      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                             Apr 28 2015, 6:33 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Elizabeth A. Bellin                                       Gregory F. Zoeller
      Elkhart, Indiana                                          Attorney General of Indiana
                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jonathan G. McPherson,                                    April 28, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A04-1409-CR-428
              v.                                                Appeal from the Elkhart Superior
                                                                Court
      State of Indiana,                                         The Honorable George W.
                                                                Biddlecome, Judge
      Appellee-Plaintiff.
                                                                Case No. 20D03-1206-FA-30




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Jonathan G. McPherson sold cocaine twice to a confidential informant from his

      house, which was directly across the street from a Boys and Girls Club.
      Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015           Page 1 of 15
      McPherson was convicted of two counts of Class A felony dealing in cocaine

      (within 1000 feet of youth-program center), Class D felony maintaining a

      common nuisance, and Class B felony unlawful possession of a firearm by a

      serious violent felon (SVF); he was also found to be a habitual offender. The

      trial court sentenced him to an aggregate term of ninety-three years.


[2]   McPherson appeals raising several issues. First, he contends that his habitual-

      offender enhancement and SVF conviction are an impermissible double

      enhancement because they are based on the same prior felony. Second, he

      contends that the evidence is insufficient to prove that he dealt cocaine within

      1000 feet of a youth-program center. Last, he contends that the evidence is

      insufficient to support his habitual-offender enhancement because the State did

      not prove that he was the one who committed the prior unrelated felonies.


[3]   We conclude that the trial court erred by ordering McPherson’s SVF sentence

      and habitual-offender enhancement to run consecutively. We therefore remand

      this case with instructions to run McPherson’s sentence for unlawful possession

      of a firearm by a SVF concurrently, resulting in a new aggregate sentence of

      seventy-five years. However, we conclude that the evidence is sufficient to

      prove that the Boys and Girls Club is a youth-program center and that the

      “Jonathan G. McPherson” in this case is the same person who was convicted of

      the prior unrelated felonies.



                            Facts and Procedural History

      Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 2 of 15
[4]   On May 16 and May 18, 2012, McPherson sold cocaine to different

      confidential informants working with the Elkhart Police Department.

      McPherson conducted both sales at his house, 412 Brady Street, in Elkhart.

      Directly across the street from McPherson’s house, located at 411 Brady Street,

      is “Cornerstone Ministries Boy’s and Girl’s Club.” The sign on the building

      reads:

               Cornerstone Ministries Boy’s and Girl’s Club
               By Sandy Ridge Mennonite Church
               Meet Every Wednesday 5:30 p.m.
      Ex. 9 (phone numbers omitted). Detective Tim Freel, who used to live in the

      neighborhood, explained that the Boys and Girls Club “would have different

      groups of children come in there; typically, on a Wednesday night they had a

      program called ‘Wednesday Night Club.’”1 Tr. p. 391. He added that children

      often played basketball outside at the Club. Id. at 391-92. In addition,

      Detective Andrew Whitmyer, who participated in the surveillance of

      McPherson’s house on May 16, recalled seeing more children than usual at the

      Boys and Girls Club that day. Id. at 272. He observed both “younger” and

      “older” kids playing and said that the activities appeared to be organized. Id. at

      272, 273.




      1
       Detective Freel testified that he lived in a house in the neighborhood as part of the “Officer Next Door”
      program, which provided rent-free housing to officers who lived in troubled neighborhoods. Tr. p. 391.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015              Page 3 of 15
[5]   Elkhart police officers obtained and executed a search warrant for McPherson’s

      house on May 29. McPherson and his girlfriend were home at the time. The

      officers found two digital scales with powdery residue and baggies with cut-off

      corners. The officers also found a loaded .40 caliber semiautomatic pistol

      inside a purse, a box of .40 caliber ammunition in a tote, and a loaded

      magazine for the pistol inside the pocket of a red sweatshirt—all in the master

      bedroom that McPherson used.


[6]   Detective Freel read McPherson his Miranda rights and then began to question

      him. McPherson admitted to “selling drugs from the house,” “admitted to a

      firearm that was found inside the house,” knew that his house was directly

      across the street from the Boys and Girls Club, and admitted that the $804 in

      cash found on his person was “proceeds from drug sales.” Id. at 382. Although

      no drugs were found during the search of McPherson’s house, McPherson

      explained that he “was currently out of drugs and that he was planning to . . .

      re-up, or purchase more drugs, so that he could sell those drugs later on that

      afternoon.” Id. at 383. Finally, McPherson admitted that he had a prior felony

      conviction for dealing in cocaine and that as a result of that felony conviction,

      he could not possess a firearm. Id. at 493-94.


