MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 11 2018, 8:37 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stevonta D. Hill,                                        April 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1709-CR-2196
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1609-F3-35



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018             Page 1 of 17
                                              Case Summary
[1]   Stevonta Hill (“Hill”) appeals his convictions for Count I, Conspiracy to

      Commit Robbery as a Level 3 felony;1 Count XVIII, Use of a Firearm in

      Commission of an Offense;2 and his sentence enhancement.


[2]   We affirm in part and reverse in part.



                                                        Issues
[3]   Hill raises the following two issues on appeal:


                 I.       Whether the trial court abused its discretion when it
                          refused to give Hill’s proffered jury instruction on
                          conspiracy.


                 II.      Whether the trial court erred when it enhanced Hill’s
                          sentence pursuant to the firearms enhancement statute.


                               Facts and Procedural History
[4]   In 2014, Charles Hunter III (“Hunter”) conceived of a plan to rob the Industrial

      Federal Credit Union (“the bank”) located on Meijer Drive in Lafayette, and

      Hill, Michael Mitchell (“Mitchell”), and Ronnie Creed (“Creed”) subsequently

      agreed to rob the bank with Hunter. On August 4, 2014, Hunter borrowed a




      1
          Ind. Code §§ 35-41-5-2(a) (2014) and 35-42-5-1 (2014).
      2
          I.C. § 35-50-2-11.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 2 of 17
      Hyundai automobile from Hill’s sister, Tahtyana Bagsby (“Bagsby”). At

      approximately 9:20 a.m. that same day, Hill, Hunter, Mitchell, and Creed

      entered the bank wearing dark clothing, masks, and gloves, and they demanded

      money from the bank employees. One of the men hit teller Maria Olivio

      (“Olivio”) on the back of her head with a handgun, causing her to “black out a

      little bit” and suffer a concussion. Tr. Vol. II at 85. Both Hill and Creed

      possessed firearms during the robbery. The bank employees gave the four men

      approximately $35,350 in cash and a dye pack with tear gas and red dye that

      looked like $1,000 in $20 bills.


[5]   As the four men drove away from the bank, the dye pack exploded in the car

      and someone threw one of the bags of stolen money out of the vehicle. Hunter

      attempted to clean the red dye off the inside of the Hyundai but was not

      completely successful. He then returned the vehicle to Bagsby.


[6]   The Lafayette Police Department (“LPD”) obtained still photographs from a

      surveillance video of the robbery and distributed them to LPD personnel. One

      of the LPD officers recognized Hunter in one of the still photos, and he was

      aware of Hunter’s associates, including Hill. On August 14, 2014, patrol officer

      Alvin Cudworth (“Officer Cudworth”) of the LPD was on duty and received a

      request to conduct a traffic stop of a vehicle suspected of having false plates and

      of being involved in the bank robbery. Officer Cudworth stopped the vehicle,

      which was Bagsby’s Hyundai. Hill was the driver. After discovering that the

      plates on the Hyundai were for a different vehicle, the LPD impounded the

      vehicle and obtained a search warrant. During the search of the vehicle, the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 3 of 17
      LPD took samples of pink-stained carpet from the vehicle and sent the samples

      to the Indiana State Police laboratory. Testing of the carpet samples revealed

      that the chemical on the stained carpet matched the chemical in the dye pack

      from the August 4 bank robbery.


[7]   On August 9, 2016, Hill testified before a grand jury under a grant of use

      immunity. Hill denied involvement in the bank robbery and testified that he

      had not seen either Mitchell or Hunter on the morning of August 4, 2014. Hill

      further testified that he did not recognize any of the individuals depicted in the

      bank security video and denied knowledge of how the dye stains got into his

      sister’s Hyundai. On September 17, 2016, the grand jury returned an

      indictment charging Hill with nineteen counts: conspiracy to commit robbery,

      as a Level 3 felony; robbery, as a Level 3 felony;3 criminal confinement, as a

      Level 3 felony;4 criminal confinement, as a Level 5 felony;5 robbery, as a Level

      5 felony;6 theft, as a Level 6 felony;7 criminal confinement, as a Level 6 felony;8

