 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                  FILED
                                                               Jan 31 2013, 9:14 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                             CLERK
                                                                     of the supreme court,

 collateral estoppel, or the law of the case.                        court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MARK A. BATES                                        GREGORY F. ZOELLER
Appellate Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                     MICHAEL GENE WORDEN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

BRIAN BUFFINGTON,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 45A05-1206-CR-297
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                            The Honorable Salvador Vasquez, Judge
                                Cause No. 45G01-1104-FA-22


                                          January 31, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        A jury found Brian Buffington guilty of class A felony Robbery, 1 class B felony

Aggravated Battery, 2 and two counts of class C felony Battery. 3 In order to avoid double

jeopardy violations, the trial court entered judgment of conviction on the crime of class A

felony robbery only. 4 On appeal, Buffington presents the following restated issue for our

review: Was the trial court required to remedy the double jeopardy issue by, instead, entering

judgment on the aggravated battery count and either not entering judgment on the robbery

count or reducing it to a class B felony?

        We affirm.

        On April 21, 2011, Joseph Koopman returned to his trailer home with cash after being

paid at work. Buffington, Koopman’s friend and roommate, arrived home around 6:30 p.m.

that evening and, having also been paid that day, handed Koopman $180 in cash. $160 was

for rent he owed Koopman, and he asked Koopman to hold the other $20 for safekeeping, as

Buffington had a habit of spending his money on drugs.

        Buffington left later that evening, and Koopman stayed home watching television.

Buffington came back several hours later after using cocaine at a friend’s house and asked

Koopman for $40. Koopman gave him the $20 he had been holding for Buffington but said




1
   Ind. Code Ann. § 35-42-5-1 (West, Westlaw through 2012 2nd Reg. Sess.).
2
   I.C. § 35-42-2-1.5 (West, Westlaw through 2012 2nd Reg. Sess.).
3
   I.C. § 35-42-2-1 (West, Westlaw through 2012 2nd Reg. Sess.).
4
  Buffington contends that the trial court improperly entered convictions on the class C felony battery counts.
At the sentencing hearing, the trial court expressly indicated that judgment would not be entered on these
counts. The written sentencing order states that judgment was entered for the robbery count. With respect to
the class C felony battery counts, the order indicates that they merged with the robbery count. Contrary to
Buffington’s assertion on appeal, this did not constitute error. See Kilpatrick v. State, 746 N.E.2d 52 (Ind.
2001).

                                                      2
that the rest of the money was needed for rent and that he could not lend him any money.

Koopman left with the $20 and went to purchase and consume more cocaine.

       At some point, Koopman fell asleep on the couch and then awoke upon Buffington’s

return in the early morning hours. Buffington requested $40 and kept insisting, claiming that

he would pay Koopman back later in the week. Koopman eventually became frustrated and

told Buffington to leave him alone and go to his room to “sleep it off”. Transcript at 54.

Buffington went to his room, and Koopman then went back to sleep on the couch.

       Shortly thereafter, Koopman awoke to someone on top of him, beating him on the

head. He yelled for Buffington’s help but then realized Buffington was his attacker.

Buffington brutally beat Koopman with a metal flashlight about the head and face, while

Koopman tried to block the blows with his arms. After enduring about 50 or 60 strikes,

Koopman finally “went limp” and pretended like he was dead in order to stop the beating.

Id. at 58. Buffington then reached in Koopman’s pockets and took Koopman’s wallet and

cell phone. Buffington removed all the cash and then discarded the wallet. After Buffington

left the trailer, Koopman went unconscious.

       Upon receiving a report from neighbors many hours later, police found Koopman

inside his trailer, badly beaten, covered in blood, and in shock. Koopman suffered fractures

to his skull, broken fingers, knocked-out teeth, and injuries to his eye and has undergone a

number of surgeries as a result of the attack.

       On April 26, 2011, the State charged Buffington with class A felony attempted

murder, class A felony robbery, class B felony aggravated battery, and two counts of class C


                                                 3
felony battery. Buffington’s jury trial commenced on March 19, 2012. Buffington testified

in his own defense, admitting to the brutal beating of his roommate but denying that he

intended to kill him and claiming that he only took his own money, cash which Koopman

was allegedly holding for Buffington. Thus, Buffington’s defense strategy was to admit that

he committed aggravated battery but argue to the jury that he should not be convicted of

attempted murder or robbery. Ultimately, the jury found Buffington not guilty of attempted

murder but guilty of the four remaining counts.

