MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                            May 23 2019, 10:53 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Alan K. Wilson                                          Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana

                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Lionel Ray Mackey, Jr.,                                 May 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2624
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        18C03-1701-F1-1



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019                   Page 1 of 21
                                            Statement of the Case
[1]   Lionel Ray Mackey, Jr., appeals his convictions of attempted murder, a Level 1
                  1                                                                       2
      felony; possession of a destructive device or explosive, a Level 2 felony;
                                                  3                                   4
      intimidation, a Level 5 felony; criminal recklessness, a Level 6 felony; and
                                                                          5
      conspiracy to commit perjury, a Level 6 felony. He also appeals a portion of

      the 101-year aggregate sentence imposed by the trial court. We affirm in part,

      reverse in part, and remand with instructions.


                                                          Issues
[2]   Mackey raises three issues, which we restate as:


                 I.       Whether the trial court erred by admitting into evidence
                          Mackey’s incriminating statements to a police officer
                          during post-arrest questioning.


                 II.      Whether Mackey’s convictions for attempted murder and
                          possession of a destructive device or explosive violate his
                          state constitutional protections against double jeopardy.




      1
          Ind. Code §§ 35-42-1-1 (2014) (murder), 35-41-5-1 (2014) (attempt).
      2
          Ind. Code § 35-47.5-5-8 (2014).
      3
          Ind. Code § 35-45-2-1 (2014).
      4
          Ind. Code § 35-42-2-2 (2014).
      5
          Ind. Code §§ 35-44.1-2-1 (2014) (perjury), 35-41-5-2 (2014) (conspiracy).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019      Page 2 of 21
              III.    Whether the aggregate sentence for some of his
                      convictions exceeds the statutory maximum for a single
                      episode of criminal conduct.


      In addition, we raise an additional issue on our own motion: whether

      Mackey’s convictions for attempted murder and intimidation violate his

      state constitutional protections against double jeopardy.



                               Facts and Procedural History
                                                   6
[3]   Lionel Mackey and Margie Harvey were in a relationship from late July 2016

      until November 5, 2016, when Harvey ended their relationship due to Mackey’s

      controlling manner. Mackey reacted poorly to the breakup and continued to

      contact Harvey despite her requests not to do so. On November 10, 2016, she

      obtained a protective order against him. Next, Mackey made threatening

      phone calls to Harvey, including a call in late November 2016 in which he said

      he would blow her up. In another recorded call from November 2016, he said

      she might get her throat slashed or be shot in the back while she was working.


[4]   Tamara Olis began a romantic relationship with Mackey in November 2016

      and moved in with him. On the night of December 28, 2016, Olis saw Mackey

      working on a wooden box at their residence. She also saw him working with




      6
       Margie Harvey was formerly known as Margie Wolford. We refer to her using the name she provided at
      Mackey’s second trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019              Page 3 of 21
      wires, batteries, and a light. Olis went to sleep, and when she awoke to check

      her blood sugar, Mackey was gone.


[5]   In the early morning hours of December 29, 2016, Harvey was at work, driving

      a taxi. She stopped by her house shortly after 2 a.m. Harvey shared the house

      with her seven-year-old daughter, her boyfriend, and her boyfriend’s nine-year-

      old son. Her boyfriend and his son were home at the time, sleeping.


[6]   Upon arriving, Harvey saw a white trash bag on her porch, placed near her

      trash can. She looked in the bag and saw a sealed while cardboard box bearing

      United States Postal Service logos. The box had Harvey’s address and was

      purportedly from her friend Daysha Sneed.


[7]   Harvey did not enter her home because she had accidentally left her house key

      at the taxi company’s office. She instead put the box in her taxicab and went

      back to work. At around 5 a.m., Harvey asked Sneed via text message if she

      had left a box on her porch. Sneed denied sending her anything, stating that

      that she was in the hospital. She suggested to Harvey that Mackey “sent

      something to ur [sic] house and put [it] from me.” Tr. Ex. Vol. 2, State’s Ex. 6.