      two counts of intimidation, as Level 6 felonies;9 carrying a handgun without a




      3
          I.C. § 35-42-5-1(a).
      4
          I.C. § 35-42-3-3(a) and (b)(2).
      5
          I.C. § 35-42-3-3(a) and (b)(1).
      6
          I.C. § 35-42-5-1(a)(1).
      7
          I.C. § 35-43-4-2(a)(1).
      8
          I.C. § 35-42-3-3(a).
      9
          I.C. § 35-45-2-1(a) and (b)(1).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 4 of 17
      license, as a Class A misdemeanor;10 obstruction of justice, as a Level 6 felony;11

      battery by means of a deadly weapon, as a Level 5 felony; 12 battery resulting in

      moderate bodily injury, as a Level 6 felony;13 criminal recklessness while armed

      with a deadly weapon, as a Level 6 felony;14 pointing a firearm, as a Level 6

      felony;15 perjury, a Level 6 felony;16 pointing a firearm, as a Class A

      misdemeanor;17 intimidation, as a Class A misdemeanor;18 and use of a firearm

      during the commission of an offense. Prior to trial, the court dismissed the

      misdemeanor intimidation charge.


[8]   Hill’s trial proceeded in two phases. The first phase was tried to a jury from

      July 31, 2017 to August 2, 2017 and consisted of all charges except the firearm

      sentencing enhancement and the perjury charge. In the second phase, the latter

      charges were tried to the bench following Hill’s jury waiver as to those two

      charges. At the close of evidence, the court dismissed Count XIV, pointing a

      firearm as a Level 6 felony, per the State’s request.




      10
           I.C. § 35-47-2-1(a)(e).
      11
           I.C. § 35-44.1-2-2(a)(3).
      12
           I.C. § 35-42-2-1(b) and (f)(2).
      13
           I.C. § 35-42-2-1(b) and (d)(1).
      14
           I.C. § 35-42-2-2(a) and (b)(1)(A).
      15
           I.C. § 35-47-4-3(b).
      16
           I.C. § 35-44.1-2-1(a)(1).
      17
           I.C. § 35-47-4-3(b).
      18
           I.C. § 35-45-2-1(a).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 5 of 17
[9]    At trial, Hill requested that the court include one of the following two

       instructions on conspiracy:


               (1) Conspiracies cannot be established by a mere suspicion.
                   Evidence of mere relationship or association between the
                   parties do not show a conspiracy. Johnson v. State, 1933, 208
                   Ind. 89, 95, 194 N.E. 619; Kelley v. State, 1936, 210 Ind. 380,
                   385, 3 N.E.2d 65; Weer v. State, 1941, 219 Ind. 217, 232, 36
                   N.E.2d 787, 37 N.E.2d 537; Shonfeld v. State, 1942, 219 Ind.
                   654, 666, 667, 40 N.E.2d 700; Eacock v. State, 1907, 169 Ind.
                   488, 502, 82 N.E. 1039; § 10-1101, Burns’ 1942 Replacement,
                   supra.


                   Coughlin v. State, 228 Ind. 393, 395, 92 N.E.2d 718, 719 (1950)


               (2) Conspiracies cannot be established by mere suspicion, nor
                   does evidence of mere relationship between parties or
                   association show “conspiracy,” but there must be evidence to
                   prove agreement directly or such state of facts that agreement
                   may be legally inferred, though agreement need not be proved
                   by direct evidence.


                   Johnson v. State, 208 Ind. 89, 194 N.E. 619 (1935)


       Appellant’s App. at 58-59. The trial court denied Hill’s two proposed

       instructions on conspiracy because the content of those instructions was already

       contained in other jury instructions.


