Pyle, Judge.
….
On appeal, Moore argues that … the trial court erred in convicting him of possession of a firearm as a serious violent felon because his prior out-of-state conviction for residential burglary was not substantially similar to a conviction for burglary in Indiana; and [that] there was insufficient evidence to support his conviction for resisting law enforcement as a Level 6 felony because there was no evidence that he caused the injuries Coppertree’s officer suffered while pursuing him. We conclude that … the Illinois statute for residential burglary was substantially similar to the Indiana statute for burglary. However, we agree with Moore that there was not sufficient evidence to elevate his resisting law enforcement conviction to a Level 6 felony because there was no evidence that he proximately caused the officer’s injuries. As a result, we affirm Moore’s conviction for unlawful possession of a firearm by a serious violent felon, but we reverse his conviction for resisting law enforcement as a Level 6 felony. We remand to the trial court with instructions to vacate Moore’s resisting law enforcement conviction and to enter a new conviction and sentence for the lesser-included offense of Class A misdemeanor resisting law enforcement.
….
… Moore argues that the trial court erred when it convicted him of unlawfully possessing a firearm as a serious violent felon based on its conclusion that his prior conviction in Illinois for residential burglary qualified him as a serious violent felon. In order to convict a defendant of unlawful possession of a firearm by a serious violent felon, the State must prove that the defendant has been convicted of a serious violent felony in Indiana or “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.” I.C. § 35-47-4-5(a)(1). The statute lists several offenses that qualify as serious violent felonies, including Levels 1, 2, 3, and 4 felony burglary. I.C. § 35-47-4-5(b)(15). The trial court concluded that the Illinois statute for residential burglary was substantially similar to the Indiana statute for burglary and, thus, concluded that Moore was a serious violent felon at the time of his offense. Moore challenges this conclusion, arguing that the Illinois statute was not substantially similar to the Indiana statute and that he should not have been considered a serious violent felon.
….
The basis for Moore’s argument is that the Indiana statute for burglary includes an element of “breaking,” which requires force, whereas the Illinois statute for residential burglary does not. Specifically, in Indiana, a person commits Level 4 felony burglary if he or she “breaks and enters the building or structure of another person, with intent to commit a felony or theft in it” and the structure is a “dwelling.” [Footnote omitted.] I.C. § 35-43-2-1. The element of “break[ing]” requires the use of force. See Goolsby v. State, 517 N.E.2d 54, 57 (Ind. 1987). At the time of Moore’s residential burglary conviction, the Illinois residential burglary statute provided that a person committed residential burglary if he or she “knowingly and without authority enter[ed] or knowingly and without authority remain[ed] within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft.” 720 Ill. Comp. Stat[]. Ann. 5/19-3 (West 2013). Based on the difference in wording between these two statutes, Moore asserts that a person may be convicted of residential burglary in Illinois without being convicted of burglary in Indiana under the same circumstances, which under [State v.] Bazan[, No. 55A01-1506-CR-737, ___ N.E.3d. ___ (Ind. Ct. App. Nov. 10, 2015)] would indicate that the two statutes are not substantially similar.
We disagree with Moore’s argument that Illinois’ residential burglary statute was not substantially similar to the Indiana burglary statute because it did not include the word “breaking,” or explicitly require the use of force. To the contrary, Illinois legal authority indicates that the Illinois residential burglary statute implies the use of force, like the burglary statute in Indiana. In People v. Beauchamp, 944 N.E.2d 319, 323 (Ill. 2011), the Illinois Supreme Court interpreted the element “enter” of the burglary statute to include a “breaking.” Specifically, the Court stated that “an entry may be accomplished simply by ‘breaking the close,’ i.e. crossing the planes that enclose the protected space.” Id. In other words, an “entry” involves force, even if it is the slightest force. Notably, in Indiana, the use of force may also be slight and still constitute a “breaking.” See Smith v. State, 535 N.E.2d 117, 118 (Ind. 1989) (“The use of even the slightest force, such as the opening of an unlocked door, can constitute a breaking.”). Therefore, the word “entry” in Illinois had a similar meaning to “breaking” in Indiana.
In addition, at the time of Moore’s Illinois offense, residential burglary was classified as a “forcible felony” under the Illinois Criminal Code. 720 Ill. Comp. Stat[]. Ann. 5/2-8 (West 2013). …
In light of the above factors, … we conclude that the Illinois statute implies the use of force, which is substantially similar to the Indiana burglary statute. We do not find any error in the trial court’s conclusions on this issue.
….
