Burke v. State , 49A02–1006–CR–660.

• Decision Date: 12 May 2011
• Docket Number: No. 49A02–1006–CR–660.,49A02–1006–CR–660.
• Citation: 943 N.E.2d 870
• Parties: Joshua BURKE, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

943 N.E.2d 870

Joshua BURKE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1006–CR–660.

Court of Appeals of Indiana.

Feb. 21, 2011.Transfer Denied May 12, 2011.

Victoria L. Bailey, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Joshua Burke appeals his conviction for Class B felony burglary. Burke contends that Indiana Code section 35–43–2–1(1)(B)(ii), which enhances burglary from a Class C felony to a Class B felony if the building or structure burgled is a structure used for religious worship, violates the Establishment Clause of the First Amendment to the United States Constitution and Article 1, Section 4 of the Indiana Constitution. We conclude that Section 35–43–2–1(1)(B)(ii) does not violate the Establishment Clause of the First Amendment because it has a secular legislative purpose, its primary effect neither advances nor inhibits religion, and it does not foster an excessive government entanglement with religion. We also conclude that Section 35–43–2–1(1)(B)(ii) does not violate Article 1, Section 4 of the Indiana Constitution because it does not materially burden Section 4's core constitutional value. We therefore affirm the trial court.

Facts and Procedural History

One night in October 2009, Burke and two companions burglarized the True Gospel Assembly Church on South Randolph Street in Indianapolis. Burke served as a lookout while his companions broke into the church. The companions spray-painted the walls and destroyed an organ and several guitars. Burke carried away an amplifier from the church.

The State charged Burke with Class B felony burglary, Ind.Code § 35–43–2–1(1)(B)(ii), and Class D felony theft, id. § 35–43–4–2(a). The burglary count was charged as a Class B felony because the State alleged that Burke burglarized a structure used for religious worship.

Burke filed a motion to dismiss the Class B felony burglary count. He argued that the statutory provision enhancing burglary to a Class B felony where the building is a structure used for religious worship violates Article 1, Section 4 of the Indiana Constitution. The trial court denied the motion after a hearing.

Burke renewed his motion to dismiss at the start of his bench trial. The trial court again denied the motion. The parties offered and the trial court admitted a joint stipulation of facts. Burke moved for a judgment on the evidence for the reasons stated in his motion to dismiss, which was denied. The trial court found Burke guilty as charged and later sentenced him to eight years with two years suspended.

Burke now appeals.

Discussion and Decision

Burke contends that Indiana Code section 35–43–2–1(1)(B)(ii), which enhances burglary from a Class C felony to a Class B felony if the building or structure burgled is a structure used for religious worship, violates the Establishment Clause of the First Amendment to the United States Constitution and Article 1, Section 4 of the Indiana Constitution.

I. Federal Constitution

Burke contends that Section 35–43–2–1(1)(B)(ii) violates the Establishment Clause of the First Amendment to the United States Constitution.

As an initial matter, the State argues that Burke has waived any federal constitutional argument because his motion to dismiss challenged the statute under only the Indiana Constitution. Our Supreme Court has noted that, generally, a challenge to the constitutionality of a criminal statute must be raised in a motion to dismiss before trial or the claim is waived. Payne v. State, 484 N.E.2d 16, 18 (Ind.1985).

Nonetheless, both our Supreme Court and this Court have considered challenges to the constitutionality of criminal statutes even when defendants have failed to file motions to dismiss. See, e.g., Morse v. State, 593 N.E.2d 194, 197 (Ind.1992) (stating that “the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court” and therefore addressing constitutional challenge to statute raised for first time in defendant's pro se motion filed on appeal even though defendant's counsel did not raise issue in appellate brief), reh'g denied; Payne, 484 N.E.2d at 18 (acknowledging doctrine of waiver but considering unpreserved constitutional challenge where State did not raise waiver issue); Price v. State, 911 N.E.2d 716, 719 (Ind.Ct.App.2009) (addressing constitutional challenge to criminal statute even though defendant failed to file motion to dismiss and State argued waiver), trans. denied; Vaughn v. State, 782 N.E.2d 417, 420 (Ind.Ct.App.2003) (same), trans. denied.

We recognize that Burke's motion to dismiss challenged Section 35–43–2–1(1)(B)(ii) under only the Indiana Constitution. However, in line with the foregoing cases, we choose to address the merits of Burke's federal constitutional claim.

Statutes are presumed to be constitutional, and such presumption continues until clearly overcome by a showing to the contrary. Myers v. State, 714 N.E.2d 276, 280 (Ind.Ct.App.1999), trans. denied. We resolve all doubts in favor of a statute's constitutionality. Id. The burden is on the party challenging a statute to demonstrate its unconstitutionality. Id.

Indiana's burglary statute provides in relevant part:

A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is:

(1) a Class B felony if:

* * * * * *

(B) the building or structure is a:

* * * * * *

(ii) structure used for religious worship....

I.C. § 35–43–2–1.

The First Amendment's Establishment Clause, made applicable to the States through the Fourteenth Amendment's Due Process Clause, provides, “Congress shall make no law respecting an establishment of religion....” U.S. Const. amend. I; see Myers, 714 N.E.2d at 280. The United States Supreme Court has summarized the Establishment Clause in this way:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between [c]hurch and State.”

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15–16, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1878)).

To determine whether government action offends the Establishment Clause, we have applied the United States Supreme Court's three-part test articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). See, e.g., Johnson v. State, 659 N.E.2d 194, 199 (Ind.Ct.App.1995), reh'g denied. Under Lemon, a statute does not violate the Establishment Clause if: (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive government entanglement with religion. 403 U.S. at 612–13, 91 S.Ct. 2105. Because the United States Supreme Court has “repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area,” Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), we apply the Lemon analysis here with full recognition that it provides “no more than helpful signposts.” Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973). ¹

We have been unable to find any Indiana case in which a defendant argued that Section 35–43–2–1(1)(B)(ii), or any other statutory provision enhancing a crime when a structure used for religious worship is involved, violates the Establishment Clause. Burke's claim thus presents an issue of first impression.

A similar challenge, however, was raised in Illinois. In People v. Carter ( Carter I ), 228 Ill.App.3d 526, 170 Ill.Dec. 55, 592 N.E.2d 491, 495 (Ill.App.Ct.1992), the defendant argued that a state sentencing provision that allowed a trial court to consider as an aggravating factor the fact that a crime occurred in or on the grounds of a place of worship immediately before, during, or after worship services violates the Establishment Clause. The Appellate Court of Illinois disagreed. The court concluded that the provision has a secular legislative purpose by observing its legislative history, which indicated that its purpose is to protect places of worship and the people who use them to the same extent as police officers, teachers, and nurses. Id., 170 Ill.Dec. 55, 592 N.E.2d at 497. After noting that “[p]laces of worship reach out and extend an invitation to the public; doors are unlocked; security is relaxed,” the court found that the provision reflects the legislature's determination that “crimes committed in such places, like crimes committed against the aged, are more repugnant to the community than, for example, crimes committed against convenience stores and those who use them.” Id. Moving on to Lemon's second prong, the court noted that the primary effect of the provision “falls on criminals rather than on their victims.” Id., 170 Ill.Dec. 55...