MEMORANDUM DECISION                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Apr 30 2018, 5:43 am

this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
                                                                              and Tax Court
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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert A. Peterson, Jr.,                                 April 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         16A01-1706-CR-1334
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Gary L. Smith,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         16D01-1701-F4-69



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018            Page 1 of 31
[1]   Robert A. Peterson, Jr., appeals his convictions for possession of a firearm by a

      serious violent felon, a level 4 felony, criminal recklessness as a level 6 felony,

      and the enhancement of his sentence pursuant to an adjudication that he is an

      habitual offender. He raises three issues which we revise and restate as:


          I.      Whether the trial court abused its discretion in admitting evidence of
                  certain jail telephone coversations;

          II.     Whether the evidence is sufficient to sustain his convictions; and

          III.    Whether the trial court erred in imposing an enhancement of
                  Peterson’s sentence based upon his habitual offender status.

      We affirm in part and remand.


                                      Facts and Procedural History

[2]   On January 26, 2017, Andrew Chauncy, who lived at Vista Village and worked

      in maintenance and the management office, heard an argument between

      Dwayne Bradley and Peterson’s mother, Geneva Peterson, next door to the

      office in the trailer owned by Bradley on Lot 1. The “next thing that sort of

      distracted [Chauncy] from getting [his] work done” was somebody “getting

      loud outside,” and Chauncy looked out the window to see a PT Cruiser owned

      by Mitchell Sherman-Russell. Transcript Volume 2 at 152. He left the office

      and heard Peterson and his wife, Jamie Peterson, arrive at Vista Village in

      Peterson’s truck, park by the mailboxes in front of the office, step out of the

      truck, and walk the short distance to the trailer on Lot 1. Because he was a

      mechanic and could “fix anything,” Peterson had “done all kinds of work” to

      his truck. Id. at 155. The truck was distinctive: an “early 2000’s” gunmetal

      grey “big Ford, four-wheel drive,” with like “Lamborghini doors on one side . .
      Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 2 of 31
      . , a hood scoop,” and “[f]lames on the fender well, the hood scoop” that were

      “like an airbrush, a light whiter color.” Id. at 155-156.


[3]   When Peterson came back out of the trailer, Chauncy observed he was upset

      judging by the pace with which he walked and the expression on his face.

      Peterson slammed the door on the truck before returning to Lot 1, then went

      back to the truck. He and Jamie then drove to his trailer at Lot 85. Chauncy

      next observed that the “truck fired up while I was still in the doorway, and it

      came around the trailer court from – like, it would have left his place and went

      all the way around, which didn’t make a bit of sense to do,” before ending up

      back in front of the office. Id. at 160. Peterson walked over to Geneva’s trailer,

      and Chauncy could hear them talking on the porch but could not see Peterson.


[4]   Sometime after Geneva and Bradley argued, Sherman-Russell asked Bradley to

      join him and his girlfriend, Linda Dunn, to take a ride in his PT Cruiser to a

      nearby store so “he could cool down, and, you know, keep himself out of

      trouble pretty much.” Transcript Volume 3 at 83. At the store, Bradley exited

      the vehicle and Peterson and Joel Hersley arrived, with Peterson yelling and

      Hersley talking. Sherman-Russell sat in the car and, when he saw both

      Peterson and Hersley “yelling at [Bradley],” exited to make sure “nothing bad

      was going to happen.” Id. at 86. Sherman-Russell told Peterson, “[y]ou guys

      ain’t going to jump him,” Peterson told Sherman-Russell, “if I hit this N-----,

      you better jump in with me,” and Sherman-Russell responded “no.” Id. at 91-

      92. Bradley and Sherman-Russell returned to the vehicle, left the store, and

      parked in front of the Vista Village office. Peterson and Hersley had already

      Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 3 of 31
      arrived in Peterson’s truck and Hersley was “in [Sherman-Russell’s] face

      wanting to fight [him]” right behind the PT Cruiser. Id. at 60. Dunn exited the

      vehicle at some point, tried to hit Hersley with a ratchet, threw the ratchet at

      him, and entered the vehicle before hearing a “boom” that sounded “like a

      shot” to her. Id. at 62-63. After the gunshot, Sherman-Russell and Dunn left.


[5]   Another Vista Village resident, Julia Garcia, heard arguing from Lot 4 for

      approximately five minutes, followed by a “pop noise” that was “kind of loud”

      and “[n]ot too close, not too far away.” Transcript Volume 2 at 133. Believing

      the noise to be a gunshot, she tried to peer out the window at some point, could

      not see anything, and then opened the door. She saw Peterson’s truck, with its

      painted white flames, which was facing toward the Vista Village Mobile Home

      Park entrance and management office, move backwards at about twenty or

      thirty miles per hour with the windows up. Garcia waited approximately five

      minutes after hearing the gunshot to call 911.


[6]   Chauncy also called 911 and reported the gunshot. Within two and one-half

      minutes from receiving a dispatch, Officer Devin Moore arrived first at the

      scene. Officer John Albert was also dispatched and arrived at Lot 85, where he

      observed a gray and black Ford F-150, with “some extra kind of sloppy spray

      paint marks on it” and “some white decals, flames.” Id. at 218. Greensburg

      Police Captain Mike McNealy spoke with Chauncy after arriving at the

      management office. After gathering information from others officers that led

      him to believe the shooter was at Lot 85 and obtaining a search warrant,

      Captain McNealy and Officer Albert searched the trailer and retrieved two

      Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 4 of 31
      weapons.1 A Ford Taurus with a hole in the headlight and a 12-gauge casing

      were also both found at the scene.


