MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D), this                       May 30 2019, 8:44 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                     CLERK
                                                                   Indiana Supreme Court
purpose of establishing the defense of res judicata,                  Court of Appeals
                                                                        and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Corey Wharton,                                           May 30, 2019

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         18A-CR-2824
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Leslie Shively, Judge
                                                         Trial Court Cause No. 82D03-1805-
Appellee-Plaintiff.
                                                         F5-3642




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019               Page 1 of 13
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Corey Wharton (Wharton), appeals his conviction for

      Count I, carrying a handgun without a license with a prior felony, a Level 5

      felony, Ind. Code § 35-47-2-1(e); Count II, possession of methamphetamine, a

      Level 5 felony, I.C. § 35-48-4-6.1(b); Count III, operating a motor vehicle after

      forfeiture of license for life, a Level 5 felony, I.C. § 9-30-10-17(a)(1); Count IV,

      resisting law enforcement, a Level 6 felony, I.C. § 35-44.1-3-1(b); and Count V,

      resisting law enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                  ISSUES
[3]   Wharton presents two issues on appeal, which we restate as:


          (1) Whether the trial court’s comments that Wharton had prior felony

              convictions during the first phase of his bifurcated trial constituted a

              fundamental error; and


          (2) Whether Wharton’s convictions for two Counts of resisting law

              enforcement violated the prohibition against Double Jeopardy under the

              Indiana Constitution.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 21, 2018, Officer Kenny Dutschke (Officer Duschke) and Officer

      Justin Jackson (Officer Jackson) of the Evansville Police Department were

      investigating a shooting that had occurred the previous day. The officers were

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 2 of 13
      searching for a maroon four-door vehicle allegedly involved in the shooting

      incident. At the intersection of Monroe and Garvin Streets, the officers saw a

      vehicle matching the description. Wharton was driving the vehicle. The

      officers, who were in a fully marked police vehicle, activated their emergency

      lights and initiated a traffic stop. Wharton did not stop his vehicle, but instead

      slowed down at first and then accelerated. Wharton stopped his vehicle about a

      block away and then fled on foot. Officer Dutschke pursued Wharton on foot

      while Officer Jackson remained behind trying to keep Wharton’s vehicle from

      striking his own, since Wharton had left his vehicle in reverse gear. While

      chasing Wharton, Officer Dutschke repeatedly ordered Wharton to stop, but

      Wharton kept running. Officer Dutschke had to use his taser to stop Wharton

      from running. After securing Wharton, the officers searched Wharton’s person

      and located a white crystalline substance which was later determined to be 2.62

      grams of methamphetamine.


[5]   On May 23, 2018, the State filed an Information, charging Wharton with Count

      I, carrying a handgun without a license with a prior felony, a Level 5 felony;

      Count II, possession of methamphetamine, a Level 5 felony; Count III,

      operating a motor vehicle after forfeiture of license for life, a Level 5 felony;

      Count IV, resisting law enforcement, a Level 6 felony; and Count V, resisting

      law enforcement, a Class A misdemeanor. The State also filed a habitual

      offender enhancement charge, claiming that Wharton had accumulated at least

      three prior unrelated felony convictions.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 3 of 13
[6]   On June 19, 2018, Wharton requested permission to represent himself. After

      being advised, his request was granted. A public defender was appointed as

      stand-by counsel on June 20, 2018. At the start of his jury trial on September

      26, 2018, the trial court conducted a pre-trial hearing. Wharton appeared via

      video from Vanderburgh County Jail and stated that he would not be attending

      his trial. Also, Wharton fired his standby counsel, claiming that she was

      “ineffective.” (Transcript Vol. II, p. 90). After the pretrial hearing concluded,

      the trial court proceeded with Wharton’s bifurcated jury trial. Wharton was

      tried in absentia; however, his standby counsel remained seated at the table. At

      the end of the first phase of Wharton’s trial, the jury found Wharton guilty as

      charged. During the second phase of Wharton’s trial, the jury adjudicated

      Wharton as an habitual offender.


[7]   On October 26, 2018, the trial court conducted a sentencing hearing. After the

      trial court read the cause number to this case, Wharton immediately objected

      and stated, “I’m not here to be adjudicated upon. I’m just here on a special

      appearance today. Not a general appearance.” (Tr. Vol. II, p. 210). The trial

      court warned Wharton not to interrupt when it was talking, or it would conduct

      the hearing in his absence. Wharton again interrupted the trial court and

      stated, “I’m a Moorish national. And this Court is runnin’ a defacto [sic] status

      right now as we speak . . . I ask that you [,] I demand you release the restraints

      and produce the body via habeas corpus of Corey Warton-el.” (Tr. Vol. II, pp.