[10]   The jury found Hill guilty on all charges, and the trial court found Hill guilty of

       perjury and unlawful use of a firearm as an enhancement. On August 28, 2017,

       the trial court held a sentencing hearing. Due to double jeopardy concerns, the


       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 6 of 17
       trial court entered a judgment of conviction only on Count I, Conspiracy to

       Commit Robbery as a Level 3 felony; Count II, Robbery as a Level 3 felony;

       Count XVI, Carrying a Handgun without a License as a Class A misdemeanor;

       Count XVII, Obstruction of Justice as a Level 6 felony; Count XVIII, Use of

       Firearm in Commission of an Offense; and Count XIX, Perjury, a Level 6

       felony. The court merged the remaining charges into Count II, the robbery

       conviction.


[11]   The court sentenced Hill to twelve years imprisonment on Count I; twelve years

       on Count II; one year on Count XVI; two and a half years on Count XVII; and

       one and a half years on Count XIX. The court ordered the sentences on Counts

       I, II, and XVI to be served concurrent with one another. It ordered the

       sentences on Counts XVII and XIX to be served concurrent to one another but

       consecutive to the sentences on Counts I, II and XVI. The trial court enhanced

       the sentence on Count II by an additional term of five years based on the

       sentencing enhancement in Count XVIII. Hill’s total sentence is nineteen and a

       half years to be executed in the Indiana Department of Correction. This appeal

       ensued.



                                  Discussion and Decision
                       Jury Instructions on Conspiracy Charge
[12]   Hill appeals the trial court’s denial of his proposed jury instructions on the

       conspiracy to commit robbery charge.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 7 of 17
               Upon review of a trial court’s decision to give or refuse a jury
               instruction, we apply an abuse of discretion standard. Treadway
               v. State, 924 N.E.2d 621, 636 (Ind. 2010) (internal citation
               omitted). “[T]his Court considers: (1) whether the instruction
               correctly states the law; (2) whether there is evidence in the
               record to support the giving of the instruction; and (3) whether
               the substance of the tendered instruction is covered by other
               instructions which are given.” Guyton v. State, 771 N.E.2d 1141,
               1144 (Ind. 2002) (internal citation omitted). Reversal arises
               “only if the appellant demonstrates that the instruction error
               prejudices his substantial rights.” Treadway, 924 N.E.2d at 636
               (internal citation omitted).


       Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). Moreover, “[w]e consider

       jury instructions as a whole and in reference to each other and do not reverse

       the trial court ... unless the instructions as a whole mislead the jury as to the law

       in the case.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013) (quotation

       and citation omitted), trans. denied.


[13]   The substance of Hill’s proposed jury instructions was contained in other final

       jury instructions the trial court gave—specifically, Court’s Instruction No.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 8 of 17
3.5700;19 Court’s Instruction No. 2.1600;20 Court’s Instruction No. 9.0120;21 and

Court’s Instruction No. 12.0100.22 So it is not surprising that Hill has failed to

demonstrate how he was in any way prejudiced by the trial court’s refusal to




19
     This instruction stated, in relevant part:

           A person conspires to commit a felony when, with intent to commit the felony, he agrees with
           another person to commit the felony. A conspiracy to commit a felony is a felony of the same class
           as the underlying felony. The State must allege and prove that either the person or the person with
           whom he agreed performed an overt act in furtherance of the agreement.
           ***
                                                     Count I
           Before you may convict the Defendant of Conspiracy to Commit Robbery [as] a Level 5 felony, as
           charged in Count I, the State must have proved each of the following elements beyond a reasonable
           doubt:
           1. The Defendant
           2. agreed with other persons, Charles D. Hunter III, Michael A. Mitchell, and/ or unknown others,
           to commit the crime of Robbery
           3. with the intent to commit the crime, and
           4. Defendant and the other persons, Charles D. Hunter III, Michael A. Mitchell, and/or unknown
           others performed an overt act in furtherance of the agreement …
           ***
           If the State failed to prove each of these elements beyond a reasonable doubt, you must find the
           Defendant not guilty of the crime of Conspiracy to Commit Robbery, a Level 5 felony, charged in
           Count I.
           If the State proved elements 1, 2, 3, and 4 beyond a reasonable doubt and the State further proved
           beyond a reasonable doubt that
                    a. a deadly weapon, to wit: a handgun, was used in the robbery or
                    b. the robbery resulted in bodily injury to any person other than a conspirator,
           you may find the Defendant guilty of Conspiracy to Commit Robbery, a Level 3 felony, charged in
           Count I.
Appellant’s App. at 36.
20
   This instruction stated, in relevant part: “A person who knowingly or intentionally aids, induces, or
causes another person to commit an offense commits that offense.” Id. at 48.
21
     This instruction explained the meaning of the terms “intentionally” and “knowingly.” Id.
22
   This instruction explained the meaning of the terms “direct evidence” and “circumstantial evidence” and
gave examples of each term. Id. at 52.

Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018                  Page 9 of 17
       give his proposed jury instructions. That refusal was not an abuse of the trial

       court’s discretion. Hernandez, 45 N.E.3d at 376.


                              Firearm Sentence Enhancement
[14]   Hill challenges the five-year sentence enhancement the trial court entered

       pursuant to Indiana Code Section 35-50-2-11. Indiana Code section 35-50-2-11

       (2014), the firearm enhancement statute, provides:


               (a) As used in this section, “firearm” has the meaning set forth in
               IC 35-47-1-5.


               (b) As used in this section, “offense” means:


                        (1) a felony under IC 35-42 that resulted in death or
                        serious bodily injury;


                        (2) kidnapping; or


                        (3) criminal confinement as a Level 2 or Level 3 felony.


               (c) The state may seek, on a page separate from the rest of a
               charging instrument, to have a person who allegedly committed
               an offense sentenced to an additional fixed term of imprisonment
               if the state can show beyond a reasonable doubt that the person
               knowingly or intentionally used a firearm in the commission of
               the offense.


               (d) If the person was convicted of the offense in a jury trial, the
               jury shall reconvene to hear evidence in the enhancement
               hearing. If the trial was to the court, or the judgment was entered


       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 10 of 17
               on a guilty plea, the court alone shall hear evidence in the
               enhancement hearing.


               (e) If the jury (if the hearing is by jury) or the court (if the hearing
               is to the court alone) finds that the state has proved beyond a
               reasonable doubt that the person knowingly or intentionally used
               a firearm in the commission of the offense, the court may
               sentence the person to an additional fixed term of imprisonment
               of between five (5) years and twenty (20) years.


[15]   Hill was indicted with criminal confinement as a Level 3 felony, Appellant’s

       App. at 106, and the jury returned a verdict of guilty on that count, i.e., Count

       IV. Hill was also indicted with the use of a firearm “in the commission of

       criminal confinement as a Level 2 or Level 3 felony,” Id. at 121, and the trial

       court found him guilty on that count, i.e., Count XVIII. However, due to

       double jeopardy concerns, the trial court only entered a judgment of conviction

       on Count I (conspiracy to commit robbery), Count II (robbery), Count XVI

       (carrying a handgun without a license), Count XVII (obstruction of justice),

       Count XVIII (use of firearm in commission of an offense for purposes of

       sentence enhancement), and Count XIX (perjury). For all remaining counts,

       including Count IV (criminal confinement as a Level 3 felony), the trial court

       did not enter judgments of conviction but rather merged them with Count II

       (robbery).


[16]   Hill correctly points out that Count II, robbery as a Level 3 felony, cannot

       support a firearm sentence enhancement. Count II involves robbery while

       armed with a deadly weapon or that results in bodily injury, I.C. § 35-42-5-1(a),


       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 11 of 17
       but the firearm enhancement statute only applies to felonies under IC 35-42 that

       result in serious bodily injury, I.C. § 35-50-2-11(b). Compare I.C. § 35-31.5-2-29

       (defining “bodily injury” as “any impairment of physical condition, including

       physical pain”), with I.C. § 35-31.5-2-292 (defining “serious bodily injury” 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.”). The evidence shows that Hill was armed with a gun

       during the robbery and that bank teller Olivio “blacked out a little bit” and

       suffered a concussion as a result of the blow to her head with a firearm. Tr.

