      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    FILED
      regarded as precedent or cited before any                            Feb 17 2017, 9:13 am

      court except for the purpose of establishing                             CLERK
      the defense of res judicata, collateral                              Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Tyler E. Brant                                           Curtis T. Hill, Jr.
      Brown, DePrez & Johnson, P.A.                            Attorney General of Indiana
      Shelbyville, Indiana                                     Ellen H. Meilaender
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Danny L. Hersley, Jr.,                                   February 17, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               16A05-1602-CR-364
              v.                                               Appeal from the Decatur Circuit
                                                               Court
      State of Indiana,                                        The Honorable Timothy B. Day,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               16C01-1509-F3-633



      Mathias, Judge.


[1]   Danny L. Hersley, Jr. (“Hersley”) was convicted in Decatur Circuit Court of

      Level 3 felony Robbery and was adjudicated a habitual offender. He appeals


      Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017      Page 1 of 8
      both his conviction and adjudication, challenging the sufficiency of the

      evidence. He also argues that the trial court committed a double jeopardy

      violation when it consolidated the guilty verdicts for Level 5 felony robbery and

      Class A misdemeanor theft with the Level 3 felony robbery guilty verdict.

[2]   We affirm.


                                 Facts and Procedural History

[3]   In the early morning hours on September 19, 2015, Uriah Brumley (“Brumley”)

      and Hersley were outside Brumley’s cousin’s home on North Carver Street in

      Greensburg, Indiana. Hersley was a friend of Brumley’s father, and they had

      known each other for several years. Hersley was at the house to purchase drugs.


[4]   At some point, Hersley hit Brumley in the back of the head. Brumley fell to the

      ground, and Hersley punched the right side of Brumley’s face. Brumley lost

      consciousness for several seconds after he fell to the ground. Hersley then stole

      approximately $250 and methamphetamine from Brumley’s pockets. Hersley

      fled the scene on his mountain bike.

[5]   Brumley reported the incident to the police. Officer Matthew Terkhorn of the

      Greensburg Police Department interviewed Brumley and took photographs of

      Brumley’s injuries. The officer observed that the right side of Brumley’s face

      was swollen and scraped. Tr. p. 233. Brumely’s father also observed that

      Brumely’s face was red, he had a knot on the back of his head, and he had red

      marks on his ribs. Tr. p. 324.



      Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017   Page 2 of 8
[6]   Hersley was charged with Level 2 felony robbery, Level 3 felony robbery, Level

      5 felony robbery and Class A misdemeanor theft. The State also alleged that he

      was a habitual offender. A bifurcated jury trial commenced on December 15,

      2015.

[7]   At trial, Brumley testified that he was a drug user and had previously sold

      methamphetamine to Hersley and one of Hersley’s friends. Transcribed

      telephone calls between Hersley from jail and various individuals were also

      admitted at trial. During the recorded conversations with his friends, Hersley

      admitted to taking “dope” from Brumley. Ex. Vol., State’s Exs. 14-36. Hersley

      stated that he took the “dope” because his friend “Special K” gave Brumley

      $150 to purchase 1.5 grams of methamphetamine, but Brumley gave “Special

      K” rock salt. Id.; see also Tr. p. 425. In the recorded calls, Hersley denied hitting

      Brumley or taking his money.

[8]   Joshua Motz testified that he saw Hersley and Brumley together on Carver

      Street on September 19, 2015. He stated that he saw them walk away from each

      other in opposite directions and did not witness an altercation. Tr. pp. 258-60.

      In the recorded phone calls discussed above, Hersley repeatedly tried to find out

      if Motz was going to testify at trial. Ex. Vol., State’s Exs. 14-36. Hersley

      wanted Motz to testify that Hersley had not touched Brumley. In the phone

      calls, Hersley threatened Motz when he was told that Motz initially was not

      cooperating with the police. Hersley also asked his friends to contact Brumley’s

      father to discuss the case.



      Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017   Page 3 of 8
[9]    Hersley was found not guilty of Level 2 felony robbery, but guilty of Level 3

       felony robbery, Level 5 felony robbery, and Class A misdemeanor theft. The

       trial court consolidated the Level 5 felony robbery and misdemeanor theft

       verdicts with the Level 3 felony robbery verdict. The court then entered

       judgment of conviction on the Level 3 felony robbery guilty finding. Hersley

       was also adjudicated a habitual offender. The trial court ordered Hersley to

       serve an aggregate twenty-two-year sentence executed in the Department of

       Correction. Hersley now appeals.


                                          Sufficient Evidence

[10]   Hersley challenges the sufficiency of the evidence on the Level 3 robbery

       conviction and the habitual offender adjudication. Our standard of review in

       claims of insufficient evidence is well settled: we neither reweigh the evidence

       nor judge the credibility of the witnesses, and we consider only the evidence

       most favorable to the verdict and the reasonable inferences that can be drawn

       from this evidence. Knight v. State, 42 N.E.3d 990, 993 (Ind. Ct. App. 2015). We

       will not disturb the jury’s verdict if substantial evidence of probative value

       supports it. Id. As an appellate court, we respect the jury’s exclusive province to

       weigh conflicting evidence. Id.


                                                   A. Robbery

[11]   To convict Hersley of Level 3 robbery, the State was required to prove that he

       knowingly or intentionally took property from Brumley by using force or the

       threat of force, which resulted in bodily injury to Brumley. Appellant’s App. p.


       Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017   Page 4 of 8
       17; Ind. Code § 35-42-5-1. Hersley argues that the State failed to prove that

       Brumley suffered bodily injury, the element that enhanced the felony from a

       Level 5 felony to a Level 3 felony.


[12]   Brumley testified that he was hit in the head and fell to the ground. He stated he

       was then punched in the face and lost consciousness for several seconds. Officer

       Terkhorn responded to Brumley’s report that he had been robbed. He took

       photographs of Brumley’s injuries, which were admitted at trial. The officer

       observed that the right side of Brumley’s face was swollen and scraped. Tr. p.

       233. Brumely’s father testified that after the robbery, Brumely’s face was red, he

       had a knot on the back of his head, and he had red marks on his ribs. Tr. p. 324.

       Brumley unequivocally named Hersley as the person who physically assaulted

       him and took his money and methamphetamine.


[13]   Hersley’s argument that the State failed to prove that Brumley suffered bodily

       injury is simply a request to reweigh the evidence and the credibility of the

       witnesses, which our court will not do. Hersley observes that Brumley’s

       testimony at trial was not entirely consistent with his pre-trial statements.

       Hersley also cites his and Motz’s testimonies that Hersley did not touch

       Brumley. However, it was within the exclusive province of the jury to weigh

       Brumley’s credibility and the State’s other evidence against Hersley’s and

       Motz’s testimonies. For these reasons, we conclude that the State presented

       sufficient evidence from which a reasonable fact-finder could conclude that

       Hersley used force to rob Brumley causing Brumley to suffer bodily injury.



       Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017   Page 5 of 8
                                                 B. Habitual Offender

[14]   Citing Indiana Code section 35-50-2-8(d), Hersley argues that the State failed to

       prove that he was a habitual offender. Specifically, he claims that the evidence

       was insufficient to establish that not more than ten years had elapsed between

       his last release from imprisonment, probation, or parole and the date of the

       instant offense. Subsection (d) of the habitual offender statute applies to a

       person who has allegedly committed a Level 5 or 6 felony. In this case, Hersley

       was convicted of a Level 3 felony; therefore, subsection (d) does not apply.


[15]   Because Hersley was convicted of a Level 3 felony, we must look at subsection

       (b) of the habitual offender statute. Subsection (b) of Indiana Code section 35-

       50-2-8 defines a habitual offender as a person convicted of a Level 1 through

       Level 4 felony “if the state proves beyond a reasonable doubt that: (1) the

       person has been convicted of two (2) prior unrelated felonies; and (2) at least

       one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D

       felony.”

[16]   As required by subsection (b), the State proved that Hersley was previously

       convicted of two unrelated felonies: Class C felony forgery in 1989 and Class C

       felony forgery in 2000.1 Therefore, the State proved that Hersley is a habitual

       offender as defined under Indiana Code section 35-50-2-8(b).




       1
           The State also proved that Hershey was convicted of Class D felony theft in 1995.

       Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017   Page 6 of 8
                                            Double Jeopardy

[17]   Article 1, Section 14 of the Indiana Constitution provides in pertinent part: “No

       person shall be put in jeopardy twice for the same offense.” Hersley argues that

       the trial court violated the double jeopardy clause by failing to vacate the guilty

       verdicts for Level 5 felony robbery and Class A misdemeanor theft.


[18]   “A defendant's constitutional rights are violated when a court enters judgment

       twice for the same offense, but not when a defendant is simply found guilty of a

       particular count.” Green v. State, 856 N.E.2d 703 (Ind. 2006). A guilty verdict

       can be a significant legal event, “but only if a court later enters judgment on it.”

       Cleary v. State, 23 N.E.3d 664, 668 (Ind. 2015); see also Gardiner v. State, 928

       N.E.2d 194, 197 (Ind. 2010) (stating that “the penal consequences of a guilty

       finding are trigged only by the entry of a judgment of conviction”).


[19]   When no judgment of conviction is entered on the jury’s verdict, it is

       unnecessary to vacate the verdict. See Carter v. State, 750 N.E.2d 778, 781 n.8

       (Ind. 2001) (“[A] claim of multiple punishment for the same offense requires

       multiple judgments of conviction, entered by the trial court.”); see also Green,

       856 N.E.2d at 703 (Ind. 2006) (holding “[w]here the court merges the lesser-

       included offense without imposing judgment, there is no need to remand on

       appeal to vacate.”). “[M]ore harm than good may result if a trial court ‘vacates'

       a jury verdict not reduced to judgment. If a conviction for a greater offense is

       reversed . . . a conviction for the lesser offense may remain valid.” Carter, 750

       N.E.2d at 781 n.9.


       Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017   Page 7 of 8
[20]   Here, faced with double jeopardy concerns, the trial court properly declined to

       enter judgment of conviction on the Level 5 felony robbery and Class A

       misdemeanor theft guilty verdicts. The court “consolidated” the guilty verdicts

       on those offenses with the guilty verdict for Level 3 felony robbery, and only

       entered judgment of conviction for Level 3 felony robbery. Appellant’s App. p.

       39. Because the trial court only entered judgment of conviction on the Level 3

       felony robbery guilty verdict, Hersley has not established a double jeopardy

       violation.


                                                 Conclusion

[21]   We affirm Hersley’s Level 3 felony robbery conviction and habitual offender

       adjudication.


[22]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 16A05-1602-CR-364 | February 17, 2017   Page 8 of 8
