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FOR PUBLICATION

FILED
Feb 21 2011, 9:55 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: VICTORIA L. BAILEY Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOSHUA BURKE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-1006-CR-660

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant W. Hawkins, Judge Cause No. 49G05-0910-FB-089614

February 21, 2011 OPINION - FOR PUBLICATION 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 4s 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

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Indiana Law