         While the parties agreed that convictions could not be entered on all four counts, they

disagreed on how to remedy the double jeopardy concerns. Buffington argued that the trial

court should reduce the robbery conviction to a class B felony and enter convictions for this

reduced count and the aggravated battery count, which would result in two class B felony

convictions. The State, on the other hand, argued that the court should preserve the highest

offense and, thus, enter conviction on the class A felony robbery count only. The trial court

agreed with the State. At the conclusion of the sentencing hearing, the trial court sentenced

Buffington to the advisory sentence of thirty years for class A felony robbery. Buffington

now appeals.

         We begin with Buffington’s assertion, in the peculiar context of his double jeopardy

argument, that one of the final instructions was erroneous.5 The State correctly observes that


5
    The challenged instruction, Instruction No. 7, follows:
                                                    Count II
                  The Defendant is charged with Robbery as a Class A felony. Robbery, Class B
         felony, and Robbery, Class C felony, are included in Robbery, Class A felony. If the State
         proves the Defendant guilty of Robbery as a Class A felony, you need not consider the
         included crime(s). However, if the State fails to prove the Defendant committed Robbery as a

                                                      4
Buffington has waived any challenge to the instruction by failing to object to it below. See

Baker v. State, 948 N.E.2d 1169 (Ind. 2011). Moreover, we note that he has not adequately

developed his argument regarding the challenged jury instruction. Buffington has waived

this issue for review.

        Buffington directs us, as he did the trial court, to Mendenhall v. State, 963 N.E.2d 553

(Ind. Ct. App. 2012), trans. denied, for his argument that the trial court could not retain the

class A felony count. His logic is flawed. The defendant in Mendenhall was convicted of

class A felony attempted murder, class A felony robbery, class B felony aggravated battery,

class B felony criminal confinement, and class A misdemeanor resisting law enforcement.

He received sentences of thirty years for each of the class A felonies, ten years for each of the

class B felonies, and one year for the misdemeanor. The trial court ordered the sentences for

attempted murder and aggravated battery to be served consecutively, with all other sentences

(including the sentence for robbery) to run concurrently.

        Among other things on appeal, Mendenhall challenged his convictions for robbery and

aggravated battery as violating the state prohibition against double jeopardy. This court

found a double jeopardy violation because the same injury was used to support the robbery

enhancement and the aggravated battery. We then observed:

        When two convictions violate double jeopardy principles, we may remedy the
        violation by reducing either conviction to a less serious form of the same
        offense if doing so will eliminate the violation. Reducing the robbery
        conviction to a class B felony would still result in a double jeopardy violation

       Class A felony, you may consider whether the Defendant committed Robbery, Class B felony,
       and/or Robbery, Class C felony, which the Court will define for you.
                You must not find the Defendant guilty of more than one crime for Count II.
Appendix at 70.

                                                   5
        in light of Mendenhall’s Class B felony criminal confinement conviction. We
        therefore remand with instructions to reduce Mendenhall’s robbery conviction
        to a Class C felony.

Id. at 572-73 (citations omitted and emphasis supplied).

        Contrary to Buffington’s apparent belief, Mendenhall does not hold that the only

proper remedy in this case (that is, when dealing with convictions for class A felony robbery

and class B felony aggravated battery) is to reduce the robbery conviction. Rather, that is just

one remedy, one that made sense in Mendenhall given that the defendant’s sentence for

robbery had been ordered to be served concurrent with his attempted murder sentence. Thus,

a reduction in the robbery sentence would not alter the aggregate sentence. See Moala v.

State, 969 N.E.2d 1061 (Ind. Ct. App. 2012) (appropriate remedy determined by an

examination of the effect on penal consequences).

        In the instant case, the jury acquitted Buffington of attempted murder. The highest

level offense for which the trial court could have entered a conviction, therefore, was for

class A felony robbery. Downgrading this offense would result in a substantial reduction in

Buffington’s sentencing exposure. Of course, this would be preferable to Buffington, but it

would not fairly represent the gravity of the crimes for which the jury found him guilty. The

trial court did not err in remedying the potential double jeopardy violation by entering

judgment of conviction on the class A felony robbery only. 6


6
  To the extent that some of the trial court’s reasoning may have been flawed, as suggested by Buffington, its
result was nevertheless correct. To be sure, had the trial court entered convictions for both class A felony
robbery and class B felony aggravated battery, we would have vacated the conviction for aggravated battery on
appeal rather than reduce the robbery. See, e.g., Jenkins v. State, 726 N.E.2d 268, 271 (Ind. 2000) (vacating
robbery conviction “because it has less severe penal consequences” and leaving standing felony murder
conviction).

                                                      6
     Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.




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