Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                              Aug 20 2014, 9:33 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS                                GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 BRIAN REITZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ERIC J. SMITH,                                   )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )       No. 02A03-1311-CR-449
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                              Cause No. 02D04-1307-MR-7


                                       August 20, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

       Eric J. Smith appeals his convictions for murder and Class B felony possession of

a firearm by a serious violent felon. We affirm.

                                           Issue

      Smith raises one issue, which we restate as whether his convictions violate the

prohibition against double jeopardy.

                                          Facts

      Smith shot and killed Jabron Totton during a dispute in the parking lot of an

American Legion post in Fort Wayne. The State charged Smith with murder, with an

application for an additional fixed term of imprisonment for using a firearm pursuant to

Indiana Code Section 35-50-2-11, and Class B felony possession of a firearm by a serious

violent felon. A jury found Smith guilty as charged. The trial court sentenced him to

sixty-five years for the murder conviction enhanced by five years for the use of a firearm

consecutive to a sentence of twenty years for the possession of a firearm by a serious

violent felon conviction. He received an aggregate sentence of ninety years in the

Department of Correction. Smith now appeals.

                                         Analysis

      Smith argues that his convictions violate the prohibition against double jeopardy.

The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person shall be

put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In Richardson v.

State, 717 N.E.2d 32 (Ind. 1999), our supreme court concluded that two or more offenses

are the same offense in violation of Article 1, Section 14 if, with respect to either the

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statutory elements of the challenged crimes or the actual evidence used to obtain

convictions, the essential elements of one challenged offense also establish the essential

elements of another challenged offense. Garrett v. State, 992 N.E.2d 710, 719 (Ind.

2013).

         Smith concedes that his convictions do not violate the statutory elements test;

rather, Smith argues that his convictions for murder and possession of a firearm by a

serious violent felon violate the actual evidence test.1 “Under the actual evidence test, we

examine the actual evidence presented at trial in order to determine whether each

challenged offense was established by separate and distinct facts.” Id. To find a double

jeopardy violation under this test, we must conclude that there is “a reasonable possibility

that the evidentiary facts used by the fact-finder to establish the essential elements of one

offense may also have been used to establish the essential elements of a second

challenged offense.” Id. “The actual evidence test is applied to all the elements of both

offenses.” Id. “‘In other words . . . the Indiana Double Jeopardy Clause is not violated

when the evidentiary facts establishing the essential elements of one offense also

establish only one or even several, but not all, of the essential elements of a second

offense.’” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).

         According to Smith, the same evidentiary facts were used to establish the essential

elements of both murder and possession of a firearm by a serious violent felon. Our

1
  Smith does not that argue the sentencing enhancement for using a firearm and his conviction for
possession of a firearm by a serious violent felon violate the prohibition against double jeopardy. See
Cooper v. State, 940 N.E.2d 1210, 1215 (Ind. Ct. App. 2011) (recognizing that sentencing enhancements
are not offenses for double jeopardy purposes), trans. denied.



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supreme court addressed a similar argument in Mickens v. State, 742 N.E.2d 927 (Ind.

2001).      There, the defendant challenged his convictions for murder and carrying a

handgun without a license based on the prohibition against double jeopardy based on the

actual evidence test. Our supreme court rejected the argument and found that “[c]arrying

the gun along the street was one crime and using it was another.” Mickens, 742 N.E.2d

at 931.

          Similarly, here, the State proved that Smith committed murder by demonstrating

that he caused Totton’s death by shooting him with a gun. The State proved that Smith

committed possession of a firearm by a serious violent felon by demonstrating that Smith

possessed a gun and qualified as a serious violent felon. Smith attempts to distinguish

Mickens by arguing that “not a single witness saw Smith with a gun at any point on June

9th.” Appellant’s Br. p. 11. However, circumstantial evidence demonstrated that Smith

possessed the weapon. As the State point out, “One cannot fire a gun without also, at

some point, possessing that firearm.” Appellee’s Br. p. 8. We conclude that Smith’s

double jeopardy argument fails. Possessing the weapon as a serious violent felon was

one crime and using it to murder Totton was another.

                                        Conclusion

          Smith’s convictions for murder and possession of a firearm by a serious violent

felon do not violate the prohibition against double jeopardy. We affirm.

          Affirmed.

BRADFORD, J., and BROWN, L., concur.



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