                                            Dec 19 2014, 10:16 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

MARK LEEMAN                                    GREGORY F. ZOELLER
Cass County Public Defender                    Attorney General of Indiana
Logansport, Indiana
                                               KARL M. SCHARNBERG
                                               Deputy Attorney General
                                               Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

CHRISTOPHER DUNCAN,                            )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )       No. 09A05-1312-CR-613
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                      APPEAL FROM THE CASS CIRCUIT COURT
                          The Honorable Leo T. Burns, Judge
                           Cause No. 09C01-1108-FA-010


                                   December 19, 2014


                              OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
        Christopher Duncan appeals following his convictions of class C felony Attempted

Battery by Means of a Deadly Weapon,1 class D felony Identity Deception,2 class D

felony Pointing a Firearm,3 class D felony Possession of Marijuana,4 and class D felony

Resisting Law Enforcement.5 Duncan presents the following restated issues for our

review:

        1. Did the trial court abuse its discretion in admitting certain evidence?

        2. Did the State present sufficient evidence to support Duncan’s identity
           deception conviction?

        3. Do Duncan’s convictions of attempted battery by means of a deadly
           weapon, pointing a firearm, and resisting law enforcement violate
           principles of double jeopardy?

        We affirm in part, reverse in part, and remand with instructions.

        On August 15, 2011, Indiana State Trooper Joshua Rozzi was on patrol in

Logansport in his marked police cruiser. At around 10:30 p.m., after witnessing a vehicle



        1
          Ind. Code Ann. § 35-42-2-1 (West, Westlaw 2011) (battery); Ind. Code Ann. § 35-41-5-1 (West,
Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular
Technical Session of the 118th General Assembly) (attempt). Effective July 1, 2014, battery with a
deadly weapon was reclassified as Level 5 felony. Because the offense in this case was committed prior
to that date, it retains its prior classification as a class C felony.
        2
           Ind. Code Ann. § 35-43-5-3.5(a) (West, Westlaw 2011). Effective July 1, 2014, the offense was
reclassified as a Level 6 felony. Because the offense in this case was committed prior to that date, it
retains its prior classification as a class D felony.
        3
           Ind. Code Ann. § 35-47-4-3 (West, Westlaw 2011). Effective July 1, 2014, pointing a firearm
was reclassified as a Level 6 felony. Because the offense in this case was committed prior to that date, it
retains its prior classification as a class D felony.
        4
           Ind. Code Ann. § 35-48-4-11 (West, Westlaw 2011). Effective July 1, 2014, this offense was
reclassified as a Level 6 felony. Because the offense in this case was committed prior to that date, it
retains its prior classification as a class D felony.
        5
           Ind. Code Ann. § 35-44-3-3 (West, Westlaw 2011). Effective July 1, 2014, this offense has
been reclassified as a Level 6 felony. Because the offense in this case was committed prior to that date, it
retains its prior classification as a class D felony.


                                                     2
turn without signaling, Officer Rozzi activated his emergency lights and initiated a traffic

stop.   When Officer Rozzi approached the vehicle, he detected the odor of burnt

marijuana. He then made contact with the female driver and male passenger, neither of

whom were able to provide identification.        The woman identified herself as Gerrie

Walker and the man identified himself as George F. Walker, although he was later

identified as Duncan. Officer Rozzi returned to his car to run the names he had been

given and to call for a canine handler.

        Sergeant John Rogers of the Logansport Police Department, a canine handler,

arrived within three or four minutes of Officer Rozzi’s call. Upon arriving at the scene,

Sergeant Rogers conferred with Officer Rozzi, and it was agreed that Trooper Rozzi

would take the female driver back to his car while Sergeant Rogers dealt with Duncan.

As Sergeant Rogers reached the passenger door of the stopped vehicle, he saw that

Sergeant Travis Yike and Officer Nathan Garrison, both of the Logansport Police

Department, had arrived and were standing on the sidewalk. Sergeant Rogers also

detected the odor of burnt marijuana, and he tapped on the door and asked Duncan to step

out of the car. Duncan complied, and when asked if there was anything illegal in the car,

responded “Not that I know of.” Transcript at 199. At that point, Duncan turned and

began walking away from Sergeant Rogers. Duncan disregarded Sergeant Rogers’s

repeated commands to stop, and instead began to run. Sergeant Rogers, Sergeant Yike,

and Officer Garrison all gave chase.

        When the foot pursuit began, Sergeant Rogers drew his TASER and readied it for

use. As Duncan reached the other side of the street, Sergeant Rogers saw the flash of a

                                             3
gun being fired over Duncan’s left shoulder and felt a projectile whiz past the left side of

his face. Sergeant Rogers then deployed his TASER and the probes lodged in Duncan’s

back. Duncan immediately fell to the ground, and as he did so, Sergeant Rogers saw a

black handgun fall to the ground. Sergeant Rogers placed his foot on the gun and called

out “10-32,” which is the police code for a gun. Id. at 211. Later inspection revealed that

the gun was a 9 mm Hi-Point handgun.