[7]   On January 27, 2017, the State charged Peterson with Count I, possession of a

      firearm by a serious violent felon, a level 4 felony; Count II, criminal

      recklessness as a level 6 felony; and Count III, criminal mischief as a class A

      misdemeanor. On February 24, 2017, the State filed a motion to amend the

      charging information and add an habitual offender sentencing enhancement as

      to Counts I and II. The attached habitual offender sentencing enhancement

      charging information states that Peterson “was a habitual offender as defined by

      Indiana Code 35-50-2-8,” in that he had accumulated three prior unrelated

      felony convictions: dealing in methamphetamine in cause number 16D01-1203-

      FA-207 (“Cause No. 207”) for which he was convicted and sentenced on or

      about July 23, 2013; residential entry, a class D felony, in cause number 16D01-

      1011-FC-483 (“Cause No. 483”) for which he was convicted and sentenced on

      or about March 10, 2011; and theft as a class D felony in cause number 16C01-

      0211-FD-205 (“Cause No. 205”) for which he was convicted and sentenced on

      or about April 1, 2009. Appellant’s Appendix Volume 2 at 28. On March 2,

      2017, the State filed a second motion to amend charging information, which

      states in part that “[an] Habitual Offender sentencing enhancement which




      1
        At trial during direct examination, Captain McNealy was asked if he was able to retrieve “items of
      evidentiary value of out [sic] the trailer” and what they were, he responded “[t]wo firearms,” Peterson’s
      counsel objected and moved to strike the word “firearm,” and the prosecutor asked Captain McNealy to use
      a less technical term, to which he responded, “[w]eapons.” Transcript Volume 4 at 78.

      Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018         Page 5 of 31
      would apply to any felony count is added” and which substituted a conviction

      of domestic battery as a Class D felony on or about October 13, 2011, in cause

      number 16D01-1110-FD-628 (“Cause No. 628”) for the conviction for dealing

      in methamphetamine in Cause No. 207. Id. at 31. On March 20, 2017, the

      court held a hearing on the motions to amend charging information. 2


[8]   On April 6, 2017, Peterson and the State filed two separate stipulations to

      evidence, and the trial court signed both. The first stipulation states that

      Peterson admits that he was “convicted of and sentenced for Dealing in

      Methamphetamine as a Class B felony on July 23, 2013 in the Decatur Superior

      Court in [Cause No. 207], for an offense committed on or about March 21,

      2012,” that Peterson admits and agrees that “this conviction makes him a

      serious violent felon under Indiana Code 35-47-4-5,” that the parties agree that

      this stipulation by itself allows the jury to find that the State has proven the

      stipulated facts beyond a reasonable doubt, and that the stipulation was

      executed in two parts with a second, modified version for introduction into

      evidence and examination by the jury. Appellant’s Appendix Volume 3 at 9.


[9]   That same day, Peterson filed his “Motion in Limine Concerning Alleged

      Threats Against Witnesses,” which states that “[o]n or about April 03, 2017,

      [Peterson’s counsel] received from the State audio recordings of select




      2
        A chronological case summary entry dated March 20, 2017, states in part that the “State appears by
      [counsel], [Peterson] appears in custody and with counsel . . . and is advised on the amended charging
      information. Not guilty plea and denial entered.” Appellant’s Appendix Volume 2 at 4.

      Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018            Page 6 of 31
       telephone calls allegedly made by [Peterson] from the jail to family members as

       part of its response to discovery” and that Peterson’s counsel believed that “the

       prosecution may intend to introduce as evidence that the complaining witnesses

       in this cause have been threatened or improperly persuaded in an attempt to

       preclude them from testifying in this matter.” Id. at 13.


[10]   On April 12, 2017, the trial court held its final pretrial conference, and the State

       examined William Meyerrose, an investigator for the Decatur County

       Prosecutor’s office, about the recordings of the phone calls discussed by

       Peterson’s motion in limine. Meyerrose testified that Peterson called Geneva,

       Jamie, Joey Barnard, and Peterson’s father from the Decatur County Jail, and

       that he was able to identify in particular Geneva and Jamie by voice. He

       testified there was a witness in this case by the initials of A.C. with the name of

       Andrew Chauncy. He testified that Peterson made numerous statements over

       various calls on different days including:


           • On March 20, “I want to pull A.C. in for a deposition,” “I’m hoping his
             story changes. Do you realize what I just said?”, “[Chauncy] needs to
             know what changes he’s got to change,” and “[t]ell Jamie to answer the
             phone; I’ve got to get the plan out to her, and tell A.C. what I said”;

           • On March 23, “[m]ake it a point to go find [Chauncy] and see where he
             stands. Let him know he hasn’t been exposed, but if he lies any further,
             he’s going to be exposed,” and “my biggest concern right now is
             [Chauncy] . . . Have [Bradley] get ahold of [Chauncy] and see where he
             stands”;

           • On March 24, “[t]hey must have questioned [Chauncy],” “I’ve got
             connections all over the country,” “I can have [Chauncy] touched over in

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 7 of 31
               West Palm Beach,” “[t]he next time the m-----f-----s want to go on a
               vacation, the m-----f----n’ boat is going to run out of gas,” “[i]f they want
               to get across the water, I’ll go to Mexico with them,” “I know people, m-
               ----f-----s; I’ve been doing this s--- for 16 years plus the people on my
               payroll work under them,” “[w]e’re getting a lot of exposure right now
               and [Jamie] needs to get across the water herself,” “I need [Jamie] to get
               the f--- down for the next 35 days, you know what I mean,” and “[t]ell
               [Chauncy] about that m-----f----n’ – what I just discussed with you”; on
               March 25, “I just wanted to know where our man [Chauncy] stood, if he
               was with me or against me”; and

           • On March 26, “[i]t’s not like I said ‘Send Pauley (phonetic) over there,
             too, if he doesn’t change his story.’”

       Transcript Volume 2 at 73-77, 81-82. After hearing Meyerrose’s testimony and

       counsels’ arguments, the court denied Peterson’s motion in limine.