[7]   The State charged McPherson with two counts of Class A felony dealing in

      cocaine (within 1000 feet of youth-program center) for the controlled buys on

      May 16 and 18, 2012; Class D felony maintaining a common nuisance for drug

      activities at his house on or between May 16 and 29; and Class B felony

      unlawful possession of a firearm by a SVF for the firearm found during the May

      Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 4 of 15
      29 search of his house. The State alleged that McPherson was a SVF as a result

      of his 1997 conviction in Elkhart County for Class B felony dealing in cocaine.

      State’s Ex. 201; see also Ind. Code Ann. § 35-47-4-5(b)(23) (West 2012)

      (classifying dealing in cocaine as a serious violent felony). The State also

      alleged that McPherson was a habitual offender. For the two prior unrelated

      felony convictions, see Ind. Code Ann. § 35-50-2-8 (West 2012), the State used

      McPherson’s 1997 dealing-in-cocaine conviction as well as McPherson’s 2008

      conviction in Elkhart County for criminal recklessness resulting in serious

      bodily injury.


[8]   McPherson’s jury trial was conducted in three phases. During the first phase,

      the jury found McPherson guilty of both dealing counts and maintaining a

      common nuisance. During the second phase, the jury found McPherson guilty

      of unlawful possession of a firearm by a SVF. During the third and final phase,

      the jury found that McPherson was a habitual offender. The trial court

      sentenced McPherson to an aggregate term of forty-five years for the dealing

      and maintaining-a-common-nuisance convictions. The court then sentenced

      McPherson to a consecutive term of eighteen years for unlawful possession of a

      firearm by a SVF. Finally, for the habitual-offender finding, the court

      sentenced McPherson to “an additional thirty (30) years” at the DOC; the court

      explained that the habitual-offender enhancement “applies only to the Dealing

      in Cocaine [convictions] and not to the [SVF] in Possession of a Handgun”

      conviction. Tr. p. 579. The court reasoned:




      Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 5 of 15
               [T]he law is clear that you cannot use the same crime to elevate a
               conviction to a B felony for . . . [SVF] in Possession of a Firearm, and
               also an Habitual Offender Enhancement that applies to that
               conviction. However, I don’t think that . . . there’s any prohibition of
               using the two felonies which the [S]tate used to establish that the
               defendant is an habitual criminal, even though one of the two was the
               same one that enhanced the [SVF] in Possession of a Firearm to a “B”
               felony.
       Id. at 579-80.


[9]    McPherson now appeals his aggregate sentence of ninety-three years.



                                  Discussion and Decision
[10]   McPherson raises four issues on appeal, which we reorder and restate as

       follows. First, he contends that his habitual-offender enhancement and SVF

       conviction are an impermissible double enhancement because they are based on

       the same prior felony. Second, he contends that the evidence is insufficient to

       prove that he dealt cocaine within 1000 feet of a youth-program center. Last,

       he contends that the evidence is insufficient to support his habitual-offender

       enhancement because the State did not prove that he was the one who

       committed the prior unrelated felonies.



                                   I. Double Enhancement
[11]   McPherson contends that his habitual-offender enhancement and SVF

       conviction “constitute an impermissible double enhancement” since they are

       based on the same prior felony: his 1997 dealing-in-cocaine conviction.

       Appellant’s Br. p. 8. Citing Sweatt v. State, 887 N.E.2d 81 (Ind. 2008), and
       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 6 of 15
       Pedraza v. State, 887 N.E.2d 77 (Ind. 2008), the State concedes that the “trial

       court’s decision that McPherson’s SVF sentence could be served consecutively

       to his habitual-offender enhanced sentences is incorrect.” Appellee’s Br. p. 6.