       Duncan was then transported to the local jail and booked. During the book-in

procedure, he again identified himself as “George Walker, Jr.” and gave a date of birth of

April 6, 1967. When Officer Chad Wagner, who transported Duncan to jail, observed

signs of intoxication and asked Duncan if he had been drinking, Duncan responded he

had not been drinking, but that he had been smoking marijuana. Additionally, when

Duncan overheard Officer Wagner and another officer discussing what charges to list on

the jail intake form, Duncan stated that he thought the gun was a BB gun, and that if he

had known it was a real gun, he would have turned around and shot at the officers.

Officer Wagner later discovered Duncan’s true identity.         Additionally, when police

searched the car in which Duncan had been a passenger, they discovered a bag under the

passenger seat containing rolling papers, flavored cigar wraps used for rolling marijuana,

numerous partially burnt marijuana cigarettes, and 39.53 grams of marijuana.

       A few days after his arrest, Duncan placed a phone call to Gerrie Walker from the

jail. Based on that phone conversation, police obtained a search warrant for a vacant

house owned by Donald Vernon, Gerrie’s stepfather. Inside the garage, police found a

black backpack and two black suitcases. In the bags, the officers found Duncan’s social

                                             4
security card and birth certificate, along with two marijuana pipes, a marijuana grinder,

cigar wraps used for rolling marijuana, a small amount of marijuana, and a bag

containing over 80 rounds of 9 mm ammunition.

       As a result of these events, Duncan was charged as follows: Count I, attempted

murder, a class A felony; Count II, attempted aggravated battery, a class B felony; Count

III, attempted battery by means of a deadly weapon, a class C felony; Count IV, identity

deception as a class D felony; Count V, pointing a firearm as a class D felony; Count VI,

possession of marijuana as a class D felony; and Count VII, resisting law enforcement as

a class D felony. A seven-day jury trial commenced on October 28, 2013. Duncan’s

defense at trial was that he did not intentionally fire at the officers, but that his hands had

clenched as a result of being stunned by the TASER, causing him to involuntarily pull the

trigger. At the conclusion of the evidence and argument, the jury acquitted Duncan of

Counts I and II and convicted him of the remaining counts. Duncan was sentenced to an

aggregate term of thirteen years executed. Duncan now appeals.

                                              1.

       Duncan first argues that the trial court erred in admitting into evidence the

marijuana, drug paraphernalia, and ammunition discovered in the bags located in Donald

Vernon’s garage. The decision to admit or exclude evidence lies within the trial court’s

sound discretion. Filice v. State, 886 N.E.2d 24 (Ind. Ct. App. 2008), trans. denied. An

abuse of discretion occurs when the trial court’s decision is against the logic and effect of

the facts and circumstances before it. Dixon v. State, 967 N.E.2d 1090 (Ind. Ct. App.

2012). We will not reverse absent a showing of manifest abuse of discretion resulting in

                                              5
the denial of a fair trial. Johnson v. State, 831 N.E.2d 163 (Ind. Ct. App. 2005), trans.

denied. Moreover, even if the trial court abuses its discretion in admitting evidence, we

will leave the judgment undisturbed if the error was harmless. Granger v. State, 946

N.E.2d 1209 (Ind. Ct. App. 2011).

      Duncan argues that the evidence recovered from Vernon’s garage “was irrelevant

as it did not prove nor disprove what had actually happened.” Appellant’s Brief at 17.

According to Duncan, “[t]his case was about whether [Duncan] either intentionally fired

a firearm at police or involuntarily fired the gun after being stunned by a TASER.” Id.

Duncan argues further that any probative value the evidence possessed was substantially

outweighed by the danger of unfair prejudice. Duncan contends that the evidence “only

served to inflame the passions of the jury by giving the impression that [Duncan] was a

dangerous man associated with drugs and large amounts of ammunition.” Id. at 17-18.

      Evidence is relevant if it has any tendency to make the existence of a fact that is of

consequence to the determination of an action more or less probable than it would be

without the evidence. Ind. Evidence Rule 401. As a general matter, relevant evidence is

admissible, and irrelevant evidence is not. Ind. Evidence Rule 402. A trial court may

exclude relevant evidence if its probative value is substantially outweighed by the danger

of, among other things, unfair prejudice. Ind. Evidence Rule 403. “The danger of unfair

prejudicial impact arises from the potential for a jury to substantially overestimate the

value of the evidence, or its potential to arouse or inflame the passions or sympathies of

the jury.” Wages v. State, 863 N.E.2d 408, 412 (Ind. Ct. App. 2007), trans. denied.



                                            6
       We first address Duncan’s arguments concerning the admission of the

ammunition.      With respect to relevance, Duncan asserts that “the ammunition had

nothing to do with any issue in this case at all[.]” Appellant’s Brief at 17. We disagree.

