MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                                           09/06/2017, 10:20 am
this Memorandum Decision shall not be                                                 CLERK
regarded as precedent or cited before any                                         Indiana Supreme Court
                                                                                     Court of Appeals
court except for the purpose of establishing                                           and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Charles Freeman, Jr.,                             September 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1701-CR-19
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82C01-1601-F3-240



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017         Page 1 of 18
                                             Case Summary
[1]   Donald Charles Freeman, Jr., (“Freeman”) appeals his convictions, following a

      jury trial, and his sentence for armed robbery, as a Level 3 felony;1 resisting law

      enforcement, as a Level 6 felony;2 and resisting law enforcement, as a Class A

      misdemeanor.3


[2]   We affirm Freeman’s convictions, and remand for clarification of sentencing.



                                                   Issues
[3]   Freeman raises three issues on appeal which we restate as follows:

                 I. Whether the trial court abused its discretion when it admitted
                    Exhibit 37, an Alcohol, Tobacco, and Firearms (“ATF”)
                    firearms trace summary.


                 II. Whether Freeman’s two convictions for resisting law
                     enforcement violate the prohibition against double jeopardy
                     under the Indiana Constitution.


                 III.Whether the trial court should clarify its sentencing order to
                     provide that all sentences in this cause run concurrently to
                     each other and consecutively to cause number 82C01-1301-
                     FB-34.




      1
          Ind. Code § 35-42-5-1(1) (2016).
      2
          I.C. § 35-44.1-3-1(b)(1)(B).
      3
          I.C. § 35-44.1-3-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 2 of 18
                            Facts and Procedural History
[4]   In January 2016, Dolton Borders (“Borders”) arranged to deliver three grams of

      marijuana to an unknown buyer. Borders drove to a liquor store on Fulton

      Avenue in Evansville on the evening of January 8, 2016, to meet the buyer.


[5]   Also on the evening of January 8, Trenton Terrell (“Terrell”) was with his

      girlfriend, Shelby Carnes (“Carnes”), driving Carnes’ Nissan Juke in Evansville.

      Terrell dropped off Carnes at Dick’s Sporting Goods (“Dick’s”) and proceeded

      to the South side of Evansville to meet Freeman and another individual named

      Isaiah. Freeman and Isaiah got into the vehicle, and Terrell drove the three of

      them back to Dick’s to pick up Carnes. At Dick’s, Carnes got into the front

      passenger seat, Freeman sat behind her, Isaiah sat in the rear driver’s side seat,

      and Terrell continued to drive.


[6]   Terrell drove to Fulton Avenue and stopped at the liquor store. Freeman then

      exited the vehicle and approached Borders, who had already arrived at the

      liquor store and was waiting in his vehicle. Freeman got into Borders’ vehicle,

      and Borders showed Freeman the marijuana. Freeman pulled out a scale and

      weighed the marijuana. Freeman then pulled out a gun, took the marijuana,

      and demanded Borders’ wallet. Borders stated that he did not have his wallet,

      and Freeman stated that he wanted Borders to show him that he did not have a

      wallet. As Borders rose out of his seat to comply with Freeman’s demand,

      Freeman saw that Borders had a holstered handgun. Borders’ handgun was a

      nine-millimeter Smith & Wesson. While pointing his own gun at Borders,


      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 3 of 18
      Freeman took Borders’ gun from him and exited Borders’ vehicle. Borders then

      called 9-1-1 and reported that he had been robbed.


[7]   Freeman got back into Carnes’ vehicle and told Terrell, “I got it.” Tr. Vol. III

      at 89. Terrell then drove on Fulton Avenue toward downtown Evansville.

      Meanwhile, officers with the Evansville Police Department (“EPD”) were

      dispatched to Fulton Avenue in response to Borders’ 9-1-1 call. When Terrell

      turned from Fulton Avenue onto Riverside Drive, several police cars pulled up

      behind him and signaled for him to stop.


[8]   When Terrell stopped the vehicle, Freeman exited from the back passenger side

      of the vehicle and ran. EPD K-9 Officer Douglas Bueltel commanded Freeman

      to stop, but Freeman continued to run. Officer Bueltel then opened the door of

      his vehicle and gave his canine, Gero, the command to apprehend Freeman.

      EPD Officer Zach Elfreich observed Freeman running from the other officers,

      and followed Freeman in his vehicle. Near the “Spudz-N-Stuff” at Vine and

      First Streets, Officer Elfreich saw Gero catch up with Freeman and grab onto

      Freeman with a bite, but Freeman tried to continue running with Gero holding

      onto his leg. Officer Elfreich then got out of his vehicle and ordered Freeman

      to get on the ground. When Freeman did not comply with this command,

      Officer Elfreich ran after Freeman and tackled him to the ground. Officer

      Elfreich told Freeman several times to put his hands behind his back, but

      Freeman did not comply and instead swung around and attempted to push

      Officer Elfreich off. Freeman then struck Officer Elfreich in the face, causing

      injury to Officer Elfreich’s face.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 4 of 18
[9]    The EPD found a .22 caliber handgun under the front passenger seat of Carnes’

       vehicle, and the gun was plainly visible from the backseat area. The police also

       found a metal fifteen-round Smith and Wesson magazine and a digital scale

       lying on the ground next to the passenger’s side of Carnes’ vehicle. The police

       found the nine-millimeter Smith & Wesson handgun at Vine and First Streets,

       where Freeman had been apprehended, approximately two blocks east of where

       the police stopped Carnes’ vehicle.


