65 N.E.3d 585
Ind. Ct. App.2016Background
- Frank Hancock was charged by the State with, among other offenses, two counts of unlawful possession of a firearm by a serious violent felon (SVF) based on prior Ohio convictions for second-degree burglary.
- Indiana's SVF statute treats out-of-state convictions as qualifying only if the foreign offense's elements are "substantially similar" to an Indiana serious violent felony.
- At trial the court questioned whether Ohio second-degree burglary (Ohio Rev. Code § 2911.12(A)(2)) is substantially similar to Indiana level-4 burglary (I.C. § 35-43-2-1(1)) and dismissed the two SVF counts.
- The dismissal prompted a mistrial; the State appealed the dismissal under I.C. § 35-38-4-2.
- The Indiana Supreme Court reviewed de novo the statutory meaning of "substantially similar," compared the offenses element-by-element, and concluded Ohio second-degree burglary is substantially similar to Indiana level-4 burglary.
- The Supreme Court reversed the trial court, reinstating the SVF qualifying convictions; Justice David dissented arguing Ohio's "any criminal offense" language makes the Ohio statute broader than Indiana's.
Issues
| Issue | Plaintiff's (State) Argument | Defendant's (Hancock) Argument | Held |
|---|---|---|---|
| Whether the elements of Ohio second-degree burglary are "substantially similar" to Indiana level-4 burglary for SVF purposes | Ohio burglary shares the same core elements (unlawful entry into an occupied structure with intent to commit an offense) and Ohio authority shows intent is typically inferred to be theft, aligning with Indiana's "felony or theft" requirement | Ohio's "any criminal offense" language is broader and can include non-theft misdemeanors (e.g., stalking), so the statutes are not substantially similar | Yes. Court held elements are substantially similar and reversed dismissal |
| Proper method to assess "substantially similar" | Compare statutory elements and relevant case law from both jurisdictions to identify common core characteristics | Same methodology argued but emphasizes textual breadth difference in Ohio statute | Court adopts element-by-element comparison, allowing use of foreign case law to determine how elements operate in practice |
| Whether Ohio's requirement that a person be present or likely to be present makes Ohio statute materially different | That element actually narrows Ohio's statute and therefore does not make it broader than Indiana's | Presence/likely presence is a different focus and may make outcomes diverge | Court found the presence/likely-presence requirement still relates to the same core regulated conduct and is substantially similar |
| Who bears responsibility for presenting foreign-law evidence | State (or party relying on foreign law) should present other jurisdictions' law; courts may take judicial notice but cannot be expected to research foreign law unaided | Agrees that foreign law may be presented but argues breadth of Ohio law was dispositive | Court emphasizes onus on party relying on foreign law and permits consideration of out-of-state case law in the substantial-similarity analysis |
Key Cases Cited
- Suggs v. State, 51 N.E.3d 1190 (Ind. 2016) (statutory construction standard: de novo review)
- Pierce v. State, 29 N.E.3d 1258 (Ind. 2015) (use plain and ordinary meaning in statutory interpretation)
- Taylor v. United States, 495 U.S. 575 (1990) (survey of modern statutory expansions of burglary beyond common law)
- State v. Gardner, 889 N.E.2d 995 (Ohio 2008) (Ohio interprets "any criminal offense" to include all offenses)
- Dumas v. State, 803 N.E.2d 1113 (Ind. 2004) (presumption that trial judge knows the law)
- Hayes v. State, 19 N.E.3d 831 (Ind. Ct. App. 2014) (discussion of burglary as an offense against habitation)