The ammunition found in Vernon’s garage was the same caliber as the ammunition in the

gun used in the commission of this crime. Moreover, the ammunition in the gun and the

ammunition in the backpack bore the same manufacturer’s stamp depicting the words

“WIN” and “9mm LUGER.” See Exhibit Volume at 30, 90; Transcript at 802. The

presence of this ammunition in a bag containing Duncan’s social security card and birth

certificate makes it more likely that Duncan possessed the gun and loaded it, both facts

that were relevant to the charges in this case.6 Moreover, after his arrest, Duncan told

Officer Wagner that he believed the weapon was a BB gun and “if he had known that it

was a real gun he would have turned around and faced the officer shooting at them.”

Transcript at 518. The presence of the ammunition among Duncan’s personal effects is

relevant to establish that Duncan knew that the gun was a 9mm and not a BB gun.

       Duncan seems to argue that the universe of relevant evidence was narrowed by his

theory of defense. Specifically, he suggests that the ammunition became irrelevant

because he did not dispute that he possessed the gun or that he knew it was loaded, but

instead only contested whether he voluntarily pulled the trigger. Regardless of Duncan’s

theory of defense, however, the State was required to prove each element of the charged

       6
         In his reply brief, Duncan claims that “there was no clear evidence that the ammunition was
Duncan’s” because the ammunition was found in close proximity not only to documents identifying
Duncan, but also a GED belonging to Ruby Harmon Ehler and a death certificate for Patsy Harmon.
Reply Brief at 4. This argument goes to the weight to be attributed to the ammunition, not its
admissibility.


                                                 7
offenses beyond a reasonable doubt. Duncan has not directed our attention to any

stipulations in the record concerning his possession of the gun or his knowledge that it

was real and loaded. Moreover, even if we consider Duncan to have conceded these

points, it is well settled that the State is entitled to prove its case by evidence of its own

choice, and a defendant may not stipulate his way out of the full evidentiary force of the

case to be presented against him. State v. Lewis, 883 N.E.2d 847 (Ind. Ct. App. 2008).

The trial court did not abuse its discretion in concluding that the ammunition was

relevant.

       Nor can we conclude that the trial court abused its discretion in overruling

Duncan’s objection based on Evid. R. 403.           Again, Duncan asks us to weigh the

probative value of the evidence in light of his theory of defense—i.e., that he did not

dispute his possession of the gun.        This court has explained, however, that “[a]

defendant’s objection pursuant to Rule 403 of the Indiana Rules of Evidence and his offer

to concede a point generally cannot prevail over the government’s choice to offer

evidence showing guilt and all the circumstances surrounding the offense.” Kellett v.

State, 716 N.E.2d 975, 979 (Ind. Ct. App. 1999); see also Perigo v. State, 541 N.E2d 936

(Ind. 1989) (rejecting defendant’s argument that the court should consider an offer of

stipulation in the balancing test of relevancy versus prejudicial effect). Moreover, we do

not believe the ammunition posed anywhere near the risk of unfair prejudice Duncan

claims. Eighty-four 9mm cartridges were found in Vernon’s garage among Duncan’s

personal effects; this does not strike us as an extraordinary amount of ammunition. We

also note that the ammunition was the same caliber and type as that found with the gun

                                              8
used in the commission of these offenses. Thus, the presence of the ammunition did not

suggest ownership of more than one gun. We cannot conclude that this evidence was

likely to inflame the passions of the jury. The trial court did not abuse its considerable

discretion in weighing the probative value of the ammunition against the risk of unfair

prejudice. See Lashbrook v. State, 762 N.E.2d 756, 759 (Ind. 2002) (noting that “[t]rial

courts are given wide latitude in weighing probative value against the danger of unfair

prejudice, and we review that determination for abuse of discretion”).

         With respect to the marijuana and paraphernalia recovered from Vernon’s garage,

we conclude that any error in the admission of this evidence was harmless. “Errors in the

admission or exclusion of evidence are to be disregarded as harmless error unless they

affect the substantial rights of the party.” Corbett v. State, 764 N.E.2d 622, 628 (Ind.

2002).     In determining whether an error in the admission of evidence affected a

defendant’s substantial rights, we “must assess the probable impact of that evidence upon

the jury.”    Id.   “The improper admission of evidence is harmless error when the

conviction is supported by substantial independent evidence of guilt as to satisfy the

reviewing court that there is no substantial likelihood the questioned evidence contributed

to the conviction.” Sisson v. State, 985 N.E.2d 1, 15 (Ind. Ct. App. 2012) (quoting

Martin v. State, 779 N.E.2d 1235, 1242 (Ind. Ct. App. 2002), trans. denied), trans.

denied.

         The complained-of evidence consists of a very small amount of marijuana, cigar

wraps, and two marijuana pipes and a marijuana grinder with marijuana residue on them.