[12]   We agree that the trial court erred in ordering McPherson’s SVF sentence and

       habitual-offender enhancement to run consecutively. In Sweatt, a jury found

       Sweatt guilty of Class B felony burglary, Class B felony unlawful possession of

       a firearm by a SVF, and also of being a habitual offender. The trial court

       sentenced Sweatt to twenty years for each count, to be served consecutively,

       and then enhanced the burglary conviction by thirty years for the habitual-

       offender finding, for an aggregate term of seventy years. On appeal, Sweatt

       argued that the trial court erred by enhancing his burglary sentence under the

       habitual-offender statute because the same prior felony conviction—his 1994

       rape conviction— was used to establish that he was a SVF. The Indiana

       Supreme Court framed the issue as whether a given felony conviction can be

       the basis for an SVF count and also serve as grounds for a habitual-offender

       finding. Sweatt, 887 N.E.2d at 83. The Court concluded:

               Sweatt’s conviction for possession of a firearm by an SVF, based on
               his 1994 rape conviction, and his status as an habitual offender, based
               on the same 1994 rape but applied to the burglary conviction, do not
               by themselves create a double enhancement.
       Id. at 84. The Court explained that a trial court may avoid double enhancement

       by attaching the habitual “to some offense other than the SVF, but, when

       counts are ordered served consecutively this is a distinction without a

       difference.” Id.       The Court continued:


       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 7 of 15
                In sentencing an offender who has committed multiple crimes, trial
                courts face a decision as to whether the sentence on each count should
                run consecutively or concurrently, or a combination of both. Ind.
                Code Ann. § 35-50-1-2 (West 2007). In a case where separate counts
                are enhanced based on the same prior felony conviction, ordering the
                sentences to run consecutively has the same effect as if the
                enhancements both applied to the same count. This result is different
                only in form from the multiple enhancements the Court of Appeals
                found improper in Conrad [v. State, 747 N.E.2d 575 (Ind. Ct. App.
                2001), trans. denied]. On the other hand, if the trial court orders the
                sentences to run concurrently, the enhancements, though duplicative
                in name, operate just once to increase the defendant’s term of
                imprisonment.
       Id. (footnotes omitted). The Court remanded the case to the trial court to

       consider “whether to alter Sweatt’s sentence to remedy this defect.” Id. at 84-

       85.


[13]   Here, the trial court thought it was avoiding an impermissible double

       enhancement by attaching the habitual to McPherson’s dealing convictions 2—

       as opposed to his SVF conviction—but still ordering the sentences to run

       consecutively. However, as our Supreme Court explained in Sweatt,

       consecutive sentences are “a distinction without a difference.” Id. at 84. The

       Court reasoned that when the sentences are run concurrently, the

       enhancements “operate just once to increase the defendant’s term of



       2
        “It is well settled that an ‘habitual offender finding does not constitute a separate crime nor does it result in a
       separate sentence, rather it results in a sentence enhancement imposed upon the conviction of a subsequent
       felony.’” Stephens v. State, 10 N.E.3d 599, 603 n.5 (Ind. Ct. App. 2014) (quoting Hendrix v. State, 759 N.E.2d
       1045, 1048 (Ind. 2001)); see also Lewis v. State, 774 N.E.2d 941, 942 (Ind. Ct. App. 2002) (noting that a habitual-
       offender enhancement “can only be imposed upon one felony conviction” and that the trial court has discretion to
       choose which felony sentence to enhance). Accordingly, the trial court here should have attached the habitual-
       offender enhancement to just one of McPherson’s dealing convictions. On remand, the trial court should fix this
       error.


       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015                    Page 8 of 15
       imprisonment.” Id. Because running the sentences concurrently cures any

       error, we remand this case to the trial court with instructions to run

       McPherson’s sentence for unlawful possession of a firearm by a SVF

       concurrently.3 This will result in an aggregate sentence of seventy-five years as

