Jennifer Nelson for www.theindianalawyer.com
Because the elements of the Ohio residential burglary statute used as the basis to charge a defendant as a serious violent felon in Indiana are not substantially similar to the Indiana statute, the Indiana Court of Appeals affirmed dismissal of the defendant’s SVF charges.
Frank Hancock faced multiple counts in Jefferson Superior Court, including two Level 4 felony possession of firearm by a serious violent felon charges. Those charges allege because he was convicted in Ohio of second-degree burglary in 2004, Hancock is a SVF in Indiana.
At his trial, the judge raised sua sponte the issue of whether the elements of the Ohio residential burglary statute were substantially similar to Indiana’s statute. The judge determined they were not, then granted Hancock’s motion to dismiss those charges. Hancock’s remaining charges were dismissed after a mistrial.
The state on interlocutory appeal challenged the dismissal of the possession of a firearm by a SVF charges.
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. 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,†Judge Paul Mathias wrote in State of Indiana v. Frank Hancock, 39A05-1506-CR-633.
“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.â€