In light of other evidence presented in this case, we are satisfied that there is no

                                            9
substantial likelihood that the challenged evidence contributed to Duncan’s convictions.

The marijuana discovered in the vehicle on the date of Duncan’s offenses, which formed

the basis of Duncan’s conviction for possession of marijuana, was found under the front

passenger seat where Duncan had been sitting. Additionally, when police attempted to

question Duncan, he fled and discharged a firearm in their direction. Officer Wagner,

who transported Duncan to jail, testified that Duncan had glassy eyes, slurred speech, and

appeared to be intoxicated during the booking process. When Officer Wagner asked

Duncan if he had been drinking, Duncan responded in the negative, but said that he had

“smoked a bunch of marijuana.” Transcript at 521. In light of this evidence, which was

more than sufficient to establish Duncan’s constructive possession of the marijuana found

in the car, see, e.g., Holmes v. State, 785 N.E.2d 658 (Ind. Ct. App. 2003) (finding

sufficient evidence of passenger’s constructive possession where marijuana was found

within defendant’s reach and defendant attempted to flee from the police), we think it

highly unlikely that evidence that Duncan possessed paraphernalia and a very small

amount of marijuana at another time and in another place contributed to his conviction

for possessing the marijuana found in the car. We think it even less likely that this

evidence contributed to Duncan’s other convictions, none of which were drug-related.

We therefore find any error in the admission of the paraphernalia and marijuana found at

Vernon’s residence harmless.7


       7
         We note that Duncan argues that the jury reached inconsistent verdicts by acquitting him of
attempted murder and attempted aggravated battery, but convicting him of attempted battery by means of
a deadly weapon and pointing a firearm. According to Duncan, this purported inconsistency is indicative
of a compromise verdict, which Duncan claims is evidence that he was prejudiced by the admission of the
evidence found in Vernon’s garage. Duncan offers no argument or authority in support of his bald

                                                  10
                                                   2.

        Next, Duncan argues that the State presented insufficient evidence to support his

identity deception conviction.          In reviewing a challenge to the sufficiency of the

evidence, we neither reweigh the evidence nor judge the credibility of witnesses.

Atteberry v. State, 911 N.E.2d 601 (Ind. Ct. App. 2009). Instead, we consider only the

evidence supporting the conviction and the reasonable inferences to be drawn therefrom.

Id. If there is substantial evidence of probative value from which a reasonable trier of

fact could have drawn the conclusion that the defendant was guilty of the crime charged

beyond a reasonable doubt, then the judgment will not be disturbed. Baumgartner v.

State, 891 N.E.2d 1131 (Ind. Ct. App. 2008).

        In order to convict Duncan of identity deception as charged, the State was required

to prove that Duncan

        knowingly or intentionally obtain[ed] . . . or use[d] the identifying
        information of another person, including the identifying information of a
        person who is deceased:
              (1) without the other person’s consent; and
              (2) with intent to . . .
                     (C) profess to be another person[.]

I.C. § 35-43-5-3.5 (West, Westlaw 2011).                “Identifying information” is defined in

relevant part as “information that identifies a person, including a person’s . . . name,

address, date of birth, place of employment, employer identification number, mother’s



assertion that the verdicts were, in fact, inconsistent. We decline to develop this argument on Duncan’s
behalf; accordingly, it is waived for lack of cogency. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct.
App. 2005) (noting that “[a] party waives an issue where the party fails to develop a cogent argument or
provide adequate citation to authority and portions of the record”), trans. denied.


                                                   11
maiden name, Social Security number, or any identification number issued by a

governmental entity[.]” Ind. Code Ann. § 35-43-5-1(i) (West, Westlaw current with all

2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical

Session of the 118th General Assembly). In this case, the State charged Duncan with

identity deception for using the identifying information of George Frederick Walker.

Relying on Brown v. State, 868 N.E.2d 464 (Ind. 2007), Duncan argues that the evidence

was insufficient to support his identity deception conviction because there was no

evidence that George Frederick Walker was an actual person. We agree.

       In Brown v. State, the defendant was convicted of three counts of identity

deception after a series of incidents in which he telephoned three adult men and,

pretending to work for a radio station, told them about a phony radio contest in which

they could win prizes if they would drive to a specific address (which turned out to be the

defendant’s residence), enter, remove all their clothing, and don a T-shirt. All of the men

went to the address, and two of them carried out the remaining instructions.            In

concluding that the evidence was insufficient to support the identity deception

convictions, our Supreme Court cited an earlier version of I.C. § 35-43-5-1 that defined

the phrase “identifying information” as set forth above, except that the word “individual”

was used in place of “person.” Brown v. State, 868 N.E.2d at 469. The court first

explained that “[t]he word ‘individual’ is commonly understood to refer to a single

human being, in contrast to ‘person,’ which can mean either an individual human being

or a corporation or other legal entity.” Id. at 469-70 (footnotes omitted). The court went

on to explain that the defendant spoke to three people about the phony contest, and each

