MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                             Apr 04 2019, 8:20 am
the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                        Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Talisha Griffin                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Marjorie Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Griffin,                                            April 4, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2426
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Christina R.
Appellee-Plaintiff                                        Klineman, Judge
                                                          Trial Court Cause No.
                                                          49G17-1805-F6-15743



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019                    Page 1 of 8
[1]   James Griffin appeals following his convictions for Level 6 Felony Residential

      Entry,1 Level 6 Felony Domestic Battery,2 Class A Misdemeanor Interference

      With the Reporting of a Crime,3 Class A Misdemeanor Theft,4 and Class B

      Misdemeanor Criminal Mischief,5 and his adjudication as an Habitual

      Offender.6 Griffin argues that some of his convictions violate the prohibition

      against double jeopardy and that the trial court erred in the way it imposed the

      habitual offender sentence enhancement. Finding a double jeopardy violation

      and a sentencing order in need of clarification, we affirm in part, reverse in part,

      and remand with instructions.


                                                     Facts
[2]   In May 2018, Shirley Johnson and Griffin had been in an on-and-off

      relationship for several years. On May 8, 2018, Griffin called Johnson to see if

      she wanted company. She replied that she was not in the mood for company

      and he became angry, calling her repeatedly until she turned off the ringer on

      her phone.




      1
          Ind. Code § 35-43-2-1.5.
      2
          Ind. Code § 35-42-2-1.3.
      3
          Ind. Code § 35-45-2-5.
      4
          I.C. § 35-43-4-2(a).
      5
          I.C. § 35-43-1-2.
      6
          Ind. Code § 35-40-2-8.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019   Page 2 of 8
[3]   As Johnson was getting ready for bed that evening, she went to close her

      bedroom window and noticed Griffin standing outside. She exclaimed, “What

      the ‘F’ are you doing here? I told you not to come by.” Tr. Vol. II p. 82.

      Griffin began knocking on Johnson’s front door; Johnson repeatedly told him

      to go away. She checked to make sure that her patio door was locked and

      looked at the front door. Seeing that the security chain was fastened, she

      assumed the deadbolt was also locked.


[4]   Johnson went back to her bedroom and heard the security chain break and

      come off the front door. She headed to the front door and found Griffin in the

      hallway by her bedroom. She grabbed her cellphone, but as soon as she had it

      in her hand, Griffin grabbed it and said, “Try it.” Id. at 84. He then went to

      another room to retrieve some of his belongings.


[5]   While Griffin was in the other room, Johnson ran out of the apartment to get

      help. He chased her outside, grabbed her right upper forearm, and pushed her

      to the ground as she screamed for help. She stood up and ran to another

      apartment building to get help. She eventually found a neighbor who called

      911. Indianapolis Metropolitan Police Officer Siitupe Peko was dispatched to

      the scene and saw that Johnson’s front door was slightly open and that the

      “little security chain link was broken.” Id. at 112.


[6]   On May 16, 2018, the State charged Griffin with Level 6 felony residential

      entry (Count I), Level 6 felony domestic battery (Count II), Class A

      misdemeanor interference with the reporting of a crime (Count III), Class A


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019   Page 3 of 8
      misdemeanor theft (Count IV), and Class B misdemeanor criminal mischief

      (Count V), and alleged that he was an habitual offender (Count VI). Griffin’s

      jury trial took place on August 16, 2018, and the jury found him guilty as

      charged. He waived his right to a jury on the habitual offender enhancement,

      and the trial court found that he was an habitual offender, attaching the

      enhancement to Count I.


[7]   On September 11, 2018, the trial court sentenced Griffin to two and one-half

      years for Count I, to be enhanced by three years for the habitual offender

      adjudication; to 365 days each on Counts II, III, and IV; and to 180 days on

      Count V. The trial court ordered that the sentences for counts II through V

      would run concurrent with one another and with the sentence for Count I, for

      an aggregate term of five and one-half years imprisonment. Griffin now

      appeals.


                                   Discussion and Decision
                                        I. Double Jeopardy
[8]   Griffin first argues that two pairs of his convictions violate the prohibition

      against double jeopardy. Specifically, he points to his convictions for

      residential entry and criminal mischief, and for interference with the reporting

      of a crime and theft.


[9]   Two convictions violate the double jeopardy clause of the Indiana Constitution

      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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019   Page 4 of 8
       to establish the essential elements of a second challenged offense.” Richardson v.