Finally, Moore argues that there was insufficient evidence to support his conviction for resisting law enforcement as a Level 6 felony. … The offense is elevated to a Level 6 felony if, while committing the offense, “the person . . . inflicts bodily injury on or otherwise causes bodily injury to another person[.]” I.C. § 35-44.1-3- 1(b)(1)(B). Moore was convicted of a Level 6 felony because Officer Helmer fell while he was pursuing Moore and suffered a partially-torn tendon in his left shoulder. On appeal, Moore argues that evidence of this injury was not sufficient to support the elevation of his conviction to a Level 6 felony because there was no evidence that he “inflict[ed]” or “otherwise cause[d]” the officer’s bodily injury. I.C. § 35-44.1-3-1(b)(1)(B).
….
Moore and the State direct us to two cases regarding causation of bodily injury while resisting arrest: Whaley v. State, 843 N.E.2d 1 (Ind. Ct. App. 2006), trans. denied, and Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014). …
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[One] way to distinguish these two cases is by considering the difference between contributing and proximate causation, which is a distinction that our supreme court discussed in Abney v. State, 766 N.E.2d 1175 (Ind. 2002). There, our supreme court defined a “contributing cause” as “a factor that—though not the primary cause—plays a part in producing a result.” Id. at 1178. * * * Instead of a contributing cause, the Abney Court held that, to support a conviction based on an injury or death, the State must prove that a defendant is a proximate cause of the victim’s injury or death. Id. at 1178. …
….
Although Abney concerned a conviction for operating while intoxicated causing death, it is a well-settled rule, as the Abney Court stated, that causation for purposes of a criminal conviction must be proximate, rather than contributing. See id. Troublingly, the Whaley and Smith Courts did not couch their decisions in terms of this standard for causation. However, we may interpret their decisions consistently with this standard. … [I]n Whaley, Whaley was the direct cause of the officers’ injuries because he left the officers no other choice but to hit his arms [because he was lying on them to prevent police from put his arms behind his back to handcuff him]. In terms of proximate cause, this meant that the officers’ injuries were a highly foreseeable result of Whaley’s actions. In contrast, in Smith, the officer had other options [because Smith was merely refusing to place her arms behind her back], and his decision to take Smith “to the ground” and injure himself was not as foreseeable. Therefore, although the Smith Court did not frame its decision in terms of proximate cause, we interpret the Smith Court’s holding to imply that Smith’s actions were not a proximate cause of the officer’s injuries.
Using the standard of proximate cause here, we are not convinced that the evidence of Moore’s actions was sufficient to support the conclusion that he caused Officer Helmer’s injuries. While Officer Helmer would not have received his injury if he had not pursued Moore, that fact is only sufficient to prove that Moore was a contributing cause of the injury—i.e., “a factor that—though not the primary cause—plays a part in producing a result.” Abney, 766 N.E.2d at 1178. The actual cause of Officer Helmer’s fall is not clear from the record. While it may be possible for a defendant fleeing from an officer to be a proximate, as well as contributing, cause of that officer’s resulting injuries, we do not find evidence to support that Moore proximately caused Officer Helmer’s injuries here. In addition to the fact that there was no evidence of the actual cause of Officer Helmer’s fall, Moore, unlike Whaley, did not put Officer Helmer in a position where his only option was to suffer injury.
However, although we find that there was not sufficient evidence to support the causation element that enhanced Moore’s conviction for resisting law enforcement to a Level 6 felony, it is undisputed that there was sufficient evidence to convict him of resisting law enforcement as a Class A misdemeanor. Accordingly, we reverse Moore’s resisting law enforcement conviction and remand to the trial court with instructions to vacate Moore’s conviction and re-enter a conviction and sentence for Class A misdemeanor resisting law enforcement. [Citation omitted.]
Affirmed in part, reversed in part, and remanded.
Baker, J., concurs.
Bradford, J., concurs in part, dissents in part with opinion.
… I respectfully dissent from the majority’s conclusion that the evidence was insufficient to sustain Moore’s conviction for Level 6 felony resisting arrest.
…At a minimum, proximate cause requires that the injury would not have occurred “but for” the defendant’s conduct. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1054 (Ind. 2003). [Footnote omitted.]
In the instant matter, the evidence demonstrates that Moore resisted law enforcement by running away after being stopped by Officer Helmer. Officer Helmer was injured when he fell while chasing after Moore. The evidence is such that the trial court, acting as the trier-of-fact, could reasonably form the inference that Moore’s act of running from Officer Helmer was the proximate cause of Officer Helmer’s injury. In addition, it is not unreasonable to anticipate that a consequence of fleeing from the police would be that an officer could fall and be injured during the ensuing chase. I would therefore conclude that the evidence is sufficient to prove that Moore “caused” Officer Helmer’s injury and affirm Moore’s conviction for Level 6 felony resisting law enforcement.
