MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   Nov 20 2015, 7:36 am
this 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
Scott H. Duerring                                       Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana

                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Davon Crenshaw,                                         November 20, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1504-CR-122
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Terry C.
Appellee-Plaintiff                                      Shewmaker, Judge
                                                        Trial Court Cause No.
                                                        20C01-1311-FB-133



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015     Page 1 of 11
                                             Case Summary
[1]   Davon Crenshaw (“Crenshaw”) was convicted of Robbery,1 Burglary,2 and

      Conspiracy to Commit Burglary,3 as Class B felonies, and Criminal

      Confinement, as a Class C felony.4 On appeal, he challenges his conspiracy

      conviction and his aggregate fifty-three-year sentence. We affirm.



                                                      Issues
[2]   Crenshaw presents two issues for review:

                 I.           Whether he was subjected to double jeopardy upon
                              conviction of both Burglary and Conspiracy to Commit
                              Burglary; and


                 II.          Whether his sentence is inappropriate.


                                  Facts and Procedural History
[3]   During the early morning hours of November 4, 2013, five masked men entered

      the Goshen, Indiana home of Cynthia Contreras (“Contreras”), where she lived

      with her husband, children, and grandchildren. One of the men entered the




      1
        Ind. Code § 35-42-5-1. Indiana’s Criminal Code was substantially revised, effective July 1, 2014. At all
      times, we refer to the version of the criminal statutes in effect at the time of Crenshaw’s offenses.
      2
          I.C. § 35-43-2-1.
      3
          I.C. §§ 35-43-2-1, 35-41-5-2.
      4
          I.C. § 35-42-3-3.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015           Page 2 of 11
      bedroom shared by Contreras and her eighteen-year-old daughter Brenda

      Fernandez (“Fernandez”) and held a gun to Contreras’s head. A second man

      pointed a gun at Fernandez. Both women were forced to get up and kneel at

      the foot of the bed as the intruders demanded gold and “dope.” (Tr. at 82.)

      Contreras protested that they had neither.


[4]   In another bedroom, Thaly Silvestre (“Silvestre”) was awakened by two men

      shining flashlights in her bedroom. One of them aimed a gun at Silvestre’s

      head. Silvestre began to struggle, and the men bound her hands and feet with a

      telephone cord. Silvestre, who was seven months pregnant, was marched into

      the other bedroom and forced to kneel beside Contreras and Fernandez.


[5]   The men searched Contreras’s bedroom, but the search yielded no valuables,

      and one of the men ordered Contreras to get her purse. She moved into the

      living room to get the purse, and was permitted to shut the door of the room

      where the children were sleeping. Contreras handed one of the men $350.00 in

      cash, and told him that her income was from disability payments and hers was

      the “wrong house” for “dope.” (Tr. at 103.)


[6]   When she was in her living room, Contreras saw that a man was disconnecting

      her X-Box. The men also took games, movies, and a medication that had been

      prescribed for Contreras. Before the group left, one of them stood over the

      kneeling women and threatened to come back and kill them if they called the

      police.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 3 of 11
[7]   The frightened women did not immediately summon police. However, after

      some time had passed, Contreras called her husband at work and he convinced

      her to call police. Fernandez told the police officers that she had recognized the

      voice of one of the men. This prompted an investigation that led to the arrest of

      Crenshaw and four others. Some items belonging to Contreras, including her

      X-Box, were recovered at a residence where some of the group had been

      staying.


[8]   On February 2, 2015, Crenshaw and two co-defendants were brought to trial

      before a jury on Robbery, Burglary, Conspiracy, and Criminal Confinement

      charges, all as Class B felonies. The jury found Crenshaw guilty as charged.

      However, due to double jeopardy concerns, the trial court reduced the Criminal

      Confinement conviction from a Class B felony to a Class C felony. The trial

      court then imposed upon Crenshaw a fifteen-year sentence for each of the Class

      B felonies and an eight-year sentence for the Class C felony. All sentences were

      ordered to be served consecutively, providing for an aggregate sentence of fifty-

      three years. Crenshaw appeals.