                                            12
time identified himself as a representative of a corporation (i.e., a radio station), and at

least once claimed to be “Scott Ross.” Id. at 470. The court dismissed the idea that use

of the name “Scott Ross” was sufficient to support an identity deception conviction,

noting that it “was a fictitious name created by the defendant and did not coincide with

any real person.” Id. The court further concluded that “[w]hile there was evidence that

the defendant used information identifying the corporate radio station without its consent,

there was no evidence that he used the name, address, date of birth, or other identifiers of

any existing human being in perpetrating his hoax.” Id.

       Shortly after our Supreme Court’s decision in Brown v. State, the General

Assembly amended the definition of “identifying information” to replace the word

“individual” with the word “person.” I.C. § 35-43-5-1. It seems likely to us that the

legislature did so in response to Brown, and for the specific purpose of bringing

corporations and other legal entities within the statute’s ambit. See Brown v. State, 868

N.E.2d at 469-70 (explaining that person may refer to “either an individual human being

or a corporation or other legal entity” (footnote omitted)). But we do not believe that this

alters our Supreme Court’s holding that in order to support an identity deception

conviction, the State must establish that the defendant used the identifying information of

a real person, whether natural or juridical. Indeed, the plain language of the identity

deception statute requires the knowing or intentional use of the identifying information

“of another person.” I.C. § 35-43-5-3.5. As our Supreme Court explained in Brown, the

identity deception statute does not criminalize the use of a fictitious name.



                                             13
       The State does not dispute that there was no evidence presented that George

Frederick Walker was a real person. Instead, the State argues that it was not necessary

for the State to present such evidence. Specifically, relying on subsection I.C. § 35-43-5-

3.5(d), which provides that “it is not a defense in a prosecution under [the identity

deception statute] that no person was harmed or defrauded”, the State argues that the

legislature did not intend to limit convictions only to cases in which an individual was

actually harmed. We do not disagree with the State’s assertion, but it does not alter our

conclusion. While the statute clearly does not require actual harm to any person, it does

require the use of an actual person’s identifying information. We also note that this

language was part of the statute at the time our Supreme Court decided Brown, and the

court apparently did not interpret it in the manner urged by the State.

       The State argues further that Duncan’s conduct in giving a false name should be

criminalized because it “ran the risk of impeding the police investigation and the State’s

prosecution” and the “practice of obstructing the course of justice is one which society

has an interest in stemming.” Appellee’s Brief at 21. This may be true, but it is not our

prerogative as an appellate court to identify and criminalize undesirable behavior; such

policy decisions are reserved for the legislative branch of our state government. This

court is bound by the language of the statute as written and our Supreme Court’s

precedent. Moreover, we note that the identity deception statute is found in article 43 of

Indiana’s criminal code, which is titled “Offenses Against Property.” It is therefore

apparent to us that the identity deception statute is directed toward potential fraud and



                                             14
property crimes and not false reporting or obstruction of justice. Whether Duncan’s

conduct might have been chargeable under another statute is not an issue before us.

       In this case, Duncan used the name George Frederick Walker, George Walker, Jr.,

and/or George F. Walker, and gave a birth date of April 6, 1967. The state presented no

evidence to establish that this information “coincide[d] with any real person.” See Brown

v. State, 868 N.E.2d at 470. In other words, the State presented no evidence to support a

conclusion that Duncan knowingly or intentionally used the identifying information of

“another person.” I.C. § 35-43-5-3.5. Accordingly, the State presented insufficient

evidence to support Duncan’s identity deception conviction. We therefore reverse that

portion of the trial court’s judgment and remand with instructions to vacate the identity

deception conviction and the sentence imposed thereon.8

                                                3.

       Finally, Duncan argues that his convictions of attempted battery by means of a

deadly weapon, resisting law enforcement, and pointing a firearm violate principles of

double jeopardy. The double jeopardy clause found in article 1, section 14 of the Indiana

Constitution “was intended to prevent the state from being able to proceed against a

person twice for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32,

49 (Ind. 1999). Two or more offenses are the “same criminal transgression” for the

purposes of the Indiana double jeopardy clause if, “with respect to either the statutory

elements of the challenged crimes or the actual evidence used to convict, the essential

       8
           Because Duncan was ordered to serve his sentence on the identity deception conviction
concurrent with the attempted battery by means of a deadly weapon conviction, his aggregate sentence
will not be affected.


                                                15
elements of one challenged offense also establish the essential elements of another

challenged offense.” Id.