[11]   Peterson was tried by jury on April 25-27, 2017. On the first day of trial,

       Chauncy testified that Peterson was “upset by something and had left two or

       three times,” that he watched Peterson leave in the truck and travel back and

       forth down to his place, and that he was confident Peterson drove the truck

       during those times. Id. at 169. In response to being asked whether Peterson’s

       truck was a Ford F-150, Chauncy stated “[f]our-wheel drive.” Id. at 155. He

       answered affirmatively when asked if he “actually identified [Peterson] as the

       driver.” Id. at 170. Chauncy also testified that he heard the glass on Bradley’s

       car door break, looked around, and saw Peterson standing with a paving stone

       in his hand talking to Geneva. He testified that Peterson dropped the stone in

       the yard, said something to Geneva, and “walked over to [the] truck and took

       off.” Id. at 162.


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 8 of 31
[12]   The court admitted a DVD of the Vista Village surveillance video footage as

       State’s Exhibit 2A and the State played the footage as Chauncy testified to “the

       events and the players as the events unfold[ed].” Id. at 176. When asked

       whether the “driver’s side door of the truck [in the footage] was operational,”

       Chauncy stated “[t]hat’s the one that [Peterson] had modified . . . it opens like

       on a Lamborghini” and that it was “hard to close” such that “[i]f you open it,

       you have to close it a particular way.” Id. at 181. The prosecutor paused the

       tape some time after Chauncy testified that Peterson exited the truck and

       worked to secure his headlight and that Sherman-Russell and Hersley were later

       engaged in fighting and yelling at each other.


[13]   On April 26, 2017, Peterson filed a second motion in limine to exclude the

       audio of the telephone calls and their transcripts, asserting that “[o]n or about

       April 21, 2017, counsel for [Peterson] received sixteen (16) c.d.s with

       accompanying uncertified ‘transcripts’ of portions of select telephone calls, most

       of which were not addressed at the hearing on [Peterson’s] Motion in Limine”

       on April 12, 2017, and renewing his objections under the Fifth, Sixth, and

       Fourteenth Amendments of the U.S. Constitution and under Sections 12 and 13

       of Article 1 of the Indiana Constitution. Appellant’s Appendix Volume 3 at 38-

       39. Bradley testified at the second day of trial that he purchased a Ford Taurus

       that was parked on July 26, 2017, outside his trailer. Sherman-Russell testified

       that Peterson’s truck pulled “[r]ight in front of [Bradley’s] car.” Transcript

       Volume 3 at 98. The State also presented testimony on the same day from

       Officer Albert, Dunn, and Jamie.


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 9 of 31
[14]   On April 27, 2017, the court heard counsels’ arguments regarding the motion in

       limine, admitted a portion of the March 20th phone call between Peterson and

       Geneva upon an offer by the State to include in the audio clip Peterson’s

       statement of “I wish [Jamie] had a place to live, man. I wish she had a place to

       stay till I got home on the 24th” and to strike any reference to a plea agreement

       by him. The court excluded the audio of a March 23rd phone call because

       Peterson had previously stipulated to owning the mobile home on Lot 85. Id. at

       202.


[15]   Also on the third day of trial, Captain McNealy testified that he knew Peterson

       for some length of time predating the incidents in the case and that he spoke

       with Chauncy who showed him video footage of the incident. After publishing

       its Exhibit 2A, the State played the video footage and Captain McNealy

       testified that he recognized the truck in the middle of the screen as having been

       the suspect vehicle in the shots fired call, that the footage occurred “just outside

       of the manager’s office of Vista Village,” and that, in relation to the footage

       shot, Lot 1 was “[i]f you walk through this yard here up to the east, . . . about in

       this area.” Transcript Volume 4 at 101-102. In response to the question of

       whether he could “tell, at this moment, whether there is somebody” in the

       truck, Captain McNealy responded, “I can see that the [truck’s] running based

       on the exhaust here from time to time, you can see little periods of movement,”

       and when asked if the conduct of any of the people in the video led him to

       believe that there was somebody in the driver’s seat, he answered affirmatively.

       Id. at 103. He also testified that Peterson was the person who exited from the


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 10 of 31
passenger door and the person who opened the door of the truck at the 18:34:14

time signature; that Peterson appeared to move across the passenger seat into

the driver’s seat and that the truck appeared to be “now moving”; that he

noticed in the course of his investigation that, consistent with entering and

exiting the truck’s passenger side, the driver’s door of the truck was hard to

open and close; and that the actions regarding the shots fired began at the

footage’s end. Id. at 107. When asked what he was able to see in the last

portion of the video, Captain McNealy testified that he observed “Peterson’s

truck enter from the east,” “[a]s the truck comes into scene, you can see an

object sticking out of the driver side window of the truck that is – appears to be

a shotgun barrel,” and “[y]ou can see the barrel come up to plane.” Id. at 114.

When asked what he meant by that, he testified that he had meant “come up

level” and stated that, consistent with his experience, “[y]ou can then see the

person holding it react in a manner in which someone who shot a shotgun

would, in the fact that a shotgun has a pretty hefty kickback.” Id. at 115. He

also testified that “as that occurs, both [Jamie] and [Hersley] duck,” that “the

driver who is holding the gun attempt[s] to – through experience, attempt[s] to

cycle the action of a pumped-style shotgun, in which . . . the left hand or right

hand, whichever one is not around the barrel, comes back and forward ejecting

a round and placing another one in the chamber,” that “the barrel of the gun . .

. raise[s] up . . . cross[es] the plane,” and that there is “movement up and then

back, and [the gun] comes to level again” and “a second kick . . . of the

shotgun, and then the gun appears to be pulled back in, and then the truck

reverses away.” Id. at 115.
Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 11 of 31
[16]   Captain McNealy testified additionally that State’s Exhibit 7 was a

       semiautomatic shotgun model Saiga-12 manufactured by Ishmash out of Russia

       based off a Kalashnikov design, and that State’s Exhibit 8 was a Kalashnikov-

       style rifle model WASR-10-53 manufactured by “Roman Cugir (phoenetic),”

       out of Romania. Id. at 85. He testified the first was designed to expel a

       projectile by means of an explosion and the second was designed to be a

       firearm, and he explained how each was designed to function. With respect to

       State’s Exhibit 7, Captain McNealy testified that some of the pieces appeared

       broken or were missing, that the pieces were readily available in the

       marketplace, and that he was sure someone with the skills to do gunsmithing

       could render the weapon capable of doing what it was designed to do. With

       respect to State’s Exhibit 8, he testified that it was missing the stock in the

       forend, the bolt, and some springs, which were pieces available in the private

       market, and that someone with a lot of firearm knowledge or mechanical

       knowledge could render it operable to do what it was designed to do. The court

       admitted State’s Exhibits 7 and 8 into evidence without objection.


