Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be

                                                              FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                   Aug 29 2012, 9:41 am
collateral estoppel, or the law of the
case.                                                              CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ELIZABETH A. BELLIN                              GREGORY F. ZOELLER
Cohen Law Offices                                Attorney General of Indiana
Elkhart, Indiana
                                                 BRIAN REITZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA


ROBERT BRANDON,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 20A05-1202-CR-53
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ELKHART CIRCUIT COURT
                        The Honorable Terry Shewmaker, Judge
                             Cause No. 20C01-1103-FA-7


                                      August 29, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

         Robert Brandon appeals his convictions and sentence for Class A felony robbery,

Class A felony burglary, and Class B felony conspiracy to commit robbery. We affirm in

part, reverse in part, and remand.

                                           Issues

         The issues before us are:

                I.     whether Brandon’s convictions for both Class A felony
                       robbery and Class A felony burglary violate double
                       jeopardy principles;

                II.    whether there is sufficient evidence to support
                       Brandon’s conviction for Class A felony robbery; and

                III.   whether Brandon’s aggregate sixty-year sentence is
                       inappropriate.

                                           Facts

         The evidence most favorable to the convictions is that on the evening of February

4, 2011, Dawn Alwine was having a birthday party for her daughter, Chelsea, at her

home in Elkhart. Earlier in the day, Dawn’s acquaintance, disabled sixty-seven-year-old

Army veteran Roy Tittle, saw Dawn in a drug store parking lot. Tittle and Dawn had an

argument about a man Dawn was dating, and Tittle told Dawn to stay away from his

house.

         Tittle then returned to his home and began drinking. At about 10:30 p.m., Dawn

and Chelsea left the birthday party and walked into Tittle’s nearby house without

knocking.     Another argument ensued.     This time, Tittle, who was now intoxicated,

                                             2
punched Dawn in the mouth. Dawn and Chelsea then left Tittle’s house and returned to

the party. Tittle resumed drinking and eventually passed out on his recliner.

       When Dawn returned to the party with a bloody mouth, she told people that Tittle

had punched her and that she wanted someone to hit him in return. Brandon, Alex Jones,

and Cameron O’Neal were at the party, and Dawn asked them if they would go to Tittle’s

house and punch him in the mouth a couple of times, and they all agreed. Dawn also

enticed Brandon and the others into going to Tittle’s house by telling them that he kept

$300 in cash and $100 in change in the house. Brandon also asked Dawn if Tittle had

any televisions in the house, and Dawn told him that Tittle did.

       At about 2:00 a.m. on February 5, 2011, Dawn, Brandon, Jones, O’Neal, and

another individual, Darnell Brown, walked to Tittle’s house. Brandon and Jones wore

masks that Dawn provided. When they arrived at Tittle’s house, Jones kicked the door in

and all the individuals went inside. Brandon and Jones both then began punching and

stomping on the passed-out Tittle. Jones repeatedly asked Tittle, “where’s your wallet,

n*****?” Tr. p. 190. Tittle did not respond, but Dawn found his wallet and gave it to

Jones. The parties ransacked the house, looking for items to steal. O’Neal found and

took a coffee can full of change, Jones took a television, Dawn took some pills, and

Brandon took clothes and jewelry. Dawn also believed that Brandon was considering

stealing Tittle’s car, but she and Jones talked him out of it. Dawn, Brandon, Jones,

O’Neal, and Brown returned to the party, with Brandon and Jones excitedly discussing

how they had beaten Tittle and acting out their motions. Brandon also exclaimed, “we

                                             3
got that n***** naked.” Tr. p. 393. Courtney then drove Brandon and the others to

Brandon’s residence, where they stashed the items stolen from Tittle’s house.

       At 2:32 a.m., Elkhart Police Department Corporal Andy Rucker responded to a

911 call placed by a person who lived in Tittle’s basement. Corporal Rucker found Tittle

sitting in his recliner covered in blood, apparently conscious but unable to remember

anything that had happened. Tittle was transported to a hospital emergency room. His

left eye was swollen shut, and he had abrasions to his left shoulder and arm, including

loose skin hanging off of it. He also told the treating physician that his pain was a ten on

a scale from one to ten. A CAT scan revealed that Tittle had a comminuted fracture of

his left orbital socket, meaning it was broken into little pieces, and a complex fracture of

the lamina papyracea, another part of the eye orbit. Tittle had to have a total of twelve

stitches around his left eye. After being in the emergency room for about four hours,

Tittle was discharged with a Vicodin prescription.

