential burglary in Indiana. We review a
trial court’s ruling on a motion to dismiss a charging information for an abuse
of discretion, which occurs only if a trial court’s decision is clearly against the
logic and effect of the facts and circumstances. Pavlovich v. State, 6 N.E.3d 969,
974 (Ind. Ct. App. 2014). The determination of foreign law shall be made by
the court and not by the jury. Ind. Code § 34-38-4-3; Mann v. State, 754 N.E.2d
544, 549 (Ind. Ct. App. 2001). We review questions of law under a de novo
standard and owe no deference to a trial court’s conclusions. Mann, 754 N.E. at
549 (citing South Bend Tribune v. South Bend Cmty. Sch. Corp., 740 N.E.2d 937,
938 (Ind. Ct. App. 2000)).
[7] Under Indiana Code section 35-47-4-5:
Court of Appeals of Indiana | Opinion 39A05-1506-CR-633 | January 22, 2016 Page 3 of 6
(a) As used in this section, “serious violent felon” means a person
who has been convicted of:
(1) committing a serious violent felony in:
(A) Indiana; or
(B) any other jurisdiction in which the elements of
the crime for which the conviction was entered are
substantially similar to the elements of a serious
violent felony.
In Indiana, Level 1, 2, 3, or 4 felony burglary is defined as a serious
violent felony. Ind. Code § 35-47-4-5(b) (15).
[8] To determine whether the Ohio burglary statute and the Indiana burglary
statute are substantially similar, we must compare the elements of the Ohio
statute under which Hancock was convicted in 2004 to the elements of the
current Indiana statute. See State v. Atkins, 824 N.E.2d 676, 678 (Ind. 2005)
(citing Hollingsworth v. State, 907 N.E.2d 1026, 1030 (Ind. Ct. App. 2009). Ohio
Revised Code Section 2911.12 provides in relevant part:
(A) No person, by force, stealth, or deception, shall do any of the
following . . .
(2) Trespass in an occupied structure or in a separately
secured or separately occupied portion of an occupied
structure that is a permanent or temporary habitation of any
person when any person other than an accomplice of the
offender is present or likely to be present, with purpose to
commit in the habitation any criminal offense.
Court of Appeals of Indiana | Opinion 39A05-1506-CR-633 | January 22, 2016 Page 4 of 6
Burglary under this section is a felony of the second degree. Ohio Rev.
Code § 2911.12(D). Under Indiana Code section 35-43-2-1:
A person who breaks and enters the building or structure of
another person, with intent to commit a felony or theft in it,
commits burglary, a Level 5 felony. However, the offense is a
Level 4 felony if the building or structure is a dwelling.
[9] Both statutes have an act element and an intent element. The Ohio statute
requires trespass by force, stealth, or deception with the purpose to commit any
criminal offense, whereas, the Indiana statute requires a person to break and
enter into a building or structure with the intent to commit a felony or theft.
Although the statutes might seem substantially similar at first glance, when the
same factual situation is applied to both statutes, two different legal outcomes
are possible based on whether the incident occurred in Ohio or Indiana.
[10] The trial court provided an illustration of this problem at the May 12, 2015
hearing:
Let’s say a person goes to a home in Indiana and says they want
to check your electricity, a typical theft thing in Indiana. It
happens a lot. You let them in and while you’re there, they steal
your jewelry. Is that a burglary in Indiana? It is certainly stealth
in Ohio. It certainly would qualify for Burglary, Level 2 in Ohio,
but in Indiana? I think not.
Tr. p. 7. Other hypotheticals exist that demonstrate either the criminal’s
entry is allowed by the resident or the crime committed is a
Court of Appeals of Indiana | Opinion 39A05-1506-CR-633 | January 22, 2016 Page 5 of 6
misdemeanor, in which case the Ohio burglary statute would apply but
Indiana’s burglary statute would not.
[11] The State argues that the elements of the Ohio and Indiana statutes are
functionally equivalent. However, the Ohio residential burglary statute is much
broader, and we are presented with different outcomes based on whether the
situation occurred in Ohio or Indiana. Therefore, it is clear that the Ohio and
Indiana residential burglary statutes are not substantially similar as a matter of
law.
[12] We conclude that the trial court properly dismissed Hancock’s Level 4 felony
possession of a firearm by a SVF charges after it determined that the elements
of the Ohio and Indiana residential burglary statutes were not substantially
similar.
[13] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 39A05-1506-CR-633 | January 22, 2016 Page 6 of 6