                                                                                    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