….
On appeal, Moore argues that … the trial court erred in convicting him of possession of a firearm as a serious violent felon because his prior out-of-state conviction for residential burglary was not substantially similar to a conviction for burglary in Indiana; and [that] there was insufficient evidence to support his conviction for resisting law enforcement as a Level 6 felony because there was no evidence that he caused the injuries Coppertree’s officer suffered while pursuing him. We conclude that … the Illinois statute for residential burglary was substantially similar to the Indiana statute for burglary. However, we agree with Moore that there was not sufficient evidence to elevate his resisting law enforcement conviction to a Level 6 felony because there was no evidence that he proximately caused the officer’s injuries. As a result, we affirm Moore’s conviction for unlawful possession of a firearm by a serious violent felon, but we reverse his conviction for resisting law enforcement as a Level 6 felony. We remand to the trial court with instructions to vacate Moore’s resisting law enforcement conviction and to enter a new conviction and sentence for the lesser-included offense of Class A misdemeanor resisting law enforcement.
….
… Moore argues that the trial court erred when it convicted him of unlawfully possessing a firearm as a serious violent felon based on its conclusion that his prior conviction in Illinois for residential burglary qualified him as a serious violent felon. In order to convict a defendant of unlawful possession of a firearm by a serious violent felon, the State must prove that the defendant has been convicted of a serious violent felony in Indiana or “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.” I.C. § 35-47-4-5(a)(1). The statute lists several offenses that qualify as serious violent felonies, including Levels 1, 2, 3, and 4 felony burglary. I.C. § 35-47-4-5(b)(15). The trial court concluded that the Illinois statute for residential burglary was substantially similar to the Indiana statute for burglary and, thus, concluded that Moore was a serious violent felon at the time of his offense. Moore challenges this conclusion, arguing that the Illinois statute was not substantially similar to the Indiana statute and that he should not have been considered a serious violent felon.
….
The basis for Moore’s argument is that the Indiana statute for burglary includes an element of “breaking,” which requires force, whereas the Illinois statute for residential burglary does not. Specifically, in Indiana, a person commits Level 4 felony burglary if he or she “breaks and enters the building or structure of another person, with intent to commit a felony or theft in it” and the structure is a “dwelling.” [Footnote omitted.] I.C. § 35-43-2-1. The element of “break[ing]” requires the use of force. See Goolsby v. State, 517 N.E.2d 54, 57 (Ind. 1987). At the time of Moore’s residential burglary conviction, the Illinois residential burglary statute provided that a person committed residential burglary if he or she “knowingly and without authority enter[ed] or knowingly and without authority remain[ed] within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft.” 720 Ill. Comp. Stat[]. Ann. 5/19-3 (West 2013). Based on the difference in wording between these two statutes, Moore asserts that a person may be convicted of residential burglary in Illinois without being convicted of burglary in Indiana under the same circumstances, which under [State v.] Bazan[, No. 55A01-1506-CR-737, ___ N.E.3d. ___ (Ind. Ct. App. Nov. 10, 2015)] would indicate that the two statutes are not substantially similar.
We disagree with Moore’s argument that Illinois’ residential burglary statute was not substantially similar to the Indiana burglary statute because it did not include the word “breaking,” or explicitly require the use of force. To the contrary, Illinois legal authority indicates that the Illinois residential burglary statute implies the use of force, like the burglary statute in Indiana. In People v. Beauchamp, 944 N.E.2d 319, 323 (Ill. 2011), the Illinois Supreme Court interpreted the element “enter” of the burglary statute to include a “breaking.” Specifically, the Court stated that “an entry may be accomplished simply by ‘breaking the close,’ i.e. crossing the planes that enclose the protected space.” Id. In other words, an “entry” involves force, even if it is the slightest force. Notably, in Indiana, the use of force may also be slight and still constitute a “breaking.” See Smith v. State, 535 N.E.2d 117, 118 (Ind. 1989) (“The use of even the slightest force, such as the opening of an unlocked door, can constitute a breaking.”). Therefore, the word “entry” in Illinois had a similar meaning to “breaking” in Indiana.
In addition, at the time of Moore’s Illinois offense, residential burglary was classified as a “forcible felony” under the Illinois Criminal Code. 720 Ill. Comp. Stat[]. Ann. 5/2-8 (West 2013). …
In light of the above factors, … we conclude that the Illinois statute implies the use of force, which is substantially similar to the Indiana burglary statute. We do not find any error in the trial court’s conclusions on this issue.
….
