ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                        Gregory F. Zoeller
O’Connor & Auersch                                         Attorney General of Indiana
Indianapolis, Indiana
                                                           Ian McLean
Ruth Ann Johnson                                           Deputy Attorney General
Marion County Public Defender Agency
Indianapolis, Indiana                                      Stephen R. Creason
                                                           Deputy Attorney General

                                                           Andrew A. Kobe
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


______________________________________________________________________________

                                             In the
                              Indiana Supreme Court                           Jul 30 2015, 9:01 am

                             _________________________________

                                       No. 49S05-1410-CR-654

GARY SISTRUNK,
                                                           Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                       Appellee (Plaintiff below).
                             _________________________________

                 Appeal from the Marion Superior Court, Criminal Division Room 5
                                  No. 49G05-1202-FB-010112
                             The Honorable Grant W. Hawkins, Judge
                    The Honorable Christina Klineman, Master Commissioner
                             _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-1211-CR-567
                           _________________________________


                                           July 30, 2015


Rucker, Justice.
           Gary Sistrunk challenges his convictions for robbery and criminal confinement as class B
felonies contending, among other things, they violate Indiana’s constitutional ban on double
jeopardy. We affirm the judgment of the trial court.


                                    Facts and Procedural History


           On February 5, 2012, Gary Sistrunk entered a gas station in Marion County and
purchased a cigar. As the attendant was returning Sistrunk’s change, Sistrunk produced a
handgun, pointed it at the attendant and demanded money from the cash register. The attendant
complied. Sistrunk then demanded money from the safe. The attendant responded that she was
unable to open the safe. Instead she handed Sistrunk two safety-deposit bags containing cash.
Sistrunk then “told [the attendant] to sit on the ground and [she] sat on the ground, he stood there
for about a minute and then [] walked out the door,” and she “waited for about [two] minutes to
call the police.” Tr. at 26.


           A Crime Stoppers’ tip led police to focus on Sistrunk as a person of interest. Thereafter
the attendant positively identified Sistrunk from a photo array as the man who robbed the gas
station.      On February 14, 2012, the State charged Sistrunk with robbery and criminal
confinement, both as class B felonies. Thereafter Sistrunk, represented by private counsel, filed
a motion asserting his indigence and requesting public funds to pay the expenses of an expert
witness on the subject of eyewitness identification. After conducting a hearing the trial court
agreed Sistrunk was indigent for purposes of the motion but denied the request for public funds.


           Sistrunk waived his right to trial by jury. A bench trial was conducted on October 4,
2012, at the conclusion of which the trial court found Sistrunk guilty as charged. Thereafter the
trial court sentenced Sistrunk to two concurrent six-year terms of imprisonment.           Sistrunk
appealed contending the two convictions violated Indiana’s prohibition on double jeopardy
because the force used to support the robbery conviction was coextensive with the force used to
support the confinement conviction. Sistrunk also contended the trial court abused its discretion
in denying his request for public funds to retain the services of an expert witness. The Court of
Appeals unanimously affirmed the trial court’s decision on this latter point. However in a



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divided opinion the court determined Sistrunk’s convictions for robbery and criminal
confinement did not violate Indiana’s constitutional ban on double jeopardy, but it sua sponte
determined that the same evidence, namely, Sistrunk’s act of being armed with a deadly weapon,
was improperly used to enhance both of his convictions from class C to class B felonies. See
Sistrunk v. State, 11 N.E.3d 925 (Ind. Ct. App. 2014), vacated. We disagree with our Court of
Appeals colleagues on this point, and we previously granted transfer to explore the issue. In all
other respects, we summarily affirm the opinion of the Court of Appeals. See Ind. App. R.
58(A)(2).


                                           Discussion


       Article 1, Section 14 of the Indiana Constitution provides: “No person shall be put in
jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), this
Court reviewed the history of the Indiana Constitution’s Double Jeopardy Clause to determine
and articulate a single comprehensive rule synthesizing and superseding previous formulations
and exceptions. In so doing we explained that two or more offenses are the “same offense” in
violation 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 elements of one
challenged offense also establish the essential elements of another challenged offense.” Id. at 49.
However, in addition to the protections afforded by the Indiana Double Jeopardy Clause, this
Court has “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.” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Among these is the rule that
precludes a “[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.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (emphasis
added) (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)).


       In the case before us, the Court of Appeals acknowledged that “[t]he repeated use of a
weapon to commit multiple separate crimes is not ‘the very same behavior’ precluding its use to
separately enhance the resulting convictions.” Sistrunk, 11 N.E.3d at 931 (quoting Miller v.



                                                3
State, 790 N.E.2d 437, 439 (Ind. 2003)). However, relying on the concurring opinion in Miller
the court concluded that unlike the defendant in that case, here Sistrunk did not repeatedly use
his handgun or use it more than once in committing the offenses for which he was convicted.
Thus, his use of the handgun was in fact the very same behavior precluding its use to enhance
both of his convictions. Sistrunk, 11 N.E.3d at 932.


       We first observe that it is not apparent the majority in Miller endorsed the view expressed
by the concurrence. Indeed the Miller Court expressly declared that “the use of a single deadly
weapon during the commission of separate offenses may enhance the level of each offense.” 790
N.E.2d at 439 (quotation omitted). More importantly, this rule predates Richardson by several
years and thus cannot be said to be included in the “very same behavior” category of examples
precluding enhancements. See, e.g., Bivins v. State, 642 N.E.2d 928, 945 (Ind. 1994) (rejecting
assertion that defendant’s convictions for robbery and confinement cannot both be aggravated to
class B felonies by the same “use of a deadly weapon” aggravator); Carrington v. State, 678
N.E.2d 1143, 1147-48 (Ind. Ct. App. 1997) (no double jeopardy violation where defendant’s
rape and robbery convictions were enhanced because defendant was armed with a knife during
commission of both crimes), trans. denied; Peterson v. State, 650 N.E.2d 339, 340 (Ind. Ct. App.
1995) (no double jeopardy violation where defendant’s robbery and rape convictions were
enhanced based upon his possession of a single deadly weapon during the commission of the
offenses); Brown v. State, 633 N.E.2d 322, 324 (Ind. Ct. App. 1994) (no double jeopardy
violation where defendant’s robbery and confinement convictions were enhanced because he was
armed with a knife during commission of the crimes), trans. denied. And post-Richardson this
Court decided Gates v. State, 759 N.E.2d 631 (Ind. 2001). In that case the defendant threatened
his victim with a knife during the commission of rape, criminal deviate conduct, and criminal
confinement, all of which had been enhanced to class B felony offenses because the defendant
had been armed with a knife while committing the offenses.            Affirming the defendant’s
conviction we observed in a footnote: “It is well established in Indiana that the use of a single
deadly weapon during the commission of separate offenses may enhance the level of each
offense.” Id. at 633 n.2.




                                                4
       In sum, our jurisprudence teaches that committing two or more separate offenses each
while armed with a deadly weapon—even the same weapon—is not within the category of rules
precluding the enhancement of each offense based on “the very same behavior.”         Stated
somewhat differently, our recognition in Richardson of the common law rule establishing that
enhancements cannot be imposed for the very same behavior could not have included use of a
single deadly weapon during the commission of separate offenses. And this is so because no
such common law rule existed. Instead the opposite was true.


                                          Conclusion


       We affirm the judgment of the trial court.


Rush, C.J., and Dickson, David and Massa, JJ., concur.




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