[8]   Later, Harvey stopped at the taxi company’s office and opened the box. She

      found a smaller wooden box, surrounded by paper. Harvey opened the lid of

      the wooden box slightly and saw what appeared to be wires or batteries. She

      showed the box to the taxi company’s dispatcher, who placed it on the ground

      outside the office and told her to return to work. Harvey believed the

      dispatcher would call 911, but he did not.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 4 of 21
[9]    Harvey saw the box again when she returned to the office. She called 911 and

       reported that she had received a bomb. Harvey told the 911 dispatcher that she

       believed Mackey had delivered the package and further explained she had an

       active protective order against him.


[10]   Officer Jonathon Thornton of the Muncie Police Department (“MPD”) arrived

       at the scene at 7:30 a.m., followed by other officers. Harvey told officers she

       suspected Mackey had placed the package at her home. Officer Thornton

       opened the box slightly and saw PVC pipes, wiring, and batteries. He notified a

       supervisor. Next, the officers decided to evacuate all structures within a radius

       of several blocks and contacted the Delaware County Sheriff’s Office’s bomb

       disposal squad (“the squad”).


[11]   The squad arrived and used a robot equipped with a camera to approach the

       wooden box, open it remotely, and examine the contents from a safe distance.

       The device appeared to be a potentially functional pipe bomb, with batteries,

       circuitry, and two sealed PVC pipes. It did not seem to be a hoax device.


[12]   The bomb appeared to have been constructed so that it would be triggered by a

       person opening the box’s lid. The resulting blast could have caused death or

       serious bodily injury to that person. Captain George Sheridan of the Delaware

       County Sheriff’s Department, who was the squad’s leader, theorized that low

       overnight temperatures may have damaged the bomb and prevented it from

       functioning. The squad rendered the bomb safe through a controlled

       detonation process and collected its components as evidence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 5 of 21
[13]   Later that morning, officers with the MPD obtained a search warrant for

       Mackey’s house. Several officers arrived at the house and took him into

       custody while the squad searched the house. They first sent a camera-equipped

       robot inside and, when the officers did not see anything apparently dangerous,

       then searched the house in person.


[14]   Officers searched Mackey’s trash can and found black duct tape and wires that

       were consistent with materials used in the bomb. Inside the house, they found

       an epoxy mix that appeared to be consistent with epoxy that was used in the

       bomb. The officers also found eyelets that resembled the eyelets that were

       found on the bomb. In addition, they saw a table saw that had shavings that

       appeared to have come from a PVC pipe, and a test light device which can be

       used to test whether an electrical circuit is working. The officers also found

       model rocket engines. Finally, they found black electrical tape and black wire

       that was consistent with the packaging that was found in the trash, and an

       empty package of Duracell 9-volt batteries. The squad had found a Duracell

       brand 9-volt battery among the bomb’s components.


[15]   On the afternoon of December 29, 2016, Investigator Brian Campbell

       questioned Mackey at the MPD’s offices. During the hour-long interview,

       Mackey said, “I f*****g did it because I’m a f*****g nutball.” State’s Ex. 1, at

       43:38. “I did it. I’m the f*****g bad guy.” Id. at 48:16.


[16]   Police officers sent the bomb components and certain items found during the

       search of Mackey’s house to the Federal Bureau of Alcohol, Tobacco,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 6 of 21
       Firearms, and Explosives (“ATF”) for analysis. An ATF analyst confirmed

       that the device had been a complete, potentially functional pipe bomb. The

       PVC pipes had been filled with a type of gunpowder known as Hodgdon

       Pyrodex. Model rocket engines were placed in the bomb and should have

       ignited the explosion.