Finally, Moore argues that there was insufficient evidence to support his conviction for resisting law enforcement as a Level 6 felony. … The offense is elevated to a Level 6 felony if, while committing the offense, “the person . . . inflicts bodily injury on or otherwise causes bodily injury to another person[.]” I.C. § 35-44.1-3- 1(b)(1)(B). Moore was convicted of a Level 6 felony because Officer Helmer fell while he was pursuing Moore and suffered a partially-torn tendon in his left shoulder. On appeal, Moore argues that evidence of this injury was not sufficient to support the elevation of his conviction to a Level 6 felony because there was no evidence that he “inflict[ed]” or “otherwise cause[d]” the officer’s bodily injury. I.C. § 35-44.1-3-1(b)(1)(B).
….
Moore and the State direct us to two cases regarding causation of bodily injury while resisting arrest: Whaley v. State, 843 N.E.2d 1 (Ind. Ct. App. 2006), trans. denied, and Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014). …
….
[One] way to distinguish these two cases is by considering the difference between contributing and proximate causation, which is a distinction that our supreme court discussed in Abney v. State, 766 N.E.2d 1175 (Ind. 2002). There, our supreme court defined a “contributing cause” as “a factor that—though not the primary cause—plays a part in producing a result.” Id. at 1178. * * * Instead of a contributing cause, the Abney Court held that, to support a conviction based on an injury or death, the State must prove that a defendant is a proximate cause of the victim’s injury or death. Id. at 1178. …
….
Although Abney concerned a conviction for operating while intoxicated causing death, it is a well-settled rule, as the Abney Court stated, that causation for purposes of a criminal conviction must be proximate, rather than contributing. See id. Troublingly, the Whaley and Smith Courts did not couch their decisions in terms of this standard for causation. However, we may interpret their decisions consistently with this standard. … [I]n Whaley, Whaley was the direct cause of the officers’ injuries because he left the officers no other choice but to hit his arms [because he was lying on them to prevent police from put his arms behind his back to handcuff him]. In terms of proximate cause, this meant that the officers’ injuries were a highly foreseeable result of Whaley’s actions. In contrast, in Smith, the officer had other options [because Smith was merely refusing to place her arms behind her back], and his decision to take Smith “to the ground” and injure himself was not as foreseeable. Therefore, although the Smith Court did not frame its decision in terms of proximate cause, we interpret the Smith Court’s holding to imply that Smith’s actions were not a proximate cause of the officer’s injuries.
Using the standard of proximate cause here, we are not convinced that the evidence of Moore’s actions was sufficient to support the conclusion that he caused Officer Helmer’s injuries. While Officer Helmer would not have received his injury if he had not pursued Moore, that fact is only sufficient to prove that Moore was a contributing cause of the injury—i.e., “a factor that—though not the primary cause—plays a part in producing a result.” Abney, 766 N.E.2d at 1178. The actual cause of Officer Helmer’s fall is not clear from the record. While it may be possible for a defendant fleeing from an officer to be a proximate, as well as contributing, cause of that officer’s resulting injuries, we do not find evidence to support that Moore proximately caused Officer Helmer’s injuries here. In addition to the fact that there was no evidence of the actual cause of Officer Helmer’s fall, Moore, unlike Whaley, did not put Officer Helmer in a position where his only option was to suffer injury.
However, although we find that there was not sufficient evidence to support the causation element that enhanced Moore’s conviction for resisting law enforcement to a Level 6 felony, it is undisputed that there was sufficient evidence to convict him of resisting law enforcement as a Class A misdemeanor. Accordingly, we reverse Moore’s resisting law enforcement conviction and remand to the trial court with instructions to vacate Moore’s conviction and re-enter a conviction and sentence for Class A misdemeanor resisting law enforcement. [Citation omitted.]
Affirmed in part, reversed in part, and remanded.
Baker, J., concurs.
Bradford, J., concurs in part, dissents in part with opinion.
… I respectfully dissent from the majority’s conclusion that the evidence was insufficient to sustain Moore’s conviction for Level 6 felony resisting arrest.
…At a minimum, proximate cause requires that the injury would not have occurred “but for” the defendant’s conduct. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1054 (Ind. 2003). [Footnote omitted.]
In the instant matter, the evidence demonstrates that Moore resisted law enforcement by running away after being stopped by Officer Helmer. Officer Helmer was injured when he fell while chasing after Moore. The evidence is such that the trial court, acting as the trier-of-fact, could reasonably form the inference that Moore’s act of running from Officer Helmer was the proximate cause of Officer Helmer’s injury. In addition, it is not unreasonable to anticipate that a consequence of fleeing from the police would be that an officer could fall and be injured during the ensuing chase. I would therefore conclude that the evidence is sufficient to prove that Moore “caused” Officer Helmer’s injury and affirm Moore’s conviction for Level 6 felony resisting law enforcement.