       In this case, Duncan challenges his convictions under the actual-evidence test,

which “prohibits multiple convictions if 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.’” Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002) (quoting Richardson v. State,

717 N.E.2d at 53). Establishing a “‘reasonable possibility’ that the jury used the same

facts to reach two convictions requires substantially more than a logical possibility.” Lee

v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). Instead, the existence of a reasonable

possibility “turns on a practical assessment of whether the jury may have latched on to

exactly the same facts for both convictions.” Id. In applying this test, we seek to

“identify the essential elements of each of the challenged crimes and to evaluate the

evidence from the jury’s perspective, considering where relevant the jury instructions,

argument of counsel, and other factors that may have guided the jury’s determination.”

Id. at 832.

       To prove that Duncan committed attempted battery by means of a deadly weapon,

the State was required to prove that he knowingly or intentionally engaged in conduct

constituting a substantial step toward touching another person in a rude, insolent, or

angry manner by means of a deadly weapon. See I.C. § 35-42-2-1; I.C. § 35-41-5-1. The

charging information was mainly a recitation of the applicable statutory language, with

the added details that Sergeant Rogers was the individual Duncan attempted to touch and

                                            16
that the deadly weapon used was a 9mm Luger. In the final jury instructions, it was

specifically alleged that shooting the firearm at Sergeant Rogers was the substantial step

toward the commission of battery with a deadly weapon. In closing arguments,9 the State

had the following to say concerning the evidence on this charge:

        In order to prove him guilty beyond a reasonable doubt I have to show you,
        one, the defendant,--again we know it’s Chris Duncan on August 15, 2011,
        he had that gun, was fleeing from police officers, two, acting with the
        culpability required to commit the crime of battery by means of a deadly
        weapon, which is defined as knowingly or intentionally. . . . And again, I
        submit to you that this was not an accident. When he pulled that gun out,
        pointed it at law enforcement officers who were chasing him and yelling for
        him to stop, he is doing this on purpose. It was his conscious objective to
        do so. So it’s not an accident in any way. Three, he attempted to touch
        John Rogers. Again, he didn’t touch John Rogers in this case but he tried
        to. When he pulled the trigger on that gun and the bullet expelled from it,
        he was trying to touch him with that bullet. . . . Now, obviously, he had to
        have done this, this in a rude, insolent or angry manner. . . . I think we can
        all agree from, again, our common experience and real world experience
        that shooting a gun at somebody is both rude and insolent. The touching
        was committed by means of a deadly weapon. . . . You will actually be
        given an instruction that just says that a loaded or unleaded firearm can be
        considered a deadly weapon. In this case we know the firearm was loaded.
        . . . I’m going to show you that he did attempt to shoot a 9mm firearm at
        Officer John Rogers. And again, he did shoot this 9mm firearm at John
        Rogers. We know this through the testimony, through the muzzle flash, to
        the location of the weapon. John Rogers said he saw the defendant drop
        that weapon, coming out of his hands as he went down from the TASER
        strike. We know that the defendant shot this 9mm firearm, that you’ve seen
        State’s exhibits there. We know he shot at the defendant.

Transcript of Opening and Closing Argument at 37-40 (emphasis supplied).



        9
           Despite Duncan’s request in his notice of appeal for a transcript of the complete trial and
sentencing record, the opening statements and closing arguments in this case were not originally
transcribed. Accordingly, on October 21, 2014, this court issued an order requiring the court reporter to
prepare and file with the trial court clerk a transcript of the opening and closing statements and instructing
the trial court clerk to transmit the transcript to this court. This court received the transcript on November
7, 2014.


                                                     17
       To prove that Duncan committed pointing a firearm, the State was require to prove

that he knowingly or intentionally pointed a firearm at another person. See I.C. § 35-37-

4-3.   Again, the charging information essentially recited the applicable statutory

language, with the added specificity that the firearm was a 9mm Luger and that Sergeant

Rogers the person at whom the firearm was pointed. The final jury instruction on this

charge largely echoed the charging information. The State made the following argument

in closing concerning the evidence on this charge:

       As he’s running away from the police he pulls this gun out and points it
       over his shoulder. You don’t get here by accident. He didn’t have a spasm
       of some sort. He knew exactly what he was doing when he pulled that gun
       out and pointed it over his shoulder at the police officers that were
       pursuing. Pointed a firearm. He pointed a firearm. How do we know?
       Once again, the muzzle flash. What did John Rogers testify to? The muzzle
       flash came right after. “I felt the concussion from the blast, and I felt
       something whiz past my head.” That gun was pointed. What did the other
       officers say? We saw the muzzle flash. It all went towards where John
       Rogers and Travis Yike were. What did we hear from Shane Strong?
       Muzzle flash in the direction of the police officers. And I even asked him
       “How do you know it wasn’t in another direction?” He said, “Because I
       saw the muzzle flash go back towards the police officers.” And what do we
       know about muzzle flashes? We heard from Melissa Oberg that a muzzle
       flash goes in the direction in which the gun is pointed typically. The barrel
       of the gun, when fired, a bullet is going to come out here followed by gases
       and fire, right out here. It’s going to go in this direction, the direction in
       which the firearm is pointed. So we know that Christopher Duncan pointed
       this firearm and the last thing I need to prove is that he pointed it at Officer
       John Rogers. And, again, we know that because the muzzle flash went
       right towards John Rogers, the debris went towards John Rogers and he felt
       the concussion from the gun. He was that close when Christopher Duncan
       tried to shoot him. The State had proved each of these elements beyond a
       reasonable doubt and he is guilty of pointing a firearm.