[17]   Next, the analyst compared the components of the bomb with items found in

       Mackey’s house. Epoxy found on the bomb was chemically consistent with

       epoxy found in the house. Black electrical tape found on the bomb was

       physically and chemically consistent with tape found in the house. A yellow

       wire found in Mackey’s house was physically and chemically consistent with

       yellow wire that was found on the bomb. Finally, empty packaging for a brand

       of model rocket engines that was found in Mackey’s home had contained a type

       of model rocket engine that was physically and chemically consistent with the

       model rocket engine that was found in the bomb.


[18]   The ATF agents also performed DNA testing on swabs taken from the

       cardboard box and the bomb components. They compared the resulting DNA

       profiles with Mackey and Harvey’s DNA profiles. Mackey’s DNA profile was

       consistent with a profile of DNA that was found on the outside of the

       cardboard box. His DNA profile was also consistent with profiles of DNA that

       were found on multiple bomb components.


[19]   Finally, ATF Agent Michael Eggleston, a specialist in explosives and

       incendiary devices, examined the bomb components. He determined that it


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 7 of 21
       had been built with all of the necessary components to be a functioning

       explosive device. Agent Eggleston classified it as a victim-initiated improvised

       explosive device, meaning that an act by a victim was necessary to trigger the

       detonation. He noted several redundancies in the device, such as multiple PVC

       pipes and multiple nine-volt batteries, which indicated to him that the builder

       took extra steps to ensure that the device functioned as intended.


[20]   On January 9, 2017, the State charged Mackey with attempted murder;

       possession of a destructive device or explosive; attempted aggravated battery, a
                              7                                                                              8
       Level 3 felony; intimidation, a Level 5 felony; and criminal recklessness. In

       addition, the State filed a notice of intent to seek an habitual offender

       sentencing enhancement.


[21]   Mackey called Olis while he was incarcerated, and the call was recorded.

       Mackey instructed her to tell the police that she actually saw him with a DVD

       box instead of the wooden box on the night of December 28, and she had been

       mistaken about what she saw because she had low blood sugar at the time. As

       a result, the State later charged Mackey with conspiracy to commit perjury.




       7
           Ind. Code §§ 35-42-2-1.5 (2014) (aggravated battery), 35-41-5-1.
       8
        The State also charged Mackey with possessing, maintaining, or transporting a regulated explosive by a
       convicted felon, a Level 5 felony; stalking, a Level 5 felony; and two counts of invasion of privacy, both Class
       A misdemeanors enhanced to Level 6 felonies due to prior convictions of the same offense; but later
       dismissed those charges.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019                       Page 8 of 21
[22]   On April 20, 2017, Mackey filed a motion to suppress statements that he made

       to Investigator Campbell. The State filed a response, and the trial court held a

       hearing, during which the court ordered the parties to submit briefs. The court

       received the briefs and subsequently denied Mackey’s motion, concluding:

       “there is no evidence that the confession made by [Mackey] was involuntary.”

       Appellant’s App. Vol. 2, p. 232.


[23]   A jury trial began on April 16, 2018. During trial, Mackey waived his right to a

       jury trial on the habitual offender enhancement. The jury determined Mackey

       was guilty of possession of a destructive device or explosive, attempted

       aggravated battery, intimidation, criminal recklessness, and conspiracy to

       commit perjury. The jury could not agree on a verdict as to attempted murder,

       and the court declared a mistrial as to that charge. Next, the court heard

       evidence on the habitual offender enhancement and determined the State had

       proven beyond a reasonable doubt that Mackey was an habitual offender.


[24]   The State notified the Court and Mackey that it intended to retry him on the

       charge of attempted murder. Mackey objected and requested permission to

       pursue a discretionary interlocutory appeal. The court denied Mackey’s

       request. Next, the retrial on the charge of attempted murder began on

       September 17, 2018. The jury determined Mackey was guilty of that charge.