       The State introduced and the court admitted a series of discs containing audio

       clips of Peterson’s March phone calls from the Decatur County Jail as State’s

       Exhibits 10A-D, 11A-B, 12A-D, 13, 14, and 15A. Meyerrose testified that he

       had known Peterson and Geneva for “probably 20 years” and was familiar with

       their voices. Id. at 151. He also testified that Peterson was a speaker in all of

       the phone calls, that Geneva spoke in all the phone calls except for those in

       State’s Exhibits 10A, 13, and 14, and that an unidentified female spoke in the


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 12 of 31
       phone call in State’s Exhibit 13. The State then played the exhibits in series.

       On State’s Exhibit 11B, Peterson can be heard stating, “my biggest concern

       right now is A.C.” and “[h]ave [Bradley] get ahold of A.C. and see where he

       stands . . . Let him know right now your f------ little, your conspiracy secrets

       [sic] safe with me. . . right now . . . but you’re going to be exposed.” State’s

       Exhibit 11B at 0:01-0:04, 0:55-1:17. On State’s Exhibit 15A, Peterson can be

       heard stating:


               Talk to my minister, my ordained minister, . . . you don’t know
               who married me and my wife? Well, ask my wife and tell her to
               get ahold of my minister, then tell him . . . what he’s been up to
               and see if he’ll come see me and tell him I’ve been having some
               catholic problems . . . and make sure he’s on the same page as I
               am.


       State’s Exhibit 15A at 0:01-0:35.


[17]   The trial court read aloud to the jury, and provided copies during deliberations

       of the parties’ stipulation that Peterson admitted he was convicted of and

       sentenced for a felony on July 23, 2013 in the Decatur Superior Court in cause

       16D01-1203-FA-207, for an offense committed on or about March 21, 2012.

       State’s Exhibit 29.


[18]   The jury found Peterson guilty of Count I, possession of a firearm by a serious

       violent felon, a level 4 felony; and Count II, criminal recklessness as a level 6

       felony. During the habitual offender phase, the State presented evidence of

       Peterson’s previous convictions for theft as a class D felony in Cause No. 205,

       residential entry, a Class D felony, in Cause No. 483, and domestic battery as a
       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 13 of 31
Class D felony in Cause No. 628, and the court determined that Peterson was

an habitual offender. The court stated:


        In reference to the habitual offender sentencing enhancement, it
        is in two parts; one alleges two are convictions. The second
        alleges three prior convictions. The [c]ourt believes the evidence
        that has been introduced does, in fact, support a conviction –
        that’s not the proper term, an habitual offender – a habitual – a
        offender sentencing enhancement in reference to both of the
        requested enhancements by the State. So the [c]ourt does impose
        – has entered that finding on both cases – both requests for
        enhancement.

        As [the prosecutor] has agreed to, those would, in fact, merge.
        So the [c]ourt will enter a finding on both of these in order they
        be merged.

        So the record is also clear, and, [addressing the prosecutor], if
        you believe differently, and, [addressing defense counsel], as
        well, it’s my belief this enhancement, not only do they merge
        with each other, but they could be enhanced for – Count I and
        Count II could each be enhanced. Count I could be enhanced as
        the level felony it is, and Count II could be enhanced as the level
        felony it is, and those would also be merged as, again, because
        we cannot double habitualize somebody.

                                              *****

        So the Court will find that both of the requested enhancements
        are supported by the evidence and enter that enhancement
        finding in reference to each request the prosecutor has made and
        in reference to Counts I and II, but they will all be merged for
        sentencing purposes.


Transcript Volume 5 at 14-15.



Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 14 of 31
[19]   When the court asked if Peterson had an objection to “agreeing for these

       purposes that Counts I and II for sentencing purposes should be merged,” his

       counsel answered negatively and stated “I would have argued that it’s

       appropriate for them to be concurrent.” Id. at 27. The court sentenced

       Peterson to the Department of Correction for “10,080 days . . . (4,320 days

       enhanced by 5,760 days for [Peterson] being a habitual offender)” on Count I

       and to “3,060 days . . . (900 days enhanced by 2,160 days for [Peterson] being a

       habitual offender)” on Count II. Appellant’s Appendix Volume 3 at 115. The

       judgment of conviction and sentencing order states that the sentences for each

       count are to be “merged with each other and served concurrently, and shall run

       consecutively to the sentence imposed in [Cause No. 207].” Id.


                                                    Discussion

                                                          I.

[20]   The first issue is whether the trial court abused its discretion in admitting

       evidence of jail telephone coversations. Peterson argues that the calls are

       irrelevant and highly prejudicial and that their erroneous admission is not

       harmless. Regarding relevancy, he specifically contends that his case “presents

       a tenuous connection by implying that his conversations with his mother were

       intended to influence witness testimony,” asserting that the discussions were

       vague and included various topics and that the State’s implications – that the

       conversations were meant to influence witnesses and that Peterson needed to

       influence witness testimony to hide illegal activity – required it to engage in

       tenuous speculation. Appellant’s Brief at 32. He asserts that the prejudicial

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 15 of 31
       nature of the phone call evidence is clear, that the State’s implication that he

       tried to influence witness testimony to cover up his criminal actions implicates a

       high degree of prejudice which adversely impacts a trial, and that the court

       erred in allowing the admission given its high prejudicial impact and low

       probative value. He also contends the State’s implication that he tried to

       influence the witnesses greatly impacted the jury given the lack of other credible

       evidence and asserts that the error cannot be deemed harmless. Seeking to

       avoid procedural default and to “countermand any suggestions of waiver,”

       Peterson contends that he objected properly and that the error must be

       construed as fundamental and the reversal be granted given the lack of direct

       evidence. Id. at 36.


