49 N.E.3d 1084
Ind. Ct. App.2016Background
- Hancock was charged in Jefferson Superior Court with two counts of Level 4 felony possession of a firearm by a serious violent felon (SVF) based on a 2004 Ohio conviction for second-degree residential burglary.
- The State alleged Hancock’s Ohio burglary conviction qualified him as an SVF under Ind. Code § 35-47-4-5 because the out-of-state offense's elements are substantially similar to Indiana’s residential burglary.
- The trial court sua sponte compared the elements of Ohio Rev. Code § 2911.12 and Indiana Code § 35-43-2-1 and concluded they were not substantially similar.
- The trial court dismissed the two SVF firearms counts; the remaining charges were the subject of a mistrial motion and joint mistrial was granted.
- The State filed an interlocutory appeal arguing the trial court erred in finding the Ohio and Indiana burglary statutes not substantially similar.
- The Court of Appeals affirmed, holding the Ohio statute is broader and can criminalize conduct that Indiana’s statute would not, so the elements are not substantially similar as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hancock’s Ohio residential burglary conviction qualifies as a predicate SVF because its elements are "substantially similar" to Indiana burglary | Ohio burglary and Indiana burglary are functionally equivalent; Hancock’s Ohio conviction should qualify him as an SVF | Ohio’s statute is broader (trespass by stealth/consent and any criminal offense) and can cover conduct that Indiana’s break-and-enter plus felony/theft intent does not; therefore it is not substantially similar | Court held the statutes are not substantially similar and affirmed dismissal of the SVF firearm charges |
Key Cases Cited
- Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014) (standard for reviewing trial court’s dismissal of charging information)
- Mann v. State, 754 N.E.2d 544 (Ind. Ct. App. 2001) (court determines foreign law; de novo review of legal questions)
- Atkins v. State, 824 N.E.2d 676 (Ind. 2005) (compare elements of foreign offense to Indiana statute for substantial similarity)
- Hollingsworth v. State, 907 N.E.2d 1026 (Ind. Ct. App. 2009) (method for element comparison in out-of-state conviction contexts)
- South Bend Tribune v. South Bend Cmty. Sch. Corp., 740 N.E.2d 937 (Ind. Ct. App. 2000) (principle that legal questions receive de novo review)