Id. at 36-37 (emphasis supplied).




                                             18
       Although it is not necessary to prove that a firearm was actually discharged in

order to support a conviction for pointing a firearm, in this case, the State invited the jury

to rely on evidence that Duncan fired at Officer Rogers in order to find that Duncan had

pointed the firearm. This is the very same evidence on which the State asked the jury to

rely in order to convict Duncan of attempted battery with a deadly weapon. For this

reason, we find that there is a reasonable possibility that the jury relied on the same

evidentiary facts to establish the essential elements of both offenses, in violation of the

actual evidence test. Accordingly, we remand with instructions to vacate Duncan’s class

D felony pointing a firearm conviction and the sentence imposed thereon.10

       With respect to Duncan’s resisting law enforcement conviction, we note that the

charge was based on Duncan’s flight from Officer Rogers, and it was elevated from a

class A misdemeanor to a class D felony based on the allegation that Duncan “drew or

used a deadly weapon” while fleeing. Appellant’s Appendix at 88; see I.C. § 35-44-3-3

(providing that it is a class A misdemeanor to flee from a law enforcement officer after

the officer has, by visible or audible means, identified himself or herself and ordered the

person to stop, and that the crime is elevated to a class D felony if the person draws or

uses a deadly weapon while committing the offense). On appeal, Duncan argues that his

convictions for attempted battery by means of a deadly weapon and resisting law

enforcement do not pass scrutiny under the actual-evidence test because there is a

reasonable possibility that the jury relied on the same evidence—i.e., that Duncan fired a

       10
           Because Duncan was ordered to serve his sentence on the pointing a firearm conviction
concurrent with the attempted battery by means of a deadly weapon conviction, his aggregate sentence
will not be affected.


                                                19
gun at Officer Rogers—to support both the attempted battery by means of a deadly

weapon conviction and the enhancement of the resisting law enforcement charge.

        Even if we assume there is no double jeopardy violation under the actual-evidence

test,11 “[i]n addition to the instances covered by Richardson, ‘we have long adhered to a

series of rules of statutory construction and common law that are often described as

double jeopardy, but are not governed by the constitutional test set forth in Richardson.’”

Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d

826, 830 (Ind. 2002)). One of these rules prohibits “[c]onviction and punishment for an

enhancement of a crime where the enhancement is imposed for the very same behavior or

harm as another crime for which the defendant has been convicted and punished.” Id.

(quoting Richardson v. State, 717 N.E.2d at 56 (Sullivan, J., concurring)). Thus, if we

determine that Duncan was convicted and punished for the enhancement of resisting law

enforcement based on the same behavior or harm that forms the basis of his attempted

battery by means of a deadly weapon conviction, a double jeopardy violation has

occurred. See Zieman v. State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013) (reasoning that “if

we determine that [Zieman] was convicted and punished for the enhancement of resisting

        11
            In Spivey v. State, our Supreme Court explained that “under the Richardson actual evidence
test, 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.” 761 N.E.2d 831, 833 (Ind. 2002). In this case, the resisting conviction
required evidence of additional facts—i.e., Duncan’s flight from Sergeant Rogers after Sergeant Rogers
identified himself and ordered Duncan to stop—which are unrelated to the gun and unnecessary to
support the attempted battery with a deadly weapon conviction. Thus, under a “strict reading” of Spivey,
the convictions may not amount to a violation of the actual-evidence test or constitutional double
jeopardy protections. See Calvert v. State, 930 N.E.2d 633, 642 (Ind. Ct. App. 2010); but see Alexander
v. State, 772 N.E.2d 476, 478 (Ind. Ct. App. 2002) (finding a violation of the Richardson actual-evidence
test “where the evidentiary fact(s) establishing one or more elements of one challenged offense establish
all of the elements of the second challenged offense”), trans. denied.


                                                   20
law enforcement based on the same behavior or harm that forms the basis of his

attempted murder conviction, then double jeopardy principles are violated”). In making

this determination, we will apply the same “reasonable possibility” standard applicable

under the actual-evidence test. Id. at 62.

       The charging information for resisting law enforcement alleged that Duncan fled

from Sergeant Rogers after Sergeant Rogers identified himself and ordered Duncan to

stop, and while doing so, “drew or used a deadly weapon, to-wit:           9mm Luger[.]”