      210, 212). The trial court gave a further warning, but Wharton continued,

      “Although you sit (indiscernible) King Soloman [sic] you can’t judge me as


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 4 of 13
       Soloman [sic]. I am Soloman [sic].” (Tr. Vol. II, p. 212). At that point, the

       trial court ordered Wharton to be removed from the courtroom. After

       considering the presentencing report and the evidence presented, the trial court

       sentenced Wharton as follows: Six years on Count I, enhanced by six years due

       to Wharton’s status as an habitual offender; two and one-half years on Counts

       II and IV; six years on Count II; and one year on Count V. Wharton’s

       sentences were to run concurrently, for an aggregate sentence of twelve years.


[8]    Wharton now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                          I. Trial Court’s Comments

[9]    Wharton argues error occurred when the trial court stated during the voir dire

       process that he had a prior felony conviction. Wharton acknowledges in his

       brief that he did not object at trial to any of the references he now alleges to be

       error because he was absent at his trial. Generally, the failure to object at trial

       results in a waiver of the issue on appeal. Bayes v. State, 779 N.E.2d 77, 81 (Ind.

       Ct. App. 2002), trans. denied. “A contemporaneous objection affords the trial

       court the opportunity to make a final ruling on the matter in the context in

       which the evidence is introduced.” Id.


[10]   Wharton nevertheless seeks to escape waiver by arguing that the references

       constitute fundamental error. The fundamental error exception to the waiver

       rule regarding contemporaneous objections is an extremely narrow one. Id.

       The doctrine is “available only when the record reveals a clearly blatant

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 5 of 13
       violation of basic and elementary principles, where the harm or potential for

       harm cannot be denied, and which violation is so prejudicial to the rights of the

       defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939,

       942 (Ind. 2008).


[11]   As a person accused of a criminal offense, Wharton had a constitutional due

       process right to a fair trial. See U.S. CONST. Amends. V, XIV; Ind. Const. Art.

       1, §§ 12, 13. Due process constitutionally clothed Wharton with a presumption

       of innocence. See Estelle v. Williams, 425 U.S. 501, 503 (1976). Further, we note

       that one purpose of bifurcation is to keep prior offenses away from the jury

       during the phase of determining guilt for the crimes charged. Russell v. State,

       997 N.E.2d 351, 354 (Ind. 2013). Evidence of prior convictions is generally

       inadmissible because such evidence “‘has no tendency to establish the guilt or

       innocence of the accused.’” Spearman v. State, 744 N.E.2d 545, 547 (Ind. Ct.

       App. 2001) (quoting Lawrence v. State, 259 Ind. 306, 310, 286 N.E.2d 830, 832

       (1972)).


[12]   Wharton argues that because the jury was made aware that he had a prior

       felony during voir dire, he was denied the presumption of innocence and due

       process of law. He continues that while “the trial court did bifurcate the

       proceedings and tried the habitual offender [] enhancement[] in a second phase

       of the trial[,] [d]espite the bifurcation, the trial court told the jury the defendant

       had a prior felony conviction on three separate occasions during the voir dire

       process.” (Appellant’s Br. p. 13).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 6 of 13
[13]   Turning to the record, at the beginning of the voir dire process and while

       addressing the jury pool, the trial court stated,


               As I said, this is a criminal case and the charges that are pending
               against Mr. Wharton that you will be considering today are
               carrying a handgun [] with a prior [f]elony conviction, possession
               of methamphetamine, operating a motor vehicle after forfeiture
               of license, resisting law enforcement, and related charges thereto.
               Now because this is in fact a criminal trial [Wharton] is
               presumed to be innocent of the charges that have been brought
               against him. The [s]tate of Indiana has the burden of overcoming
               this presumption of innocence and proving . . . [Wharton’s] guilt
               of all of these crimes beyond a reasonable doubt. I will discuss
               these contents with you at a greater length later in these
               proceedings.