                                Discussion and Decision
                                           Double Jeopardy
[9]   Crenshaw argues that his convictions for Burglary and Conspiracy to Commit

      Burglary arise from a single act and violate the double jeopardy provisions of

      the Indiana Constitution. The double jeopardy clause of the Indiana

      Constitution provides, “No person shall be put in jeopardy twice for the same
      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 4 of 11
       offense.” Ind. Const. art. 1, § 14. Our Indiana Supreme Court has held that

       two or more offenses are the “same offense” in violation of Indiana’s double

       jeopardy clause 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. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).


[10]   Aside from the constitutional actual evidence test, our Indiana Supreme Court

       has identified five common law or statutory double jeopardy categories: (1)

       conviction and punishment for a crime which is a lesser-included offense of

       another crime for which the defendant has been convicted and punished, (2)

       conviction and punishment for a crime which consists of the very same act as

       another crime for which the defendant has been convicted and punished, (3)

       conviction and punishment for a crime which consists of the very same act as

       an element of another crime for which the defendant has been convicted and

       punished, (4) conviction and punishment for an enhancement of a crime where

       the enhancement is imposed for the very same behavior or harm as another

       crime for which the defendant has been convicted and punished, and (5)

       conviction and punishment for the crime of conspiracy where the overt act that

       constitutes an element of the conspiracy charge is the very same act as another

       crime for which the defendant has been convicted and punished. Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002).


[11]   The fifth category is implicated here, and we look to whether the actual

       evidence to convict Crenshaw of burglary is distinct from the evidence of an

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 5 of 11
       overt act performed in furtherance of the conspiracy to commit burglary. See

       Coleman v. State, 952 N.E.2d 377, 382 (Ind. Ct. App. 2011 (recognizing that

       “double jeopardy rules preclude a conviction for conspiracy and the underlying

       offense only when the same evidence is used to prove both the overt act

       committed in furtherance of the conspiracy and the commission of the

       underlying crime.”)


[12]   A person who breaks and enters the building or structure of another person,

       with intent to commit a felony or theft in it, commits burglary. I.C. § 35-43-2-1.

       Conspiracy to commit a felony consists of three elements that the State must

       prove beyond a reasonable doubt: intent to commit a felony, agreement with

       another to commit a felony, and an overt act performed by either. I.C. § 35-41-

       5-2; Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014). It is not necessary that the

       State present direct evidence of a formal express agreement. Id. “The

       agreement as well as the requisite guilty knowledge and intent may be inferred

       from circumstantial evidence alone, including overt acts of the parties in

       pursuance of the criminal act.” Id. An accomplice has the same criminal

       liability as the principal. Coleman, 952 N.E.2d at 382.


[13]   The State alleged in Count II that Crenshaw committed Burglary when he “did

       break and enter the dwelling of Fernandez, with intent to commit a felony

       therein[.]” (App. at 126.) Count IV alleged that Crenshaw committed

       Conspiracy to Commit Burglary when he agreed with other persons to commit

       Burglary and committed an overt act in furtherance of that conspiracy,

       specifically, masking his face. (App. at 126.)

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 6 of 11
[14]   The State presented testimony that, the evening before Contreras’s home was

       burglarized, Crenshaw was present at the apartment of Bree Bonse (“Bonse”)

       when Armando Gonzalez stated that he needed money and “had a lick.” (Tr.

       at 561.) Crenshaw responded that he “wasn’t going” but that the group “could

       take” Matthew Allen (“Allen”) and Montrail Williams. (Tr. at 562.) Some of

       the young men, including Crenshaw, were “passing around” guns. (Tr. at 571.)

       Crenshaw left, but returned to the apartment during the early morning hours of

       the next day. According to Allen’s trial testimony, and the guilty plea hearing

       testimony of Antoine McDuffie (“McDuffie”) (offered as an evidentiary exhibit

       at Crenshaw’s trial), Crenshaw then participated in the burglary of Contreras’s

       home. Some members of the group returned to Bonse’s apartment with an X-

       Box that had a serial number matching that sold by a local store to Contreras.