       opposed to ninety-three years.4



                                   II. Youth-Program Center
[14]   Next, McPherson contends that the evidence is insufficient to prove that he

       dealt cocaine within 1000 feet of a youth-program center, which elevated his

       dealing convictions to Class A felonies. Our standard of review for sufficiency

       claims is well settled. In reviewing a claim challenging the sufficiency of the

       evidence, we do not reweigh the evidence or reassess the credibility of the

       witnesses. Sewell v. State, 973 N.E.2d 96, 100 (Ind. Ct. App. 2012). We

       consider only the evidence most favorable to the judgment and the reasonable

       inferences drawn therefrom. Id. We will affirm if the evidence and those




       3
         McPherson also contends that his trial counsel was ineffective for failing “to object to the trial court
       running” the sentences consecutively. Appellant’s Br. p. 8. In light of our resolution above, we do not need
       to reach the issue of ineffective assistance of trial counsel.
       4
         McPherson appears to argue that we should extend the Indiana Supreme Court’s rehearing opinion in Dye
       v. State, 984 N.E.2d 625 (Ind. 2013). In Dye, our Supreme Court held that “the State is not permitted to
       support [a defendant’s] habitual offender finding with a conviction that arose out of the same res gestae that
       was the source of the conviction used to prove [the defendant] was a serious violent felon.” Id. at 630. We,
       however, decline McPherson’s invitation to extend Dye. See Appellant’s Br. p. 14 (“The Defendant contends
       that this Court should go further, re-examine Anderson v. State, 774 N.E.2d at 906, and find that based on the
       rationale set forth in Dye v. State that any sentence, regardless of multiple counts, where the same prior felony
       conviction is used to enhance a person’s conviction and sentence is an impermissible double enhancement.”).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015                Page 9 of 15
       inferences constitute substantial evidence of probative value to support the

       verdict. Id.


[15]   When McPherson committed the crimes in this case, dealing in cocaine could

       be enhanced to a Class A felony if it occurred “within one thousand (1,000) feet

       of . . . a youth program center.”5 Ind. Code Ann. § 35-48-4-1(b)(3)(B)(iv) (West

       2012) (formatting altered). Youth-program center is defined as:

                (1) A building or structure that on a regular basis provides recreational,
                vocational, academic, social, or other programs or services for persons
                less than eighteen (18) years of age.
                (2) The real property on which a building or structure described in
                subdivision (1) is located.
       Ind. Code § 35-31.5-2-357(a). This statute “neither explicitly nor implicitly

       places any limitation on the content of the programs offered or the purposes for

       which children are present.” Whatley v. State, 928 N.E.2d 202, 207 (Ind. 2010).

       The only relevant characteristic of the programs and services offered is whether

       they were provided on a regular basis to people less than eighteen years of age.

       Id.




       5
         Under the newly amended criminal code, a youth-program center no longer can be used to enhance the
       level of the crime. See Ind. Code § 35-48-4-1; Ind. Code § 35-31.5-2-117.5; Ind. Code § 35-48-1-16.5.
       Specifically, Indiana Code section 35-48-1-16.5(3)(B), which became effective July 1, 2014, provides that a
       conviction can be enhanced if the person committed the offense within 500 feet of:
                (i) school property while a person under eighteen (18) years of age was reasonably
                expected to be present; or
                (ii) a public park while a person under eighteen (18) years of age was reasonably expected
                to be present.



       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015            Page 10 of 15
[16]   McPherson argues that the State failed to prove that the Boys and Girls Club,

       which was located directly across the street from him, “provided regular

       recreational, vocational, academic, social, or other programs to youth.”

       Appellant’s Br. p. 18. To the contrary, evidence was presented at trial that

       Cornerstone Ministries and Sandy Ridge Mennonite Church operated the Boys

       and Girls Club and that the Club offered meetings, called the “Wednesday

       Night Club,” every Wednesday at 5:30 p.m. Ex. 9; Tr. p. 391. In addition, the

       evidence also showed that children were often playing basketball outside the

       Club. This evidence is sufficient to prove that the Boys and Girls Club is a

       youth-program center. See Sewell, 973 N.E.2d at 100-01 (holding that evidence

       that showed the church held weekly meetings for students in junior high school

       and high school and on Sundays for youth choir and youth group was sufficient

       to establish that the church was a youth-program center). We therefore affirm

       McPherson’s Class A felony dealing convictions.



                      III. Habitual-Offender Enhancement
[17]   Last, McPherson contends that the evidence is insufficient to prove that he is

       the one who committed the two prior unrelated felonies that the State used to

       establish that he was a habitual offender. The standard of review for sufficiency

       of a habitual-offender enhancement is the same as for any other sufficiency

       claim. See Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct. App. 2010), trans.

       denied.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 11 of 15
[18]   The sentence of a person convicted of a felony may be enhanced by up to thirty

       years if he is a habitual offender. Dexter v. State, 959 N.E.2d 235, 237 (Ind.

       2012). Under the statute in effect when McPherson committed the crimes in

       this case, the habitual-offender enhancement was available when the State

       proved beyond a reasonable doubt that the defendant had been convicted of two

       prior unrelated felonies. Id.; see also Ind. Code Ann. § 35-50-2-8 (West 2012).