       Eventually, Dawn confessed what had happened to police. For his role in the

incident, the State charged Brandon with Class A felony robbery, based on serious bodily

injury, Class A felony burglary, based on bodily injury, and Class B felony conspiracy to

commit robbery resulting in bodily injury. A jury trial was held on December 5-7, 2011,

after which Brandon was found guilty as charged. The trial court entered convictions on

all three verdicts and sentenced Brandon as follows: forty-eight years for the robbery and

burglary convictions, to run concurrently, and twelve years for the conspiracy conviction,



                                             4
to run consecutive to the other two sentences for an aggregate term of sixty years.

Brandon now appeals.

                                          Analysis

                                    I. Double Jeopardy

       We first address Brandon’s argument that there is an irreconcilable double

jeopardy conflict between his convictions for Class A felony robbery and Class A felony

burglary, because they depend upon the same injuries to Tittle. The base offense of

robbery is a Class C felony, but it is a Class B felony if it is committed with a deadly

weapon or causes bodily injury to anyone other than a defendant and is further elevated

to a Class A felony if it results in serious bodily injury to anyone other than a defendant.

Ind. Code § 35-42-5-1. The base offense of burglary of a dwelling is a Class B felony,

but it is elevated to a Class A felony if it results in either bodily injury or serious bodily

injury to anyone other than a defendant. I.C. § 35-43-2-1.

       For purposes of the Double Jeopardy Clause of the Indiana Constitution, two

offenses are identical and one must be vacated if the evidentiary facts establishing the

essential elements of one offense also establish all of the essential elements of a second

offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). The State correctly notes that

the scenario in this case—where the same evidence allegedly supports an enhancement of

two different offenses, but not all of the elements of both offenses—does not violate the

Indiana Constitution. However, Indiana courts have long adhered to a series of rules of

statutory construction and common law holding, among other things, that two different

                                              5
offenses cannot be enhanced based on precisely the same injury or injuries to one victim.

Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002).

       The tests for determining whether constitutional or common law rules against

double jeopardy have been violated are largely co-extensive. We must “consider the

evidence, charging information, final jury instructions and arguments of counsel in

determining what facts the trier-of-fact used to establish each element of an offense.”

Boss v. State, 964 N.E.2d 931, 937 (Ind. Ct. App. 2012).         If there is a reasonable

possibility that the fact finder relied upon the same evidentiary facts to support an

enhancement of two offenses, one of the offenses must be lowered to an offense level that

does not depend upon the enhancement. See id. at 938.

       Here, the charging information generically alleged only that Tittle sustained

serious bodily injury under the robbery count and bodily injury under the burglary count.

There also was nothing in the presentation of evidence or jury instructions that would

support a distinction between injuries sustained as part of the burglary and those

sustained as part of the robbery. The State directs us to the following portions of the

prosecutor’s closing argument, where it claims a differentiation was made regarding the

burglary, the robbery, and the injuries Tittle sustained:

                      And once they get inside and they’re getting the
              televisions and the money, Alex and Robert are beating on
              Roy. . . . Burglary is a crime against property, but we have
              injury here. . . . They beat on Roy, and Alex is saying where
              is the money. And Dawn gets the money, and she told you
              after that they keep beating on Roy. . . . [C]onsider what they
              were intending to do, to take the money and the television

                                              6
             sets and consider the fact that Roy was experiencing physical
             pain at this point, and that’s bodily inquiry [sic], and that is
             Count II [burglary].

                     The final conscious decision made by the five of them
             that night was to treat Roy’s house like a Wal-Mart, a free for
             all if you will. And the reason you criminalize this separately
             is because they had the money; they had the opportunity to
             leave with the televisions; but they stayed in that house. They
             stayed in that house long enough to start ransacking it and
             looking for extra stuff, and that’s why this is a separate and
             distinct crime.