       As for the overt act alleged – putting on a mask – Allen testified that he had

       been accompanied by Crenshaw and that Crenshaw and the others were

       masked. Contreras testified that she saw five men inside her home and all were

       masked.


[15]   Crenshaw’s commission of burglary is established by testimony from McDuffie,

       Allen, and a police officer to whom Crenshaw confessed that he had been the

       driver. His conspiracy conviction rests upon evidence of an agreement and the

       overt act in furtherance of that agreement, donning a mask. The State need not

       have shown that Crenshaw wore a mask to prove that he committed burglary.

       The separate convictions rest upon independent facts. Crenshaw has

       established no double jeopardy violation.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 7 of 11
                                                   Sentence
[16]   Upon conviction of a Class B felony, Crenshaw faced a sentencing range of

       between six and twenty years, with ten years as the advisory term. I.C. § 35-50-

       2-5. Upon conviction of a Class C felony, he faced a sentencing range of

       between two and eight years, with four years as the advisory term. I.C. § 35-50-

       2-6. Crenshaw received sentences of five years above the advisory for each of

       his Class B felony convictions. He received a maximum sentence for his Class

       C felony conviction.


[17]   In imposing this sentence, the trial court found the following circumstances to

       be aggravating: Crenshaw’s juvenile history; his prior commission of a felony;

       his violation of probation; his high risk to re-offend; and the facts that there

       were multiple victims, one victim was pregnant, and several children were in

       the home. Crenshaw’s young age (21) was found to be a mitigating

       circumstance.


[18]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which provides: “The Court may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, the Court finds that the sentence is inappropriate in light of the nature

       of the offense and the character of the offender.” In performing our review, we

       assess “the culpability of the defendant, the severity of the crime, the damage

       done to others, and myriad other factors that come to light in a given case.”


       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 8 of 11
       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such

       review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must

       persuade the appellate court that his or her sentence has met th[e]

       inappropriateness standard of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494

       (Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).


[19]   As to the nature of Crenshaw’s offenses, he and his accomplices discussed a

       need for cash and three potential target residences, passed guns around, formed

       a plan, and obtained a vehicle. The five men, three of whom were armed with

       handguns, broke into a residence to demand gold and cash. They had donned

       masks to conceal their identities. Contreras’s husband had just left for work, so

       the women and children were alone and vulnerable. The three women – one

       disabled, one seven months pregnant, and one only eighteen years old – were

       forced at gunpoint to leave their beds and kneel on the floor. Contreras was

       forced to hand over $350.00, her income from disability payments. The

       pregnant victim was tied up with telephone cord. All the women were

       threatened that the burglars knew their location and family members and would

       return and kill them if they called the police. There were several children in the

       residence when the women were robbed and terrorized. These facts do not

       militate toward a more lenient sentence.


[20]   As for his character, Crenshaw had been adjudicated delinquent on six

       occasions. At age sixteen, he had been tried as an adult and convicted of

       Aggravated Battery, a Class B felony. He was on probation at the time of the



       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 9 of 11
       instant offenses. His history indicates an inability to benefit from rehabilitative

       efforts short of incarceration.


[21]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.



                                              Conclusion
[22]   Crenshaw’s convictions for Burglary and Conspiracy to Commit Burglary do

       not violate double jeopardy principles. Crenshaw has not shown that his

       aggregate sentence of fifty-three years is inappropriate.


[23]   Affirmed.


       Mathias, J., concurs.


       Baker, J., concurs with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 10 of 11
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Davon Crenshaw,                                         Court of Appeals Case No.
       Appellant-Defendant,                                    20A03-1504-CR-122

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Baker, Judge, concurring.

[24]   I fully concur with the majority opinion. I write separately to note that I

       question whether the act of donning a mask amounts to an overt act required to

       sustain a conspiracy conviction. This issue, however, relates to the sufficiency

       of the evidence supporting the conviction, and Crenshaw did not raise a

       sufficiency argument on appeal. I agree with the majority that there is neither a

       double jeopardy nor a sentencing error and that the trial court should be

       affirmed on the issues raised by Crenshaw.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-122 | November 20, 2015   Page 11 of 11