[21]   The State argues that the phone call recordings were relevant and probative of

       Peterson’s consciousness of guilt. Specifically, it points out as relevant that

       during the calls Peterson repeatedly directs his mother to contact and persuade

       potential witnesses, primarily Chauncy, to offer testimony favorable to his

       defense, and that the calls are therefore relevant and probative of Peterson’s

       consciousness of guilt. The State also asserts that even if there had been any

       error, it would have been harmless as the record supports that this evidence had

       no impact on the jury’s determination of guilt or on Peterson’s sentence.


[22]   The trial court has broad discretion to rule on the admissibility of evidence.

       Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). We review its rulings for abuse

       of discretion and reverse only when admission is clearly against the logic and

       effect of the facts and circumstances and the error affects a party’s substantial

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 16 of 31
       rights. Id. We do not reweigh the evidence; rather, “we consider only evidence

       that is either favorable to the ruling or unrefuted and favorable to the

       defendant.” Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016) (quoting Pierce v.

       State, 29 N.E.3d 1258, 1264 (Ind. 2015)). However, we will not reverse an error

       in the admission of evidence if the error was harmless. Turner v. State, 953

       N.E.2d 1039, 1058 (Ind. 2011). Generally, errors in the admission of evidence

       are to be disregarded unless they affect the substantial rights of a party. Id. at

       1059. In determining the effect of the evidentiary ruling on a defendant’s

       substantial rights, we look to the probable effect on the fact finder. Id. The

       improper admission is harmless error if the conviction is supported by

       substantial independent evidence of guilt satisfying the reviewing court that

       there is no substantial likelihood the challenged evidence contributed to the

       conviction. Id.


[23]   Ind. Evidence Rule 401 provides that evidence is relevant if “it has any

       tendency to make a fact more or less probable than it would be without the

       evidence; and the fact is of consequence in determining the action.” See

       Robinson v. State, 720 N.E.2d 1269, 1271-1272 (Ind. Ct. App. 1999) (quoting

       Ind. Evidence Rule 401). Put simply, relevant evidence is probative evidence.

       Shane v. State, 716 N.E.2d 391, 398 (Ind. 1999).


[24]   Ind. Evidence Rule 402 provides that “[i]rrelevant evidence is not admissible.”

       Ind. Evidence Rule 403 permits the court to “exclude relevant evidence if its

       probative value is substantially outweighed by a danger of one or more of the

       following: unfair prejudice, confusing the issues, misleading the jury, undue

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 17 of 31
       delay, or needlessly presenting cumulative evidence.” Ind. Evidence Rule

       404(b) provides in part:


               Evidence of a crime, wrongs, or other act is not admissible to
               prove a person’s character in order to show that on a particular
               occasion the person acted in accordance with the character. . . .
               This evidence may be admissible for another purpose, such as
               proving motive, opportunity, intent, preparation, plan,
               knowledge, identity, absence of mistake, or lack of accident.


       In assessing the admissibility of evidence under Ind. Evidence Rule 404(b), the

       trial court must: (1) determine whether the evidence of other crimes, wrongs, or

       acts is relevant to a matter at issue other than the defendant’s propensity to

       commit the charged act; and (2) balance the probative value of the evidence

       against its prejudicial effect pursuant to Ind. Evidence Rule 403. See Kyle, 54

       N.E.3d at 444 (citing Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App.

       2004)). A trial court’s evidentiary rulings are presumptively correct, and the

       “defendant bears the burden on appeal of persuading us that the court erred in

       weighing prejudice and probative value under Evid. R. 403.” Anderson v. State,

       681 N.E.2d 703, 706 (Ind. 1997). The determination of whether there is a risk

       of unfair prejudice depends on “the capacity of the evidence to persuade by

       illegitimate means, or the tendency of the evidence to suggest decision on an

       improper basis.” Camm v. State, 908 N.E.2d 215, 224 (Ind. 2009) (quoting

       Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999)).


[25]   Evidence of consciousness of guilt has historically been admissible as relevant

       evidence. Bennett v. State, 787 N.E.2d 938, 946 (Ind. Ct. App. 2003), trans.

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 18 of 31
       denied; Robinson, 720 N.E.2d at 1272 (citing Serano v. State, 555 N.E.2d 487

       (Ind. Ct. App. 1990) (holding that false information defendant provided to law

       enforcement was admissible to show consciousness of guilt), trans. denied;

       Washington v. State, 273 Ind. 156, 402 N.E.2d 1244 (1980) (holding that

       defendant’s attempt to conceal incriminating evidence was admissible to show

       consciousness of guilt); McKinstry v. State, 660 N.E.2d 1052 (Ind. Ct. App.

       1996) (holding that defendant’s false alibi was admissible to show

       consciousness of guilt); Jorgensen v. State, 567 N.E.2d 113 (Ind. Ct. App. 1991)

       (holding that defendant’s escape from custody was admissible to show

       consciousness of guilt), adopted in part by 574 N.E.2d 915 (Ind. 1991)).