                                        *****

                     . . . . And what happens to Roy here? What’s the
             serious bodily inquiry [sic]? . . . It can be extreme pain. It
             can be unconsciousness. It could be comminuted fracturing,
             ladies and gentlemen, to Roy’s eye socket. . . . What
             happened to Roy’s eye socket?             The floor fell out.
             Comminuted, crushed, pulverized. Bone that has been broken
             into little pieces. And how about the lamina papyracea, the
             other bone near the sinus, that’s a complex fracture. Just
             another word, ladies and gentlemen, meaning multiple
             fractures. This did not have to happen but for Robert
             Brandon and Alex Jones and the others making the decision
             to say in that house, to continue to beat Roy, and to take all
             that extra stuff: the clothing, the gold jewels, and the pills.
             Three conscious decisions, ladies and gentlemen, three
             separate crimes. They must be treated separately by you.

Tr. pp. 678-80.

      Contrary to the State’s contention, we do not see an attempt to differentiate the

evidence regarding Tittle’s injuries. Clearly, the prosecutor was making an attempt to

differentiate generally between the burglary, robbery, and conspiracy charges. Brandon

makes no argument that there is a double jeopardy problem with being convicted of all


                                            7
three offenses. Regarding Tittle’s injuries, however, the prosecutor’s argument does not

differentiate at all between the burglary and the robbery.

       Indeed, we cannot perceive how the evidence could have supported such a

differentiation. After breaking into the house, Jones and Brandon immediately joined

together to severely batter Tittle while some of the others looked for property to steal in

his house. This battering took place immediately and, as even argued by the prosecutor,

it occurred while Jones was asking Tittle where his wallet was. There was no evidence of

separate, distinct episodes of beating Tittle. Thus, all of Tittle’s injuries were sustained

during the course of one continuous beating immediately after the conspirators entered

his house and while Jones was demanding property from him. We conclude there is a

more than reasonable possibility that the jury relied on the same evidence to support the

bodily injury enhancement of the burglary charge and the serious bodily injury

enhancement of the robbery charge.

       The question is how to remedy this double jeopardy violation. Brandon argues

that his robbery conviction should be reduced to a base Class C felony and that his

conspiracy conviction based on that conviction should likewise be reduced to a Class C

felony.   See I.C. § 35-41-5-2(a) (providing that except for murder, a conspiracy

conviction is a felony of the same class as the underlying offense). The State argues that

this would result in a “windfall” to Brandon and that if we find a double jeopardy

violation, we ought to instead reduce the burglary conviction to a Class B felony.

Appellee’s Br. p. 16.

                                             8
       When two convictions contravene double jeopardy principles, we may remedy the

violation by reducing either conviction to a less serious form of the same offense if doing

so will eliminate the violation. Moala v. State, 969 N.E.2d 1061, 1065 (Ind. Ct. App.

2012) (quoting Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999)). Generally, in

deciding which conviction to reduce or vacate, a reviewing court will reduce or vacate

the conviction with the less severe penal consequences. Id. The severity of the penal

consequences largely is determined by the class of crime or by the length of sentence

imposed. Id. at 1066. Additionally, parties do not have the discretion to choose which

conviction should be reduced or vacated in the event of a double jeopardy violation. See

id. at 1067 (holding State could not direct that conviction with more severe immediate

penal consequences be vacated instead of conviction with less severe consequences).

       This case is somewhat unusual, in that both the robbery and burglary convictions

have equal penal consequences and Brandon was given equal sentences for each

conviction. However, we believe that in this particular case, the burglary conviction

clearly has the less severe penal consequences. That is, the robbery conviction carries not

only its own penal consequences, but is also related to the Class B felony conspiracy

conviction and its twelve-year sentence. As a whole, therefore, the robbery conviction

carries more severe penal consequences than the burglary conviction. Additionally, we

may remedy this double jeopardy violation by only reducing the burglary conviction to a

Class B felony, while if we did not reduce the burglary conviction we would be legally

required to reduce Brandon’s A felony robbery and B felony conspiracy convictions both

                                            9
to Class C felonies. We believe that in remedying a double jeopardy violation, we should

strive to maintain convictions and a resulting sentence that are as close as legally possible

to the original convictions and sentence.

       We direct that Brandon’s conviction for Class A felony burglary be reduced to a

Class B felony, which does not require any proof of bodily injury, leaving his robbery

and conspiracy convictions intact.      Furthermore, in the interest of efficient judicial

administration, remand for the trial court to resentence Brandon for the burglary count is

not required and we may make this determination ourselves, based on the penalty the trial

court found appropriate. See id. at 1066. We believe that a sentence of eighteen years

for Class B felony burglary, to be served concurrent with the robbery sentence, is

consistent with the sentence originally imposed by the trial court.