       (Tr. Vol. II, p. 96). When the trial court asked a prospective juror if there was

       “anything about the charges in [Wharton’s] case that would cause” her “to be

       unable to listen to the evidence in this case and render a verdict solely” based

       on the evidence, the following exchange occurred,


               [Prospective Juror]: I do have a problem if the particular person
               is a repeat offender. I don’t see the burden of proof should be on
               the State to do that. But that’s my own opinion. Because the
               fact is, is if he basically has already [] had a record, and he’s
               repeating these (indiscernible).


               [Trial Court]: Well you really don’t know that yet. The way our
               system constitutionally works, even if using your hypothetical,
               someone has been charged and found guilty sometime back of a
               crime, we’re not here about that crime. We’re here about new
               charges. And the way our system works, the State still has to
               prove all the elements of those new charges. We don’t simply

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 7 of 13
        operate and say this person was convicted before therefore they
        must be guilty. We don’t work that way. We ignore all that and
        start fresh. Given that explanation can you do that?


        [Prospective Juror]: Sure . . . .


(Tr. Vol. II, pp. 99-100). Then during the second round of the voir dire process,

the trial court had the following dialogue with a prospective juror:


        [Trial Court]: The nature of the charges in this case, which I
        went through generally, possession of meth, possession of a
        handgun by a convicted felon, and the moving violations,
        resisting arrest, etcetera. Anything about those charges that
        bother you that would make it difficult for you to view the
        evidence presented objectively?


        [Prospective Juror]: No.


(Tr. Vol. II, pp. 103-04). Lastly, while questioning another prospective juror,

the following exchange occurred


        [Trial Court]: Given the nature of some of the charges in this
        case, possession of meth, possession of a firearm by convicted
        felon, resisting law enforcement, anything about those charges
        that bother you that would cause you to be less than objective in
        considering the evidence?




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 8 of 13
       (Tr. Vol. II, pp. 105-06). 1


[14]   Here, the trial court simply recited the charges against Wharton and nothing

       more, and we note that the underlying facts relating to Wharton’s prior

       conviction which elevated the possession of a handgun without a license to a

       Level 5 felony, were not made known to the potential jurors. Moreover, the

       trial court’s multiple references that Wharton had a prior felony were

       accompanied with statements that sufficiently minimized any prejudicial effect.

       The trial court attempted to explain to the prospective juror who had a concern

       regarding Wharton’s prior felony conviction, indicating that the prior

       conviction could not determine if Wharton was guilty of the instant offenses;

       rather the burden was on the State to prove all the offenses beyond a reasonable

       doubt.


[15]   The trial court’s reading of the possession of handgun without a license charge

       with a prior felony, as enhanced, was information related to the charge, but the

       enhancement still had to be proven, and was proven during the second phase of

       Wharton’s bifurcated trial. Thus, the trial court’s comments during voir dire did




       1
        The prospective juror claimed that she did not agree with the “methamphetamine part” because she had an
       “ex-husband” who was a user. (Tr. Vol. II, p. 106). After the trial court clarified that it was not seeking to
       delve into the issues of her former marriage and was only seeking her objectivity in considering the evidence
       presented, it proceeded in asking her further questions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019                      Page 9 of 13
       not give rise to an undeniable or substantial potential for harm, did not

       constitute a clearly blatant violation of elementary principles of due process,

       and did not render a fair trial impossible. In light of these isolated references to

       Wharton’s status based on past convictions during voir dire, and our Supreme

       Court’s narrow definition of fundamental error, we hold that the prejudice did

       not constitute fundamental error. See Bayes, 779 N.E.2d at 81 (where we

       determined that the trial court’s and prosecution’s repeated reference to the

       defendant’s status as a serious violent felon during voir dire did not constitute

       fundamental error.)


                                              II. Double Jeopardy

[16]   Wharton claims that his two convictions for resisting law enforcement, one as a

       Level 6 felony and one as a Class A misdemeanor, violate the Double Jeopardy

       Clause under the Indiana Constitution.


[17]   Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall

       be put in jeopardy twice for the same offense.” The Indiana Supreme Court has

       determined that two or more offenses constitute the same offense for double

       jeopardy purposes “if, with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to obtain convictions, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct.

       App. 2013) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Whether

       convictions violate double jeopardy is a question of law which we review de

       novo.” Id. Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 10 of 13
[18]   In support of his double jeopardy claim, Wharton relies on Paquette v. State, 101

       N.E.3d 234, 237 (Ind. 2018). In Paquette, our Supreme Court found that only

       one Level 3 felony conviction is authorized under Indiana Code section 35-

       44.1-3-1 when a defendant engages in a single act of resisting law enforcement

       while operating a vehicle that causes multiple deaths.