[26]   The record reveals that Peterson’s March phone calls from the Decatur County

       Jail, admitted as State’s Exhibits 10A-D, 11A-B, 12A-D, 13, 14, and 15A,

       included statements made by Peterson such as “I want to pull [Chauncy] in for

       a deposition. I’m hoping his story changes. Do you realize what I just said,”

       “[Chauncy] needs to know what changes he’s got to change,” “[m]ake it a point

       to go find [Chauncy] and see where he stands. Let him know he hasn’t been

       exposed, but if he lies any further, he’s going to be exposed,” “[t]ell [Chauncy]

       about that m-----f----n’ – what I just discussed with you,” and “my biggest

       concern right now is [Chauncy] . . . Have [Bradley] get ahold of [Chauncy] and

       see where he stands.” As shown here and elsewhere in the record, Peterson’s

       pre-trial calls involved his concern about Chauncy, a witness who called to

       report the gunshot, who spoke with officers, and who could – and eventually

       did – testify to hearing the argument between Bradley and Geneva, to


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 19 of 31
       witnessing Peterson’s actions when he initially arrived upset at Vista Village in

       his distinctive-appearing truck, drove around “which didn’t make a bit of sense

       to do,” and walked over to Geneva’s trailer to speak with her. Transcript

       Volume 2 at 160. At a minimum, we cannot say that Peterson’s statements

       about Chauncy and the concern posed by him are irrelevant or not probative

       evidence of his consciousness of guilt. See Robinson, 720 N.E.2d at 1271-1272.


[27]   Further, we have previously noted that evidence of a defendant’s attempts to

       “cover up” his offense are probative of guilt. Kyle, 54 N.E.3d at 444 (citing

       Scifres-Martin v. State, 635 N.E.2d 218, 220 (Ind. Ct. App. 1994) (“The

       manufacture, destruction, or suppression of evidence may be properly

       considered by the jury as an admission of the defendant’s guilt or his guilty

       knowledge.”)). To the extent that the statements in the calls express Peterson’s

       hope that Chauncy’s “story changes” and declaration that, if Chauncy “lies any

       further,” he is “going to be exposed,” the evidence links Peterson to an

       attempted cover up and is highly probative. See Kyle, 54 N.E.3d at 445 (holding

       that the defendant’s calls were highly probative evidence of his attempts to

       tamper with a child witness’s testimony). Based upon the record, we conclude

       that the probative nature of the evidence outweigh its risk of unfair prejudice

       and we cannot say that the trial court abused its discretion in admitting the

       phone calls into evidence.


[28]   Moreover, even if the court abused its discretion when it admitted the phone

       calls – even those not involving Peterson’s statements about Chauncy – we find

       that any alleged error is harmless. The jury heard three days of the State’s

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 20 of 31
       evidence including the testimony of Geneva, Bradley, Jamie, Sherman-Russell,

       Dunn, Officers Moore and Albert, Captain McNealy, and Chauncy. The State

       also presented the Vista Village surveillance video footage that clearly shows

       Peterson’s truck. McNealy’s testimony about the footage highlighted that it

       shows “an object sticking out of the driver side window of the truck that . . .

       appears to be a shotgun barrel,” then a “driver who is holding the gun attempt

       to – through experience, attempt to cycle the action of a pumped-style

       shotgun,” the gun’s “movement up and then back, and it comes to level again,”

       and the “second kick . . . of the shotgun” before it “appears to be pulled back

       in” and the “truck reverses away.” Transcript Volume 4 at 114-115. The jury

       also heard the testimony of Garcia, who had called 911 to report the shot and

       saw Peterson’s truck move backwards at about twenty or thirty miles per hour

       with its windows up. Thus, we conclude that any alleged error is harmless and

       the admission of the phone calls into evidence is not grounds for reversal.


                                                         II.

[29]   The next issue is whether the evidence is sufficient to sustain Peterson’s

       convictions for possession of a firearm by a serious violent felon, a level 4

       felony, and criminal recklessness as a level 6 felony. Peterson contends that the

       evidence leading to his conviction was circumstantial, that he was convicted

       based on speculative evidence and conjecture, and that the State raised at most

       a mere possibility – that he might have driven the truck and fired the shot since

       he was angry at Bradley for attacking his mother – which is not proof beyond a

       reasonable doubt.

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 21 of 31
[30]   The State argues that, “[e]ven without the video showing the barrel of a gun

       extending out of the driver’s side window of [Peterson’s] truck and the

       testimony regarding events leading up to the discharge of that weapon,” the

       State’s evidence sufficiently supports Peterson’s conviction on Count I because

       police recovered two firearms from his trailer after he had been convicted of a

       qualifying felony. Id. at 26-27. It asserts that, while the video does not provide

       a clear look at the face of the shooter, the general appearance of the shooter’s

       face is not inconsistent with Peterson’s appearance as seen slightly earlier in the

       video as he exits the truck, the shooting happened close in time to Peterson

       clearly entering the truck and sliding into the driver’s seat, and the State

       presented ample evidence of Peterson’s motive in seeking retribution for

       Bradley’s altercation with his mother, Geneva.


[31]   When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

       inferences therefrom that support the verdict. Id. The conviction will be

       affirmed if there exists evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. Id. Identity may be

       established entirely by circumstantial evidence and the logical inferences drawn

       therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990).

       Identification testimony need not necessarily be unequivocal to sustain a

       conviction. Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App. 2016) (quoting

       Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996)).


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 22 of 31
[32]   At the time of the offense, Ind. Code § 35-47-4-5(c) provided that a “serious

       violent felon who knowingly or intentionally possesses a firearm commits

       unlawful possession of a firearm by a serious violent felon, a Level 4 felony,”

       and Ind. Code § 35-47-1-5 defined a “firearm” as “any weapon: (1) that is (A)

       capable of expelling; or (B) designed to expel; or (2) that may be readily

       converted to expel; a projectile by means of an explosion.” Ind. Code § 35-42-

       2-2(b)(1)(A) provided that a person who recklessly, knowingly, or intentionally

       performs an act that creates a substantial risk of bodily injury to another person

       commits criminal recklessness as a level 6 felony if “it is committed while

       armed with a deadly weapon.”