                             II. Sufficiency of the Evidence

       Next, we address Brandon’s contention that there is insufficient evidence of

serious bodily injury to Tittle to support his Class A felony robbery conviction. When

reviewing a claim of insufficient evidence to support a conviction, we neither reweigh the

evidence nor judge the credibility of the witnesses, because this is the exclusive province

of the fact finder. Lyles v. State, 970 N.E.2d 140, 142 (Ind. 2012). We consider only the

evidence most favorable to the State together with all reasonable and logical inferences

that may be drawn from that evidence. Id. If a reasonable finder of fact could have

found from the evidence that the defendant was guilty beyond a reasonable doubt, we

will uphold the conviction. Id.

                                             10
       “Serious bodily injury” is statutorily defined as bodily injury “that creates a

substantial risk of death or that causes . . . (1) serious permanent disfigurement; (2)

unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the

function of a bodily member or organ; or (5) loss of a fetus.” I.C. § 35-31.5-2-292. On

rare occasions, an appellate court may determine as a matter of law that certain injuries

do not qualify as “serious bodily injury.” See Davis v. State, 813 N.E.2d 1176, 1178

(Ind. 2004) (holding that evidence victim suffered lacerated lip, knee abrasion, and

broken pinky finger and was not given any prescription-strength pain medication did not

establish serious bodily injury). Generally, however, we exercise considerable deference

to the fact finder when determining whether a victim suffered serious bodily injury.

Mendenhall v. State, 963 N.E.2d 553, 569 (Ind. Ct. App. 2012), trans. denied. “There is

no bright line rule differentiating ‘bodily injury’ from ‘serious bodily injury.’” Id.

       Here, as a result of Brandon and Jones’s stomping and punching, Tittle had severe

bruising and abrasions of his left arm, including having some skin hanging loose off of

the arm. Tittle also told the treating physician that his pain was a ten on a scale from one

to ten, which by itself would seem to be indicative of extreme pain. A CAT scan

revealed that Tittle had a comminuted fracture of his left orbital socket, meaning it was

broken into little pieces, and a complex fracture of the lamina papyracea, another part of

the eye orbit. Tittle had to have a total of twelve stitches around his left eye. After being

in the emergency room for about four hours, Tittle was discharged with a Vicodin

prescription. We readily conclude a reasonable fact-finder could find this to be enough

                                             11
evidence of serious bodily injury. See Fuller v. State, 875 N.E.2d 326, 333 (Ind. Ct. App.

2007) (holding there was sufficient evidence of serious bodily injury where defendant

punched and kicked victim and pushed her down flight of stairs, and victim had

comminuted eye socket fracture, multiple severe bruises, complained of “sharp pain,” and

was given prescription-strength pain medication), trans. denied, abrogated on other

ground by statute.

                                        III. Sentence

       Brandon’s final argument is that his sixty-year aggregate sentence is inappropriate

under Indiana Appellate Rule 7(B) in light of the nature of the offenses and his character.1

Although Rule 7(B) does not require us to be “extremely” deferential to a trial court’s

sentencing decision, we still must give due consideration to that decision. Rutherford v.

State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the

unique perspective a trial court brings to its sentencing decisions. Id. “Additionally, a

defendant bears the burden of persuading the appellate court that his or her sentence is

inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of
1
  Our reduction of Brandon’s burglary conviction to a Class B felony does not alter his aggregate
sentence.
                                               12
counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224.

        Brandon argues in part that maximum sentences should be reserved only for the

class of offenses and offenders that can be characterized as “the worst.” See Payton v.

State, 818 N.E.2d 493, 498 (Ind. Ct. App. 2004), trans. denied. However, Brandon’s

aggregate sixty-year sentence does not approach the maximum sentence he could have

received, even with our reduction of the Class A burglary conviction to a Class B felony.

With one Class A felony and two Class B felonies, the maximum sentence Brandon could

have received if all the sentences were served consecutively was ninety years, or fifty

plus twenty plus twenty. See I.C. §§ 35-50-2-4 & 35-50-2-5. Thus, we will not review

Brandon’s sentence as if it were a maximum one.