[19]   The defendant in Paquette used a vehicle to flee from law enforcement, and the

       pursuit ended in a crash involving innocent motorists. The defendant faced

       multiple Level 3 felony resisting law enforcement charges stemming from a

       single act of resisting. We find that any double jeopardy concerns may not be

       fully resolved by Paquette. Rather, we believe that the issue presented here is

       whether Wharton’s resisting law enforcement offenses violate the continuous

       crime doctrine, which reflects another category of Indiana’s prohibition against

       double jeopardy.


[20]   The continuous crime doctrine defines those instances where a defendant’s

       conduct amounts only to a single chargeable crime and prevents the State from

       charging a defendant twice for the same continuous offense. Koch v. State, 952

       N.E.2d 359, 373 (Ind. Ct. App. 2011), trans. denied. The doctrine “essentially

       provides that actions that are sufficient in themselves to constitute separate

       criminal offenses may be so compressed in terms of time, place, singleness of

       purpose, and continuity of action as to constitute a single transaction.” Id.

       (citation omitted). The doctrine applies in those situations where a defendant is

       charged multiple times with the same offense. Id. The continuous crime

       doctrine does not seek to reconcile the double jeopardy implications of two

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 11 of 13
       distinct chargeable crimes; rather, it defines those instances where a defendant’s

       conduct amounts only to a single chargeable crime. Hines v. State, 30 N.E.3d

       1216, 1219 (Ind. 2015). The continuous crime doctrine requires a fact-sensitive

       analysis. Chavez v. State, 988 N.E.2d 1226, 1229 (Ind. Ct. App. 2013), trans.

       denied.


[21]   A person commits the offense of Class A misdemeanor resisting law

       enforcement by fleeing from a law enforcement officer after the officer has, by

       visible or audible means, identified himself and ordered the person to stop. I.C.

       § 35-44.1-3-1(a)(3). The offense is a Level 6 felony if the person “uses a vehicle

       to commit the offense.” I.C. § 35-44.1-3-1(b)(1)(A).


[22]   This Court has held in several cases that a defendant cannot be convicted of

       both misdemeanor and felony resisting law enforcement when he or she flees in

       a vehicle, gets out, and immediately flees on foot. See, e.g., Lewis v. State, 43

       N.E.3d 689, 691 (Ind. Ct. App. 2015); Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct.

       App. 2004). In both of these cases, the defendant fled from the police in a

       vehicle, got out of the vehicle, and continued to flee from the police on foot.

       He was charged and convicted of both misdemeanor and felony resisting law

       enforcement, and this Court vacated the misdemeanor resisting convictions.

       Lewis, 43 N.E.3d at 691; Nevel, 818 N.E.2d at 5.


[23]   The instant case is in line with the above cited cases. Wharton’s actions of

       fleeing by vehicle and then on foot constitute one continuous act of resisting

       law enforcement, and we hold that convictions on both Counts cannot stand.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 12 of 13
       See Lewis, 43 N.E.3d at 691; Nevel, 818 N.E.2d at 5. Our holdings are also

       consistent with our Supreme Court’s decision in Hines, 30 N.E.3d at 1220,

       where the court clarified that the continuous crime doctrine applies “only where

       a defendant has been charged multiple times with the same ‘continuous’

       offense.” Our Supreme Court further explained that “[t]he Legislature, not this

       Court, defines when a criminal offense is continuous, e.g. not terminated by a

       single act or fact but subsisting for a definite period and covering successive,

       similar occurrences.” Id. at 1219. We remand this case to the trial court with

       instructions to vacate Wharton’s conviction for Class A misdemeanor resisting

       law enforcement and to amend the abstract of judgment, chronological case

       summary, and any other relevant court documents to reflect the vacated Class

       A misdemeanor conviction.


                                             CONCLUSION
[24]   Based on the foregoing, we conclude that the trial court’s repeated reference to

       the fact that Wharton had a prior felony conviction during voir dire did not

       constitute fundamental error. However, we remand this case to the trial court

       with instructions to vacate Wharton’s conviction for Class A misdemeanor

       resisting law enforcement.


[25]   Affirmed in part, reversed in part, and remanded with instructions.


[26]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019   Page 13 of 13
