State v. Hancock

• Decision Date: 16 December 2016
• Docket Number: No. 39S05–1604–CR–182.,39S05–1604–CR–182.
• Citation: 65 N.E.3d 585
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Frank HANCOCK, Appellee (Defendant below).
• Court: Indiana Supreme Court

65 N.E.3d 585

STATE of Indiana, Appellant (Plaintiff below),

v.Frank HANCOCK, Appellee (Defendant below).

No. 39S05–1604–CR–182.

Supreme Court of Indiana.

Dec. 16, 2016.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Stephen R. Creason, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

James C. Spencer, Dattilo Law Office, Madison, IN, Attorney for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 39A05–1506–CR–633.

RUCKER, Justice.

Concluding the burglary statute in this state is not substantially similar to the burglary statute of a sister jurisdiction, the trial court dismissed two counts of an information charging the defendant as a serious violent felon. Reaching the opposite conclusion, we reverse the trial court's judgment.

Facts and Procedural History

Although the underlying facts are not completely clear, the record shows that on October 6, 2014, the State charged Frank Hancock in a multi-count information with two counts of unlawful possession of a firearm by a serious violent felon—level 4 felonies; one count of escape as a level 5 felony; one count of corrupt business influence—a level 5 felony; one count of carrying a handgun without a license as a class A misdemeanor; one count of theft as a class A misdemeanor; and one count of possession of marijuana as a class A misdemeanor. The charges of unlawful possession of a firearm by a serious violent felon (SVF) were based on the State's allegation that Hancock had previously been convicted of second degree burglary in the State of Ohio. As discussed in more detail below, the SVF statute requires substantial similarity between the elements of an Indiana offense and those of a foreign jurisdiction.

The case proceeded to trial on May 12, 2015. Following voir dire, the jury was sworn and excused for the day. The trial court then discussed with counsel the jury instructions for the SVF charges expressing concerns over whether the elements of Ohio's second degree felony burglary statute and Indiana's level 4 felony burglary statute were substantially similar. Ultimately, the trial court concluded "[t]he Ohio statute and Indiana statutes on Burglary are not similar as it relates to the elements of the offense." Tr. at 12. The trial court thus dismissed the two counts charging Hancock as an SVF. Tr. at 12. The next day, as the parties prepared to proceed to trial on the remaining counts, the State orally moved for mistrial on grounds it believed Hancock could not now receive a fair trial because during voir dire the State made reference to the SVF counts which the trial court had since dismissed. Tr. at 18. Hancock joined in the motion which the trial court granted. Tr. at 18.

The State then appealed the dismissal of the two SVF counts¹ contending the trial court misinterpreted the law when it determined that Hancock's prior conviction for residential burglary in Ohio was not substantially similar to the elements of residential burglary in Indiana. Affirming the trial court, the Court of Appeals declared "[a]lthough 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." State v. Hancock, 49 N.E.3d 1084, 1086 (Ind.Ct.App.2016).² Having previously granted transfer, we now reverse the trial court's judgment.

Discussion

I.

Indiana Code section 35–47–4–5 prohibits the unlawful possession of a firearm by a serious violent felon. In relevant part the statute provides: "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[.]" Ind.Code § 35–47–4–5(a). The statute lists twenty-seven separate offenses qualifying as a serious violent felony including "burglary (I.C. 35–43–2–1 ) as a: ... Level 1 felony, Level 2 felony, Level 3 felony, or Level 4 felony, for a crime committed after June 30, 2014." I.C. § 35–47–4–5(b)(15)(B).

