Rucker, J.
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. …
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 … 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. … the SVF statute requires substantial similarity between the elements of an Indiana offense and those of a foreign jurisdiction.
… 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.” … The trial court thus dismissed the two counts charging Hancock as an SVF. …
…
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). …
This case requires us to construe the meaning of “substantially similar” which is not defined by statute. … 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.
….
… 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.
… 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.
….
… It appears to us element I of the Ohio and Indiana statutes, while worded differently, display the high degree of likeness necessary to qualify as substantially similar within the meaning of the SVF statute.
As for element II—“break and enter” in Indiana and “trespass by force, stealth, or deception” in Ohio—we first observe the terms “force,” “stealth,” and “deception” in the Ohio statute are listed in the disjunctive and modify the term “trespass.” Thus, a trespass may be accomplished either by force or by stealth or by deception. …
….
… In sum, we have no hesitancy concluding element II in Ohio’s burglary statute and element II in Indiana’s burglary statute are substantially similar.
Concerning element III, an “occupied structure of any person” in Ohio and “building or structure of another person” in Indiana also display a high degree of likeness. … Not only is there a high degree of likeness between the two elements, but also the definitions of the two are worded nearly identically.
Finally, with respect to element IV Indiana requires that “the building or structure is a dwelling.” I.C. § 35-43-2-1(1). And our courts have long held that a dwelling does not lose its status as a person’s home or place of lodging simply because no one was staying in the home at the time of the unlawful entry. See Phillips v. State, 514 N.E.2d 1073, 1075 (Ind. 1987)…
… In short, the very same conduct violating the Ohio second degree burglary statute—the actual or likely presence of a person—would necessarily violate Indiana’s level 4 felony burglary statute as well. Thus, element IV of the Ohio and Indiana statutes are substantially similar within the meaning of the SVF statute.
… We conclude the elements of Ohio’s second degree felony burglary statute are substantially similar to the corollary elements of Indiana’s level 4 felony burglary statute. The trial court thus erred in dismissing the informations charging Hancock as a serious violent felon. We therefore reverse the judgment of the trial court.
Rush, C.J., and Massa and Slaughter, JJ., concur.
David, J., dissents with separate opinion.
David, J., dissenting.
While I appreciate Justice Rucker’s thoughtful majority opinion, I must respectfully dissent. In my view, the Ohio statute at issue is broader than the Indiana statute in that it employs the language “any criminal offense” as compared to the Indiana statute, which is limited to “a felony or theft.” I do not believe that it is merely an “academic possibility” that any variety of underlying misdemeanor offense may suffice to support a burglary in Ohio as the Ohio Supreme Court has stated that: “[g]iven the General Assembly’s use of the term ‘any’ in the phrase ‘any criminal offense,’ we presume that it intended to encompass ‘every’ and ‘all’ criminal offenses recognized by Ohio.” State v. Gardner, N.E.2d 995, 1003 (Oh. 2008).
Even though we can reasonably infer that one who forcibly enters a structure is there to commit a theft offense, this may not always be the case. One could break into a home and commit a non-theft misdemeanor in Ohio (e.g., stalking) and be found guilty of burglary; however, this person would not be guilty of burglary under Indiana law. Because Indiana requires a higher showing to constitute a burglary; that is, a felony or theft, I do not believe that the two statutes are substantially similar. Accordingly, I believe we should affirm the trial court.