[33]   We observe Peterson’s April 6 stipulation that his dealing in methamphetamine

       as a class B felony on July 23, 2013, in the Decatur Superior Court in Cause

       No. 207, for an offense committed on or about March 21, 2012, makes him a

       serious violent felon under Ind. Code § 35-47-4-5. We also note that Peterson

       stipulated on April 27, 2017, to owning the mobile home on Lot 85 where two

       weapons were retrieved by Captain McNealy and Officer Albert, that the Vista

       Village surveillance video footage showed a weapon fired from Peterson’s truck

       in the near vicinity after he moved across the passenger seat into the driver’s

       seat and the truck appeared to move; and that Bradley had an argument with

       Peterson’s mother, Geneva, which had prompted Peterson to confront Bradley

       at the store before he returned to Vista Village in his truck and before the shot

       was fired into the Ford Taurus. Based upon the evidence discussed above and

       reflected in the record, we conclude that the State presented evidence of


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 23 of 31
       probative value from which a reasonable jury could have determined beyond a

       reasonable doubt that Peterson was the person who committed the crimes.


                                                         III.

[34]   The last issue is whether the trial court erred in applying the habitual offender

       sentencing enhancement to Peterson’s convictions. At the time of Peterson’s

       convictions, Ind. Code § 35-50-2-8 provided:


               (a) The state may seek to have a person sentenced as a habitual
               offender for a felony by alleging, on one (1) or more pages
               separate from the rest of the charging instrument, that the person
               has accumulated the required number of prior unrelated felony
               convictions in accordance with this section.

               (b) A person convicted of murder or of a Level 1 through Level 4
               felony is a habitual offender if the state proves beyond a
               reasonable doubt that:

                        (1) the person has been convicted of two (2) prior
                        unrelated felonies; and

                        (2) at least one (1) of the prior unrelated felonies is not a
                        Level 6 felony or a Class D felony.

               (c) A person convicted of a Level 5 felony is a habitual offender if
               the state proves beyond a reasonable doubt that:

                        (1) the person has been convicted of two (2) prior
                        unrelated felonies;

                        (2) at least one (1) of the prior unrelated felonies is not a
                        Level 6 felony or a Class D felony; and

                        (3) if the person is alleged to have committed a prior
                        unrelated:


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 24 of 31
                                (A) Level 5 felony;

                                (B) Level 6 felony;

                                (C) Class C felony; or

                                (D) Class D felony;

               not more than ten (10) years have elapsed between the time the
               person was released from imprisonment, probation, or parole
               (whichever is latest) and the time the person committed the
               current offense.

               (d) A person convicted of a felony offense is a habitual offender if
               the state proves beyond a reasonable doubt that:

                        (1) the person has been convicted of three (3) prior
                        unrelated felonies; and

                        (2) if the person is alleged to have committed a prior
                        unrelated:

                                (A) Level 5 felony;

                                (B) Level 6 felony;

                                (C) Class C felony; or

                                (D) Class D felony;

                        not more than ten (10) years have elapsed between the
                        time the person was released from imprisonment,
                        probation, or parole (whichever is latest) and the time the
                        person committed the current offense.


       (Subsequently amended by Pub. L. No. 12-2017 § 1 (eff. July 1, 2017)).


[35]   Peterson argues that the trial court lacked statutory authority to add an habitual

       offender enhancement to a level 4 felony using only three class D felony

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 25 of 31
       convictions and points to Ind. Code § 35-50-2-8(b) (“Subsection 8(b)”) for

       support. Specifically, he contends that the language of Ind. Code § 35-50-2-8 is

       ambiguous, that the legislative intent was not to allow Ind. Code § 35-50-2-8(d)

       (“Subsection 8(d)”) to “excuse the State’s non-compliance with” Subsection

       8(b) or permit Subsection 8(d) to “override” Subsection 8(b), and that

       Subsection 8(b) of the habitual offender statute evidences a clear legislative

       policy toward requiring more serious crimes before adding enhancements for

       level 4 felonies. Appellant’s Brief at 20, 23.


[36]   The State argues that Peterson’s argument is a request to find the statute void

       for vagueness and a veiled constitutional challenge that he has waived in failing

       to raise any objection or argument to the trial court regarding its application of

       the provision. It argues that, waiver aside, the express language of the statute is

       unambiguous in that “it sets up a regimen for seeking a habitual offender

       enhancement based upon two prior felony convictions in [Subsection 8(b)] and

       establishes different requirements for obtaining an adjudication of that status

       based upon three prior felony convictions under [Subsection 8(d)].” Appellee’s

       Brief at 14. Further, the State contends that Peterson “creates a conundrum”

       that does not result from the plain language of the statute, which “simply

       requires one of two felonies offered in support of a habitual charge to be greater

       than a level 6 or class D felony when only two priors are presented as the bases

       for the adjudication,” and that his urged interpretation of the statute results in

       an “illogical scheme for imposing recidivist enhancements” which would allow

       for offenders convicted of less severe underlying felonies to be adjudicated


       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 26 of 31
       habitual offenders on the bases of lesser felonies but not those convicted of a

       level 4 felony or higher to be similarly adjudicated. Id. at 15-16.


[37]   The meaning of Indiana’s habitual offender statute is an issue of statutory

       interpretation, in which our review is de novo. Calvin v. State, 87 N.E.3d 474,

       476 (Ind. 2017) (quoting Day v. State, 57 N.E.3d 809, 811 (Ind. 2016)). See also

       Johnson v. State, 87 N.E.3d 471, 472 (Ind. 2017) (citing ESPN, Inc. v. Univ. of

       Notre Dame Police Dep’t., 62 N.E.3d 1192, 1195 (Ind. 2016)) (interpreting Ind.

       Code § 35-50-2-8(d) (Supp. 2015)). The primary purpose in statutory

       interpretation is to ascertain and give effect to the legislature’s intent. State v.

       Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008) (citing Hendrix v. State, 759

       N.E.2d 1045 (Ind. 2001)). The best evidence of that intent is the language of

       the statute itself. Id. The legislature intended for the statutory language to be

       applied in a logical manner consistent with the statute’s underlying policy and

       goals. Id. (citing B.K.C. v. State, 781 N.E.2d 1157 (Ind. Ct. App. 2003)). A

       court must apply the “plain and ordinary meaning, heeding both what it does

       say and what it does not say.” Day, 57 N.E.3d at 812 (internal quotations

       omitted).