[25]   At sentencing, the trial court merged the charge of attempted aggravated battery

       into the charge of attempted murder and imposed the following sentences:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 9 of 21
        Attempted murder plus habitual                     Sixty years
        offender enhancement

        Possession of a destructive device or              Thirty years
        explosive

        Intimidation                                       Six years

        Criminal recklessness                              Two and one-half years

        Conspiracy to commit perjury                       Two and one-half years




[26]   The trial court ordered Mackey to serve each of his sentences consecutively, for

       an aggregate sentence of 101 years. This appeal followed.


                                    Discussion and Decision
                  I. Incriminating Statements During Questioning
[27]   Mackey argues the trial court should not have admitted into evidence a

       recording of his post-arrest statements to Investigator Campbell. In general,

       questions regarding the admission of evidence are within the sound discretion

       of the trial court, and we review the court’s decision only for an abuse of that

       discretion. Williams v. State, 997 N.E.2d 1154, 1160 (Ind. Ct. App. 2013). A

       trial court abuses its discretion if its decision is clearly against the logic and

       effect of the facts and circumstances before it, or if the court has misinterpreted

       the law. Id.


[28]   When the defendant challenges the admissibility of an incriminating statement

       to police, the State must prove beyond a reasonable doubt that the statement

       was given voluntarily. Luckhart v. State, 736 N.E.2d 227, 229 (Ind. 2000). The
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 10 of 21
       voluntariness of an incriminating statement is determined from the totality of

       the circumstances. Id. (quotation omitted). We consider the entire

       interrogation, not any single act by the police or condition of the suspect. Id.

       Relevant factors include the crucial element of police coercion, the length of the

       interrogation, its location, its continuity, the defendant’s maturity, education,

       physical condition, and mental health. Williams, 997 N.E.2d at 1160. We

       review the trial court’s ruling, without reweighing the evidence, to determine if

       there was substantial evidence of probative value to support the ruling. Garmon

       v. State, 775 N.E.2d 1217, 1220 (Ind. Ct. App. 2002).


[29]   Officers arrested Mackey on December 29, 2016, and took him to the police

       station, where they placed him in an interview room. Investigator Campbell

       began questioning Mackey around 3 p.m. The questioning was recorded by

       camera. Investigator Campbell began by reading Mackey a form explaining his

       Miranda rights. Mackey, who had graduated from high school, indicated he

       understood his rights. Next, Investigator Campbell handed Mackey the form,

       and he read it and signed it. Mackey later testified that he had understood his

       rights at the time of the interview.


[30]   The interview lasted approximately an hour, during which Mackey made the

       incriminating statements discussed above. The interview ended when Mackey

       asked for an attorney.


[31]   Mackey argues he did not validly consent to the interview because he was

       mentally ill and unable to understand the questions. During the interview, he


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 11 of 21
       stated he had gone to a mental health evaluator earlier that morning for stress

       and bipolar disorder. Mackey further stated he had called his children the

       previous night, but their mother would not let him talk to them. He told
                                                                                                            9
       Investigator Campbell, “I’m about ready to break.” State’s Ex. 1, at 42:28.

       Toward the end of the interview, Mackey alternated between crying and raising

       his voice. In addition, Mackey later testified during the hearing on his motion

       to suppress that he had experienced suicidal ideations on the morning of

       December 29, 2016, and that he had been diagnosed with bipolar disorder,

       anxiety, and explosive temper disorder when he was fifteen or sixteen.


[32]   As is noted above, a defendant’s mental health is one of the factors a court

       weighs when considering the voluntariness of a police interview. Nevertheless,

       “severe mental problems,” standing alone, are not “sufficient to require the

       exclusion of a statement.” Hurt v. State, 694 N.E.2d 1212, 1218 (Ind. Ct. App.

       1998), trans. denied. In this case, Mackey admitted that he understood his

       Miranda rights. Although he was upset during the interview, he was alert and

       oriented to time and place. Mackey never expressed confusion or claimed not

       to understand Investigator Campbell’s questions. Furthermore, he exercised his

       right to counsel, thus ending the interview. We conclude Mackey’s claim of

       incapacity resulting from mental illness is a request to reweigh the evidence.