       In order to prove that McPherson was a habitual offender, the State alleged that

       the two prior unrelated felonies were his 1997 dealing-in-cocaine conviction in

       Case No. 20D02-9606-CF-55 and his 2008 criminal-recklessness conviction in

       Case No. 20D01-0701-FC-1. Appellant’s App. p. 509. McPherson claims that

       the State failed to meet its burden of proving that he was the one who was

       convicted of the 1997 and 2008 felonies because his first name is spelled

       “Jonathon” in the certified documents for the 1997 case but “Jonathan” in the

       certified documents for the 2008 case. Compare Ex. 201 (1997 documents) with

       Ex. 301 (2008 documents). McPherson also points out that one of the habitual-

       offender jury instructions incorrectly lists the Case No. of the 1997 case as

       ending in “51” when in fact it ends in “55.” See Appellant’s App. p. 222

       (Instruction No. 4).


[19]   Certified copies of judgments or commitments containing a defendant’s name

       or a similar name may be introduced to prove the commission of prior felonies.

       Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002). While there must be supporting

       evidence to identify the defendant as the person named in the documents, the

       evidence may be circumstantial. Id. If the evidence yields logical and


       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 12 of 15
       reasonable inferences from which the finder of fact may determine beyond a

       reasonable doubt that it was the defendant who was convicted of the prior

       felony, then a sufficient connection has been shown. Id.


[20]   Here, the evidence yields logical and reasonable inferences linking McPherson

       to the 1997 and 2008 felonies. First, McPherson admitted during his interview

       with Detective Freel that he had a prior felony conviction for dealing in cocaine

       and that as a result of that felony conviction, he could not possess a firearm.

       Tr. p. 493-94.6 The certified documents for McPherson’s 1997 dealing-in-

       cocaine conviction, State’s Exhibit 201, corroborate his admission that he was

       convicted of dealing in cocaine. These documents also list McPherson’s

       birthdate as April 21, 1975, and his middle initial as “G.” Ex. 201. Notably,

       the same birthdate and middle initial also appear in the certified documents for

       McPherson’s 2008 criminal-recklessness conviction, State’s Ex. 301. Although

       the captions of the certified documents in State’s Exhibit 201 appear to misspell

       McPherson’s first name with an “o” instead of an “a,” the plea agreement in

       State’s Exhibit 201 contains McPherson’s signature, which he signs

       “Jonathan.” State’s Ex. 201 (plea agreement filed April 28, 1997). The plea

       agreement in State’s Exhibit 301 also contains McPherson’s signature. See

       State’s Ex. 301 (plea agreement filed September 22, 2008). And although

       Instruction No. 4 erroneously lists the Case No. as ending in “51” when it




       6
        The trial court incorporated the evidence from the first two phases of trial into the habitual-offender phase.
       Tr. p. 533.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015              Page 13 of 15
       actually ends in “55,” the Case No. is correct in all of the certified documents

       contained in State’s Ex. 301. Moreover, another jury instruction, Instruction

       No. 1, includes a copy of the habitual-offender charging information, which

       correctly lists the Case No. as ending in “55.” Appellant’s App. p. 218-19.


[21]   Although the trial court acknowledged the “paucity of information with respect

       to [McPherson’s] identity,” Tr. p. 561, the court concluded that the evidence

       was sufficient to support the habitual-offender enhancement because

       McPherson’s “date of birth was stated on those documents, so his date of birth

       is not subject to dispute.”7 Id. at 561-62. The trial court also noted that the plea

       agreements in the 1997 and 2008 cases “were signed by the same person.” Id.

       at 562. We conclude that this evidence is sufficient to prove that the “Jonathan

       G. McPherson” in this case is the same person who was convicted of the 1997

       and 2008 felonies. See Lewis v. State, 769 N.E.2d 243, 246-47 (Ind. Ct. App.

       2002) (finding sufficient evidence to support habitual-offender enhancement

       where the defendant’s social-security number, weight, and height in the

       documents supporting the two prior unrelated felony convictions matched the

       defendant’s identifying information in the documents supporting the current

       conviction), aff’d on reh’g, 774 N.E.2d 91 (Ind. Ct. App. 2002), trans. denied; see

       also Tyson, 766 N.E.2d at 718 (finding sufficient evidence to support habitual-

       offender enhancement because “the name [of] the offender and other




       7
        During the sentencing hearing in this case, McPherson testified that his birthdate was April 21, 1975. Tr. p.
       567.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015            Page 14 of 15
       identifying information match the defendant.”). We therefore affirm

       McPherson’s habitual-offender enhancement.


[22]   Affirmed in part, reversed in part, and remanded.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1409-CR-428 | April 28, 2015   Page 15 of 15