[38]   The habitual offender sentencing enhancement information alleged that

       Peterson had previously been convicted of three prior, unrelated felonies, and

       not more than ten years had elapsed between the time he was released from his

       imprisonment, probation, or parole and the time he committed the current

       offense. During the habitual offender phase of the trial, the State presented

       evidence of Peterson’s convictions. The evidence reveals that Peterson was

       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 27 of 31
       convicted and sentenced for three prior class D felonies: theft in Cause No. 205

       on April 1, 2009, residential entry in Cause No. 483 on March 10, 2011, and

       domestic battery in Cause No. 628 on April 5, 2012.


[39]   Although Peterson urges this Court to read ambiguity into Ind. Code § 35-50-2-

       8, the plain language of Subsection 8(d) dictates a determination of habitual

       offender where the State is able to prove beyond a reasonable doubt that the

       defendant has been convicted of “three (3) prior unrelated felonies” and, if “a

       prior unrelated” lower-level felony is a level 5 or 6 or class C or D felony, that it

       “must not have been more than ten years since the person was released and the

       current offense was committed.” Johnson v. State, 87 N.E.3d 471, 473 (Ind.

       2017). Alternatively, Subsection 8(b) and Ind. Code § 35-50-2-8(c) (“Subsection

       8(c)”) contemplate scenarios wherein the State need prove beyond a reasonable

       doubt that the defendant has been convicted of “two (2) prior unrelated

       felonies.” Ind. Code § 35-50-2-8(b), (c). To the extent Peterson argues that the

       legislative intent was not to allow Subsection 8(d) to “excuse . . .

       noncompliance” with the requirements of Subsection 8(b), we find that a logical

       reading of the habitual offender enhancement statute does not require the State

       to show that the requirements of Subsection 8(b) are satisfied where the State is

       able to prove the requirements outlined in Subsection 8(d). Accordingly, we

       affirm the habitual offender enhancement of Peterson’s sentence for possession

       of a firearm by a serious violent felon.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 28 of 31
[40]   While we affirm the trial court’s enhancement under Count I, we observe that,

       as Peterson argues, the court improperly enhanced Count II. At the time of

       Peterson’s convictions, Ind. Code § 35-50-2-8(j) provided:


               Habitual offender is a status that results in an enhanced sentence.
               It is not a separate crime and does not result in a consecutive
               sentence. The court shall attach the habitual offender
               enhancement to the felony conviction with the highest sentence
               imposed and specify which felony count is being enhanced. If
               the felony enhanced by the habitual offender determination is set
               aside or vacated, the court shall resentence the person and apply
               the habitual offender enhancement to the felony conviction with
               the next highest sentence in the underlying cause, if any.


       (Subsequently amended by Pub. L. No. 12-2017 § 1 (eff. July 1, 2017)). An

       habitual offender enhancement must be attached to the sentence of a single

       conviction. State v. Arnold, 27 N.E.3d 315, 317 n.1 (Ind. Ct. App. 2015), trans.

       denied. The trial court is further required to attach it to “the felony conviction

       with the highest sentence imposed and specify which felony count is being

       enhanced.” Id. at 321 (quoting Ind. Code § 35-50-2-8(j)). Indiana courts “have

       repeatedly held that, when defendants are convicted of multiple offenses and

       found to be habitual offenders, trial courts must impose the resulting penalty

       enhancement upon only one of the convictions and must specify the conviction

       to be so enhanced.” McIntire, 717 N.E.2d at 102 (citing Chappel v. State, 591

       N.E.2d 1011, 1012 (Ind. 1992)). Failure to specify requires that we remand the

       cause to the trial court to correct the sentence as it regards the habitual offender

       status. Id. (citing Chappel, 591 N.E.2d at 1016; Miller v. State, 563 N.E.2d 578,

       584 (Ind. 1990)). See also id. at 102 n.9 (“The only time we have found remand
       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 29 of 31
       for re-sentencing to be unnecessary is when we affirmed all convictions and the

       trial court ordered identical sentences to run concurrently.”) (citing Carter, 686

       N.E.2d at 839; Corn v. State, 659 N.E.2d 554, 558 (Ind. 1995); Holbrook v. State,

       556 N.E.2d 925, 926 (Ind. 1990)).


[41]   Accordingly, the trial court erred in enhancing both Peterson’s sentence under

       Count I and his sentence under Count II and should have enhanced only the

       highest felony conviction sentence imposed, which was his sentence for

       possession of a firearm by a serious violent felon. We also observe that, at

       sentencing, the court stated its belief that the “enhancement, not only do they

       merge with each other, but . . . Count I and Count II could each be enhanced”

       and that they “would also be merged as, again, because we cannot double

       habitualize somebody”; that the court entered a finding on both of the

       convictions “in order they be merged”; and, that the judgment of conviction

       and sentencing order states that Peterson’s sentences for Counts I and II “be

       merged with each other and served concurrently.” Transcript Volume 5 at 14.

       Appellant’s Appendix Volume 3 at 115. Peterson argues, in essence, that the

       statutory language of Ind. Code § 35-50-2-8(j) is “made nonsensical if the court

       were initially permitted to attach an enhancement” to both sentences by

       merging them. Appellant’s Brief at 27. The State contends that the trial court

       “did alternatively attach a habitual offender enhancement to Count II before

       ordering it merged and concurrent” and agrees that, to the extent this Court

       shares Peterson’s concern, remand is appropriate for clarification on the trial




       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 30 of 31
       court’s use of the word merger. Appellee’s Brief at 19. We agree that

       clarification is needed and remand accordingly.


                                                   Conclusion

[42]   For the foregoing reasons, we affirm Peterson’s convictions and remand to

       vacate the enhancement of his sentence for criminal recklessness as a level 6

       felony and for clarification of the use of the term “merger.”


[43]   Affirmed in part and remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1706-CR-1334 | April 30, 2018   Page 31 of 31