       9
         The record on appeal contains two versions of the recording. State’s Exhibit 1, the full recording, was
       admitted during the hearing on Mackey’s motion to suppress. State’s Exhibit 78, a redacted version of the
       recording, was admitted into evidence at trial. We will refer to State’s Exhibit 1 in our analysis.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019                   Page 12 of 21
[33]   Next, Mackey argues Investigator Campbell engaged in deception during the

       interview because the investigator told him, “we have little doubt that you did

       it.” State’s Ex. 1, at 31:50. We disagree with Mackey’s argument that

       Investigator Campbell lied. To the contrary, the investigator supported his

       statement of opinion by discussing the evidence. He told Mackey, “We’ve

       talked with [Olis].” Id. at 34:35 Investigator Campbell further said during the

       interview, “I know you did it, we’ve searched your house, we saw what you put

       in the trash can” Id. at 36:41. He also said, “We’ve talked to a lot of people,

       man.” Id. at 36:38.


[34]   Instead of lying, Investigator Campbell presented his view of the case,

       supported by assessments of the evidence. Further, he never shouted at

       Mackey. Mackey later conceded that he “wasn’t threatened” by Campbell and

       that there was no “police misconduct.” Tr. Vol. II, pp. 11, 15. Under the

       totality of the circumstances, the trial court did not err in concluding Mackey

       voluntarily waived his Miranda rights and made incriminating statements of his

       own free will. The court did not abuse its discretion in admitting the recording

       of Mackey’s incriminating statements. See Harrington v. State, 755 N.E.2d 1176,

       1182 (Ind. Ct. App. 2001) (defendant’s incriminating statements were

       voluntary; the officers did not engage in deception and were unaware of

       defendant’s cognitive impairments because he appeared to be of average

       intelligence and understood their questions).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 13 of 21
                                               II. Double Jeopardy
[35]   Mackey claims his convictions of Level 1 felony attempted murder and Level 2

       felony possession of a destructive device or explosive violate his protections
                                                                                                                      10
       against double jeopardy under article I, section 14 of the Indiana Constitution.

       He is not presenting a claim under the Double Jeopardy Clause of the United

       States Constitution.


[36]   Section 14 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). The Indiana Supreme Court has explained that

       two or more offenses violate section 14 “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. (emphasis omitted).


[37]   Mackey argues his convictions for attempted murder and for possession of a

       destructive device or explosive violate both the statutory elements test and the

       actual evidence test. Turning to the statutory elements test, the objective “is to

       determine whether the essential elements of separate statutory crimes charged

       could be established hypothetically.” Id. at 50. Courts must compare “the

       essential statutory elements of one charged offense with the essential statutory

       elements of the other charged offense,” along with the charging instrument. Id.




       10
            Section 14 provides, in relevant part: “No person shall be put in jeopardy twice for the same offense.”


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019                       Page 14 of 21
       “Each offense must contain at least one element which is separate and distinct

       from the other offense so that the same evidence is not necessary to convict for

       both offenses.” Id. at 52.


[38]   The elements of attempted murder, as charged in this case, are as follows: (1)

       Mackey (2) with the specific intent to kill Harvey (3) engaged in conduct that

       constituted a substantial step (4) toward killing Harvey (5) by means of

       constructing and/or delivering a destructive device or explosive to her home.

       Ind. Code §§ 35-42-1-1; 35-41-5-1; Appellant’s App. Vol. 2, p. 3. The elements

       of possession of a destructive device or explosive, as charged in this case, are as

       follows: (1) Mackey (2) possessed, transported, received, or placed (3) a

       destructive device or explosive (4) with the knowledge or intent (5) that it would

       be used to kill, injure or intimidate an individual or to destroy property. Ind.

       Code § 35-47.5-5-8, Appellant’s App. Vol. 2, p. 4.