       Vol. II at 85. Thus, the State only charged Hill with robbery while armed with

       a deadly weapon or involving “bodily injury”—a Level 3 felony—and the

       evidence supports the finding Hill committed that offense, rather than one

       involving “serious” bodily injury. I.C. § 35-42-5-1(a).


[17]   However, the State contends that Count IV—criminal confinement as a Level 3

       felony—supported the five-year sentence enhancement pursuant to Indiana

       Code Section 35-50-2-11(b)(3), even though Count IV was merged and the trial

       court did not enter a judgment of conviction on it. The State avers that the

       language in section (e) of the firearm enhancement statute—which states that

       the court may enhance a sentence if “the state has proved beyond a reasonable

       doubt that the person knowingly or intentionally used a firearm in the

       commission of the offense”—does not require a judgment of conviction of the

       enumerated offense, only that the State prove such offense beyond a reasonable


       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 12 of 17
       doubt. And the State notes that it did prove Count IV beyond a reasonable

       doubt, as shown by the jury’s guilty verdict on that count.


[18]   Resolution of this issue requires that we construe the meaning of Indiana Code

       Section 35-50-2-11, the firearm enhancement statute. Statutory construction

       and interpretation are matters of law and we review them de novo. E.g., Suggs

       v. State, 51 N.E.3d 1190, 1193 (Ind. 2016).


               When construing a statute our primary goal is to ascertain the
               legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind.
               2012). To discern that intent, we look first to the statutory
               language itself and give effect to the plain and ordinary meaning
               of statutory terms. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind.
               2015). “If a statute is unambiguous, that is, susceptible to but
               one meaning, we must give the statute its clear and plain
               meaning.” State v. Evans, 810 N.E.2d 335, 337 (Ind. 2004)
               (quotation omitted). However, if a statute admits of more than
               one interpretation, then it is ambiguous; and we thus resort to
               rules of statutory interpretation so as to give effect to the
               legislature’s intent. Adams, 960 N.E.2d at 798. “For example,
               we read the statute as whole, avoiding excessive reliance on a
               strict, literal meaning or the selective reading of individual
               words.” Id. And we seek to give a practical application of the
               statute by construing it in a way that favors public convenience
               and avoids an absurdity, hardship, or injustice. Merritt v. State,
               829 N.E.2d 472, 475 (Ind. 2005). Further, criminal statutes must
               be strictly construed against the State, and “may not be enlarged
               beyond the fair meaning of the language used....” Yao v. State,
               975 N.E.2d 1273, 1279 (Ind. 2012) (internal citation omitted).


       Id.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 13 of 17
[19]   The State cites no authority—other than the language of the statute itself—for

       its contention that a sentence enhancement can be applied to a crime for which

       a defendant was not convicted. Yet it is well-settled that a sentence cannot be

       based on a jury verdict of guilty unless a judgment of conviction is entered on

       that verdict. See, e.g., Jerden v. State, 37 N.E.3d 494, 501 (Ind. Ct. App. 2015)

       (quoting Haddix v. State, 827 N.E.2d 1160, 1165 (Ind. Ct. App. 2005), trans.

       denied) (“‘A verdict is the jury’s finding of guilt, but such finding carries no legal

       consequences unless the trial court enters a judgment of conviction on the

       verdict.’”)


               A verdict of guilty can certainly be a significant legal event, but
               only if a court later enters judgment on it. … [A] verdict of guilt
               on which no judgment or sentence has been entered would not
               constitute legal grounds for incarceration. We treat the
               judgments and sentences entered by courts in a different way
               [than we treat jury verdicts alone].