This case requires us to construe the meaning of "substantially similar" which is not defined by statute. We are thus presented with a question of statutory construction which is a matter of law we review de novo. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.2016). When construing a statute our primary goal is to ascertain the legislature's intent. Adams v. State, 960 N.E.2d 793, 798 (Ind.2012). To discern that intent, we look to the statutory language itself and give effect to the plain and ordinary meaning of statutory terms. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind.2015). Undefined words in a statute are given their plain, ordinary and usual meaning.See I.C. § 1–1–4–1(1). And in determining the plain and ordinary meaning of a statutory term, courts may consult English language dictionaries. D.R. v. State, 729 N.E.2d 597, 599 (Ind.Ct.App.2000). We do so here. In one such dictionary "similar" is defined as "having characteristics in common" or "alike in substance or essentials." Webster's Third New International Dictionary 2120 (2002). In another, the term is defined as "[r]elated in appearance or nature; alike though not identical." The American Heritage Dictionary of the English Language 1622 (2006). "Substantial" is defined as "consisting of, relating to, sharing the nature of, or constituting substance[.]" Webster's at 2280; see also The American Heritage at 1727 (defining "substantial" in part as "[c]onsiderable in importance, value, degree, amount, or extent"). Reduced to their essence these definitions can best be applied here to mean that the elements of two statutes are "substantially similar" if they have common core characteristics that are largely, but not identically, alike in degree or extent.

We are still left with the question of how do we evaluate these core characteristics. For example, elements may be substantially similar with respect to general characteristics such as wording and type of element. On the other hand, elements may be considered substantially similar with respect to specific characteristics such as the underlying conduct sought to be regulated. See, e.g., United States v. Thomas, 367 F.3d 194, 198 (4th Cir.2004) (a case involving Maryland and Virginia driving while intoxicated statutes, declaring "[a] statute is substantially similar if any actions violating the [out-of-state Maryland] statute necessarily would violate the Virginia statute as well" (citation omitted)). To help answer the question we set out the relevant text of each offense, separate the offenses into elements conducive to comparison, and then look for substantial similarity between the elements.

II.

Hancock pleaded guilty in the Hamilton County, Ohio Court of Common Pleas to two counts of second degree burglary under Ohio Rev.Code § 2911.12(A)(2) and was sentenced on January 6, 2004 to concurrent terms of six years. See Ex. 6, 8. Following are relevant portions of the Ohio statute as they appeared at the time of the offense:

(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;

(C) ... A violation of division (A) ... (2) of this section is a felony of the second degree.

Ohio Rev.Code Ann. § 2911.12(A)(2), (C) (West 2003). Burglary in Indiana is defined in pertinent part as follows: "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: (1) a Level 4 felony if the building or structure is a dwelling [.]" I.C. § 35–43–2–1(1).

For purposes of comparison we align and number the elements of the two offenses. With respect to Ohio burglary as a second degree felony:

(I) With the purpose to commit any criminal offense

(II) A person trespasses by force, stealth, or deception

(III) In an occupied structure of any person

(IV) When any person other than the accomplice of the offender is present or is likely to be present.

Concerning Indiana burglary as a level 4 felony the comparable elements are as follows:

(I) With the intent to commit a felony or theft

(II) A person breaks and enters

(III) The building or structure of another person

(IV) Where the building or structure is a dwelling.

III.

At common law, burglary was defined as the "breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony." W. LaFave, 3 Substantive Criminal Law § 21.1(a), at 205–206 (2003). However, "[o]nly a few States retain the common-law definition, or something closely resembling it. Most other States have expanded this definition to include entry without a ‘breaking,’ structures other than dwellings, offenses committed in the daytime, entry with intent to commit a crime other than a felony, etc." Taylor v. U.S., 495 U.S. 575, 593, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (footnote and citation omitted).

Like Indiana there are no common-law crimes in the State of Ohio. See Knotts v. State, 243 Ind. 501, 187 N.E.2d 571, 573 (1963) ("In Indiana no common-law crimes exist, and the legislature fixes the elements necessary for any statutory crime." (citation omitted)); State v. Gardner, 118 Ohio St.3d 420, 889 N.E.2d 995, 1002 (2008) ("In Ohio, there are no common-law crimes." (citations omitted)). And both states have expanded the common-law definition of burglary. Notably, for our purposes, the expansion involves the underlying offense. For second degree burglary in Ohio...