[39]   A comparison of the two offenses reveals that they contain different elements.

       The attempted murder charge requires proof of a specific intent to kill Harvey,

       but the charge of possession of a destructive device or explosive does not

       require proof of intent to kill anyone. Intent to destroy property could instead

       suffice. Furthermore, the charge of attempted murder requires construction

       and/or delivery of a destructive device or explosive, but proof of mere

       possession or transportation of a destructive device or explosive would establish

       the second charge. We conclude the two offenses do not violate the statutory

       elements portion of the Richardson double jeopardy analysis. See Thy Ho v. State,

       725 N.E.2d 988, 992 (Ind. Ct. App. 2000) (charges of armed robbery and theft

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 15 of 21
       did not violate statutory elements test; the offenses as charged involved different

       victims and different types of property).


[40]   When the statutory elements test does not disclose a double jeopardy violation,

       we turn to the second part of the Richardson analysis, the actual elements test.

       717 N.E.2d at 52. As our Supreme Court stated:


               Under this inquiry, the actual evidence presented at trial is
               examined to determine whether each challenged offense was
               established by separate and distinct facts. To show that two
               challenged offenses constitute the ‘same offense’ in a claim of
               double jeopardy, a defendant must demonstrate 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.


       Id. at 53. Courts must “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.” Spivey v. State, 761

       N.E.2d 831, 832 (Ind. 2002).


[41]   Mackey argues, “it is almost inconceivable that the jury” would have relied on

       different evidence to sustain the two charges. Appellant’s Br. p. 20. We

       disagree. The jury was instructed that Mackey was accused of committing the

       two offenses “on or about December 29, 2016.” Appellant’s App. Vol. 4, p. 6.

       The State presented evidence that Harvey discovered the explosive device on

       her porch very early in the morning on December 29, 2016, which pertained to

       the charge of attempted murder. By contrast, the State also presented evidence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 16 of 21
       that Mackey’s then-girlfriend, Olis, had seen Mackey handling the explosive

       device late on the night of December 28, 2016, which pertained to the charge of

       possession of a destructive device or explosive. During closing arguments, the

       State pointed to Olis’ testimony as proof that Mackey had possessed the

       destructive device or explosive.


[42]   If the only evidence of Mackey’s possession of a destructive device or explosive

       had been his placement of the device on Harvey’s porch, then his claim under

       the “same evidence” test may have prevailed. See, e.g., Wilson v. State, 611

       N.E.2d 160, 166 (Ind. Ct. App. 1993) (convictions for attempted murder and

       possession of an explosion violated double jeopardy protections; the same

       evidence (defendant’s act of attaching a bomb to victim’s car) supported both

       convictions), trans. denied. In the current case, the State presented separate and

       distinct evidence for the offenses of attempted murder and possession of a

       destructive device or explosive. Under these facts and circumstances, Mackey

       has not demonstrated a reasonable possibility that the jury could have used the

       same evidence to support both convictions. His convictions of attempted

       murder and possession of a destructive device or explosive do not violate his

       double jeopardy protections under the Indiana Constitution.


[43]   We reach a different conclusion with respect to Mackey’s convictions of

       attempted murder and Level 5 felony intimidation. Mackey did not object to

       these convictions on double jeopardy grounds at trial, but we may raise double

       jeopardy claims on appeal because “questions of double jeopardy implicate



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 17 of 21
       fundamental rights.” Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App.

       2015), trans. denied.


[44]   The jury was instructed that Mackey was accused of committing the two

       offenses “on or about December 29, 2016.” Appellant’s App. Vol. 4, pp. 6-7.

       The State presented evidence that Harvey discovered the explosive device on

       her porch very early in the morning on December 29, 2016, which pertained to

       the charge of attempted murder. But the State presented no evidence of any act

       of intimidation by Mackey (that is, communication of a threat) on or about that

       date except for the placement of the explosive device on her porch. At trial, the

       State argued to the jury that Mackey’s threatening calls to Harvey supported the

       intimidation charge, but he made those calls a month before the explosive

       device incident. Stretching the phrase “on or about” to include acts a month

       prior to the specified date does not comport with standards of notice pleading.