        Regarding the nature of the offenses, Brandon willingly agreed to Dawn’s request

to punch Tittle, a disabled Army veteran, in the mouth a couple of times, lured by the

prospect of also stealing some money from him. Upon arriving at the house, Brandon,

along with Jones, did much more than punch Tittle in the mouth a couple of times.2

Instead, they viciously beat him after finding him passed out in his recliner. Furthermore,


2
 Brandon argues there was conflicting evidence as to whether he actually participated in the beating of
Tittle. Dawn in particular could not recall if Brandon participated in the beating or whether Jones did so
by himself. The evidence most favorable to the convictions and sentence, however, clearly is that
Brandon joined with Jones in stomping and punching Tittle.

                                                   13
rather than just stealing Tittle’s money as Dawn had originally suggested, Brandon and

his cohorts ransacked Tittle’s house looking for items to steal. Brandon also had to be

talked out of stealing Tittle’s car. The nature of the offenses is egregious.

        Turning to Brandon’s character, as an adult, he has a felony conviction for

receiving stolen property and misdemeanor convictions for driving while suspended,

criminal mischief, and battery.3 He also had some juvenile delinquency adjudications,

including one for burglary, and admitted to having smoked marijuana regularly since the

age of sixteen. He was on probation when he committed these offenses. Brandon was

only twenty-one at the time of these offenses and while he had not previously committed

any offenses that were as serious as the current ones, the previous offenses were similar

in character to the current ones and close in time.

        Moreover, regarding Brandon’s character, there was evidence that he was excited

and bragging about the offenses afterwards, demonstrating a complete lack of remorse.

That lack of remorse carried over into Brandon’s statement at his sentencing hearing,

wherein he apologized to his family but not Tittle. Even if Brandon was maintaining his

innocence, he expressed no concern for Tittle’s well-being.                      Instead, he said the

prosecutor’s job was to “destroy[] people’s lives . . . .” Tr. p. 753. He also said, “life is a

bitch,” and said he would pray for his “persecutors” like Jesus Christ did. Id. at 754.

This complete lack of respect and contrition at sentencing, combined with Brandon’s


3
  Unfortunately, Brandon has not included his pre-sentence investigation report in his appendix, nor did
the State file an appendix including it. Brandon’s criminal history was partially related at the sentencing
hearing.
                                                    14
behavior immediately after the crimes were committed, does not reflect well upon his

character.

          We acknowledge Brandon’s argument that his sentence should be closer to that of

Jones, who received a forty-eight-year sentence and whose participation in the offenses

was at least roughly equivalent to Brandon’s. If there is a “‘stark’” disparity between two

co-defendants’ sentences, it may be a factor to consider as to whether the greater of the

two sentences is inappropriate. See Coleman v. State, 952 N.E.2d 377, 385-86 (Ind. Ct.

App. 2011) (quoting Cardwell, 895 N.E.2d at 1226). We do not believe the twelve-year

difference between Brandon’s and Jones’s sentences is “stark.” This is especially true,

given that Jones pled guilty and evidently had the Class B felony conspiracy to commit

robbery charge against him dismissed as part of the plea bargain.4 That alone would

account for the twelve-year difference between Jones’s and Brandon’s sentences.

Additionally, the fact of Jones’s guilty plea would have been a potentially significant

mitigating circumstance in considering his sentence. See Cotto v. State, 829 N.E.2d 520,

525 (Ind. 2005). That circumstance is lacking in Brandon’s case. In sum, despite Jones’s

lesser sentence, we find nothing in either the nature of the offenses or Brandon’s

character that would make his sixty-year sentence inappropriate.

                                              Conclusion

          Under double jeopardy principles, Brandon’s convictions for both Class A felony

robbery and Class A felony burglary cannot stand. To remedy that violation, we direct

4
    Brandon included Jones’s chronological case summary in his appendix for our review.
                                                    15
that the burglary conviction be reduced to a Class B felony and that he be sentenced to

eighteen years on that count, to be served concurrent with the forty-eight-year sentence

for robbery. There is sufficient evidence to support Brandon’s conviction for Class A

felony robbery, and his aggregate sixty-year sentence is not inappropriate. We affirm in

part, reverse in part, and remand for the trial court to amend its records and abstract of

judgment in accordance with this opinion.

      Affirmed in part, reversed in part, and remanded.

VAIDIK, J., and MATHIAS, J., concur.




                                            16