       State, 717 N.E.2d 32, 53 (Ind. 1999). A “reasonable possibility” turns on the

       practical assessment of whether the factfinder may have latched onto exactly

       the same facts for both convictions. Garrett v. State, 992 N.E.2d 710, 720 (Ind.

       2013).


                   A. Residential Entry and Criminal Mischief
[10]   To convict Griffin of Level 6 felony residential entry, the State was required to

       prove that he knowingly broke and entered Johnson’s dwelling. I.C. § 35-43-2-

       1.5. Conversely, to convict him of Class B misdemeanor criminal mischief, the

       State was required to prove that Griffin recklessly, knowingly, or intentionally

       damaged Johnson’s door frame and/or latch without her consent. I.C. § 35-43-

       1-2(a).


[11]   The manner in which Griffin broke and entered Johnson’s dwelling is irrelevant

       to the crime of residential entry. All that the State needed to prove to support

       this charge was that Johnson did not give Griffin permission to enter her home

       and he entered anyway. Likewise, the fact that Griffin entered the apartment is

       irrelevant to the crime of criminal mischief. Instead, to support the criminal

       mischief charge, the State had to prove that Griffin damaged the door frame

       and/or latch without her consent. Under these circumstances, we find no

       reasonable possibility that the evidentiary facts used by the jury to establish the

       essential elements of residential entry were also used to establish the essential




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019   Page 5 of 8
       elements of criminal mischief. In other words, these convictions do not violate

       the prohibition against double jeopardy.


            B. Interference with Reporting of a Crime and Theft
[12]   To convict Griffin of Class A misdemeanor interference with the reporting of a

       crime, the State was required to prove that, with the intent to commit, conceal,

       or aid in the commission of a crime, Griffin knowingly interfered with or

       prevented Johnson from using a 911 emergency telephone system. I.C. § 35-45-

       2-5. To convict him of Class A misdemeanor theft, the State was required to

       prove that Griffin knowingly exerted unauthorized control over Johnson’s cell

       phone with the intent to deprive Johnson of any part of its value or use. I.C. §

       35-43-4-2(a).


[13]   Here, the same act—the act of Griffin taking Johnson’s cell phone out of her

       hands—underlies both convictions. The State maintains that it was the fact that

       Griffin then kept the cell phone that establishes the theft offense and sets it apart

       from the interference offense, but we cannot agree. The moment he took

       Johnson’s cell phone with the requisite intent, the crime of theft was

       complete—as was the crime of interference with the reporting of a crime.

       Therefore, these two convictions violate the prohibition against double

       jeopardy.


[14]   To remedy this double jeopardy violation, one of these convictions must be

       vacated. Both of these convictions are Class A misdemeanors. If two

       convictions that violate double jeopardy are of equal severity, the determination

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019   Page 6 of 8
       of which conviction to vacate is within the discretion of the reviewing court.

       Moala v. State, 969 N.E.2d 1061, 1066 (Ind. Ct. App. 2012). Therefore, we

       reverse the trial court’s judgment with respect to Class A misdemeanor

       interference with the reporting of a crime and remand with instructions to

       vacate that conviction.7


                              II. Habitual Offender Enhancement
[15]   Finally, Griffin argues that the way in which the trial court structured Griffin’s

       sentence is erroneous. A habitual offender adjudication “does not result in a

       consecutive sentence.” I.C. § 35-50-2-8(j). Instead, the trial court “shall attach

       the habitual offender enhancement to the felony conviction with the highest

       sentence imposed and specify which felony count is being enhanced.” Id.


[16]   Here, it is apparent that the trial court intended to attach the habitual offender

       enhancement to Griffin’s Level 6 felony residential entry conviction, as

       evidenced by its comments during the habitual offender phase of the trial and

       the sentencing hearing, as well as the notes included in the “confinement

       comments” for Counts I and VI on the sentencing order.


[17]   Nevertheless, the sentencing order initially lists the habitual offender finding as

       a separate count with a separate sentence, ordering the habitual offender

       enhancement to run consecutive to the residential entry conviction. This is




       7
           This reversal will not affect Griffin’s aggregate sentence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019   Page 7 of 8
       erroneous, albeit inadvertently so, and we remand so that the trial court can

       modify its sentencing order to show that the habitual offender finding is not a

       separate sentence but is instead an enhancement attached to the residential

       entry conviction.


[18]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to vacate the interference with the reporting of a

       crime conviction and to modify the sentencing order as instructed herein.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2426 | April 4, 2019   Page 8 of 8