[45]   Following the holding in Wilson, we conclude there is a reasonable possibility

       that the jury cited the same evidence (Mackey’s delivery of an explosive device

       to Harvey’s house) to establish the elements of attempted murder and

       intimidation. We reverse Mackey’s conviction of intimidation and remand

       with instructions to vacate that conviction on double jeopardy grounds.


                                              III. Sentencing
[46]   Mackey claims the aggregate sentence for his convictions of possession of a

       destructive device or explosive and criminal recklessness are erroneous because



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 18 of 21
                                                                                                             11
       the sentence exceeds the statutory limit for an episode of criminal conduct.

       An appellate claim of sentencing error is subject to review for an abuse of

       discretion. Reynolds v. State, 657 N.E.2d 438, 440 (Ind. Ct. App. 1995). A trial

       court abuses its discretion if its decision is clearly against the logic and effect of

       the facts and circumstances before it, or if the court has misinterpreted the law.

       Williams, 997 N.E.2d at 1160.


[47]   Indiana Code section 35-50-1-2 (2016) governs consecutive sentences involving

       episodes of criminal conduct. The statute distinguishes between crimes of

       violence and other crimes. For purposes of Section 35-50-1-2, the offenses of

       possession of a destructive device or explosive and criminal recklessness are not

       considered crimes of violence. The statute further states:


               The court may order terms of imprisonment to be served
               consecutively even if the sentences are not imposed at the same
               time. However, except for crimes of violence, the total of the
               consecutive terms of imprisonment, exclusive of terms of
               imprisonment under IC 35–50–2–8 and IC 35–50–2–10 (before
               its repeal) to which the defendant is sentenced for felony
               convictions arising out of an episode of criminal conduct shall
               not exceed the period described in subsection (d).




       11
         Mackey also argues that his sentence for intimidation is part of the same episode of criminal conduct, but
       we have reversed that conviction and sentence on double jeopardy grounds and need not address it further.
       Mackey does not claim that the trial court erred in ordering him to serve his sentences for attempted murder
       and conspiracy to commit perjury consecutively to each other and to the other sentences.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019                    Page 19 of 21
       The parties agree that, pursuant to subsection (d) of the statute and the facts of

       this case, Mackey’s maximum sentence for a single episode of criminal conduct

       for nonviolent felonies may not exceed thirty-two years.


[48]   Mackey argues his convictions for possession of a destructive device or

       explosive and criminal recklessness arose out of a single episode of criminal

       conduct. He thus concludes that his aggregate sentence for those convictions,

       thirty-two and a half years, exceeds the thirty-two-year statutory limit.


[49]   The State concedes that Mackey’s convictions for possession of a destructive

       device or explosive and criminal recklessness arose from a single episode of

       criminal conduct. The State further concedes that Mackey’s aggregate sentence

       for those two convictions, thirty-two-and one-half years, exceeds the statutory

       limit by six months and must be corrected. In light of the State’s concessions,

       we conclude that Mackey’s aggregate sentence for possession of a destructive

       device or explosive and criminal recklessness exceeds the statutory limit and

       must be reduced by six months. We remand for resentencing within the

       statutory limit. See Dimmitt v. State, 25 N.E.3d 203, 210 (Ind. Ct. App. 2015)

       (remanding for resentencing with instructions; State had conceded in the trial

       court that offenses were part of a single episode of criminal conduct), trans.

       denied.


                                                Conclusion
[50]   For the reasons stated above, we affirm the judgment of the trial court in part,

       reverse in part, and remand with instructions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 20 of 21
[51]   Affirmed in part, reversed in part, and remanded with instructions.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019   Page 21 of 21