       Carter v. State, 750 N.E.2d 778, 780 (Ind. 2001) (explaining why it was not

       necessary for double jeopardy purposes to vacate the jury’s guilty verdict on a

       lesser included offense).


[20]   Moreover, the State emphasizes the “proved beyond a reasonable doubt”

       language of section (e) of the statute while ignoring section (d), which clearly

       requires a hearing on an enhancement after “the person was convicted of the

       offense.” I.C. § 35-50-2-11(d) (emphasis added). But when we interpret a

       statute, we examine the statute as a whole and “avoid interpretations that

       depend on selective reading of individual words that lead to irrational and

       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 14 of 17
       disharmonizing results.” ESPN, Inc. v. University of Notre Dame Police Dept., 62

       N.E.3d 1192, 1195 (Ind. 2016) (quotation and citation omitted). The only

       harmonious interpretation of both sections (d) and (e) of the firearm

       enhancement statute is that section (d) requires a hearing on enhancement if the

       defendant is convicted of an enumerated offense and, if the trier of fact at the

       hearing finds that the State proved beyond a reasonable doubt that the

       defendant used a firearm while engaging in the offense of which he was convicted,

       the court may enhance the sentence for the underlying offense.


[21]   Given well-settled case law, the language of the statute as a whole, and our rule

       of lenity requiring that penal statutes be construed strictly against the State, we

       reach the logical conclusion that a sentence cannot be enhanced pursuant to the

       firearm enhancement statute unless a judgment of conviction is entered against

       the defendant for one of the enumerated offenses. Therefore, Hill’s firearm

       enhancement cannot be supported by the jury verdict finding him guilty of

       criminal confinement as a Level 3 felony because the trial court did not enter a

       judgment of conviction on that verdict.


[22]   The trial court improperly enhanced Hill’s robbery sentence by five years; the

       crime of robbery as a Level 3 felony cannot support a firearm sentence

       enhancement under Indiana Code Section 35-50-2-11, nor was there any other

       conviction that would support such an enhancement. Therefore, we must reverse

       the judgment of conviction for Count XVIII, Use of Firearm in Commission of

       an Offense, and vacate the five-year sentence enhancement entered pursuant to



       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 15 of 17
       Indiana Code Section 35-50-2-11.23 See e.g., Hull v. State, 799 N.E.2d 1178, 1181

       (Ind. Ct. App. 2003) (“A sentence in contravention of statutory authority

       constitutes “fundamental error” and cannot be ignored by a court of review.”).



                                                   Conclusion
[23]   The trial court did not abuse its discretion when it refused to give Hill’s

       proffered jury instruction on conspiracy, since the substance of that instruction

       was addressed by the other instructions the court gave the jury. Therefore, we

       affirm Hill’s conspiracy conviction under Count I. However, the trial court

       erred in enhancing Hill’s sentence by five years under the firearm enhancement

       statute because Hill was not convicted of any offense that would support such

       an enhancement. Thus, we reverse the judgment of conviction for Count XVIII

       and vacate the five-year sentence enhancement entered pursuant to Indiana

       Code Section 35-50-2-11.




       23
           The State has provided us with no authority for its request that we vacate the robbery conviction—a
       perfectly legal judgment—for the sole purpose of ordering the trial court to enter judgment of conviction on a
       jury verdict on a different charge—i.e., criminal confinement as a Level 3 felony—that would support a
       firearm enhancement. Unlike in Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), cited by the State, we have
       no double jeopardy violation to remedy here as there are not two convictions involving the same evidence,
       but only one conviction (robbery) and one jury verdict (criminal confinement). And, as we have already
       noted, a merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a
       sentence, is “unproblematic” as far as double jeopardy is concerned. Carter, 750 N.E.2d at 781.
       In short, if the State wanted Hill’s sentence enhanced for use of a firearm, it should have requested that the
       trial court enter judgment on a charge that would support such an enhancement.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018              Page 16 of 17
[24]   Affirmed in part, reversed in part.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2196 | April 11, 2018   Page 17 of 17