Appellant’s Appendix at 88. The final jury instruction on this charge was similar in

substance. In closing argument, the prosecuting attorney made the following argument

with respect to the evidence relating to the enhancement:

              However, in this case this is a Class D felony because the additional
       element I need to prove to you is that the defendant drew or used a deadly
       weapon while committing this offense. Ladies and gentlemen, the
       testimony was clear. The defendant, Christopher Duncan, after he was
       apprehended was wearing a belt around his mid-section, somewhere
       between his belly button and his nipple line. He was wearing basketball
       shorts. They don’t have any belt loops in there, and you’ll be able to see
       those basketball shorts. There’s no belt loops so what was that belt being
       used for? If was being used to conceal this weapon on his person. . . . The
       testimony that you heard is that everyone saw this weapon discharge over
       the defendant’s left shoulder, the muzzle blast. Everyone is in agreement
       about the muzzle blast. John Rogers talked about the muzzle blast. Travis
       Yike talked about the muzzle blast. Shane Strong talked about the muzzle
       blast. Nate Garrison talked about the muzzle blast. They all saw a muzzle
       blast come over the defendant’s left shoulder. Now, [defense counsel] has
       made a production about the fact that nobody saw the gun coming up. And,
       again, now ask yourselves, do you leave, not to leave your real world
       experiences at the front door. You can see the pictures. It was dark
       outside. It was dark. There was very little street lights. That gun is black.
       Yes, it is going to be hard to see, but all the witnesses agreed that the
       muzzle flash when a trigger is pulled and a bullet is expelled, fire comes
       out of the barrel. All of the officers and Shane Strong, all the witnesses
       agreed, that they saw that coming from the defendant’s shoulder area. We

                                             21
       know that he drew and used that firearm and thus is guilty of resisting law
       enforcement as a Class D felony.

Transcript of Opening and Closing Argument at 34-35 (emphasis supplied).

       Based on this evidence, it is apparent to us that the prosecuting attorney invited the

jury to rely on evidence that Duncan actually fired the gun while fleeing, as opposed to

simply drawing or pointing the gun, to support the enhancement from a class A

misdemeanor to a class D felony. This is the very same act that formed the basis of the

attempted battery by means of a deadly weapon conviction. In light of the prosecuting

attorney’s argument, as well as the lack of specificity in the charging information and

final jury instructions, we conclude that there is a reasonable possibility that the jury

relied on the same evidence to support the attempted battery with a deadly weapon

conviction and the enhancement of the resisting law enforcement conviction, resulting in

a violation of double jeopardy principles.

       We are therefore left to determine the proper remedy for the double jeopardy

violation. This court has explained:

       When two convictions are found to contravene double jeopardy principles,
       a reviewing court may remedy the violation by reducing either conviction
       to a less serious form of the same offense if doing so will eliminate the
       violation. In the alternative, a reviewing court may vacate one of the
       convictions to eliminate a double jeopardy violation. In making that
       determination, we must be mindful of the penal consequences that the trial
       court found appropriate.

Zieman v. State, 990 N.E.2d at 64 (quoting McCann v. State, 854 N.E.2d 905,915 (Ind.

Ct. App. 2006)). In this case, the double jeopardy violation is remedied by vacating the

enhancement of Duncan’s resisting law enforcement conviction based on drawing or


                                             22
using a deadly weapon and reducing that conviction to a class A misdemeanor. We note

that the trial court imposed the maximum three-year sentence on the class D felony

resisting law enforcement conviction and ordered that sentence to be served consecutive

to the maximum eight-year sentence for attempted battery by means of a deadly weapon,

for a total sentence of eleven years on those two counts. The court went on, however, to

state that the aggregate sentence for these offenses was subject to a statutory cap of ten

years.12 Although the trial court did not specify which sentence it was reducing to bring

the sentence imposed within this ten-year cap, we note that it was clearly the trial court’s

intention to impose the maximum sentence available on both the attempted battery with a

deadly weapon and resisting law enforcement conviction. We therefore remand with

instructions to reduce Duncan’s resisting law enforcement conviction to a class A

misdemeanor and impose the maximum one-year sentence on that count, to be served

consecutive to his eight-year sentence for attempted battery by means a deadly weapon.

See Zieman v. State, 990 N.E.2d 53 (remanding with instructions to reduce a class C

felony resisting law enforcement conviction to a class D felony and to impose a specific

sentence). Duncan’s consecutive three-year sentence for class D possession of marijuana

remains undisturbed. Thus, Duncan’s aggregate sentence will be reduced from thirteen

years to twelve years.

       Judgment affirmed in part, reversed in part, and remanded with instructions.

VAIDIK, C.J., and MAY, J., concur.

       12
          The court also imposed a three-year sentence on the possession of marijuana conviction, to be
served consecutive to the sentences for attempted battery by means of a deadly weapon and resisting law
enforcement, resulting in a thirteen-year aggregate sentence.


                                                  23