[10]   The State charged Freeman with Count I, armed robbery, as a Level 3 felony;

       Count II, battery against a police officer, as a Level 5 felony;4 Count III,

       resisting law enforcement, as a Level 6 felony; Count IV, carrying a handgun

       without a license, as a Class A misdemeanor;5 Count V, resisting law

       enforcement, as a Class A misdemeanor; and Count VI, possession of

       marijuana, as a Class B misdemeanor.6 Freeman’s jury trial was held on

       November 9 and 10, 2016.


[11]   At the trial, Borders testified that Freeman had stolen Borders’ gun on January

       8, 2016. Borders described his gun as a “Smith and Wesson SD9 [with] a black

       handle on it and the top part of it is silver.” Tr. Vol. III at 114. Borders then




       4
           I.C. § 35-42-2-1.
       5
           I.C. § 35-47-2-1.
       6
           I.C. § 35-48-4-11.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 5 of 18
       identified State’s Exhibit 11 as a picture of his gun. Borders testified that his

       guardian, Kenneth McElwee, had purchased the gun for Borders.


[12]   EPD Officer Aaron Bourland, a crime scene detective, also testified. He stated

       that he found the Smith and Wesson handgun at Vine and First Streets, “a

       block or two” east of where the police stopped Carnes’ vehicle on January 8,

       2016. Id. at 34-35. Officer Bourland photographed the gun and sealed it as

       evidence. He identified State’s Exhibit 11 as the photograph he took of the

       Smith and Wesson handgun where it was found, and he identified State’s

       Exhibit 34, admitted without objection, as the gun itself. He identified State’s

       Exhibit 12 as the photograph he took of the magazine that he found on the

       ground outside of the passenger side of Carnes’ vehicle. He testified that the

       magazine photographed in Exhibit 12 fit the gun in Exhibit 34.


[13]   Officer Bourland also testified that he ran firearms traces through the Alcohol,

       Tobacco, and Firearms (“ATF”) division of the federal government on the

       Smith and Wesson handgun in Exhibit 34 and the .22 caliber gun found under

       the seat of Carnes’ vehicle. He testified that the Smith and Wesson handgun

       “was traced through the ATF, the Smith & Wesson 9 millimeter, it was

       purchased by a Kenneth Ray, the last name is M C E L W E E, it was bought

       here in Evansville in October 29, 2015.” Id. at 60. Officer Bourland testified

       that State’s Exhibit 37 was the ATF summary regarding the trace of the Smith

       and Wesson handgun, and Exhibit 36 was the ATF summary regarding the

       trace of the .22 caliber handgun. He explained the way in which he obtained

       the trace summaries on the two handguns:

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 6 of 18
               OFFICER BOURLAND: I have a login and password through
               the ATF, I submit the information that’s located on the firearm,
               including the model, the serial number, and other identifying
               marks, they then do a trace on the firearm and they send it back
               to me which I then attach to RMS under the case number.


                                                       ***


               PROSECUTOR: And then with regard to RMS, what is RMS?


               A: It is our system for record keeping where we do reports, it’s
               basically where we attach and do everything that we do in terms
               of documentation.


               Q: Who has access to the ATF gun registration data base?


               A: I, do you mean in terms of what I send off?


               Q: Well, who generally has access, can I get there, can I buy a
               password?


               A: You cannot, we have credentials being crime scene detectives
               to be able to do that.


       Id. at 60-61.


[14]   The State moved to admit Exhibits 36 (the ATF summary on the .22 caliber

       handgun) and 37 (the ATF summary on the Smith and Wesson handgun).

       Defendant did not object to the admission of Exhibit 36 (stating, “36 is fine,”

       Id. at 62), but objected to the admission of Exhibit 37 on the grounds that “it

       includes some information that I think isn’t relevant on this case and I would

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 7 of 18
       ask that it be redacted on that part based on this witness[’] testimony.”7 Id. The

       State responded that it would redact the information to which the defendant

       objected, and the defendant responded, “I have no problem with the three lines

       in question being redacted.” Id. Defendant’s objection to Exhibit 37 was

       sustained pending redaction.


[15]   The State subsequently moved to admit a redacted version Exhibit 378 after

       Borders’ testimony regarding where his guardian had purchased the Smith and

       Wesson handgun. The defendant objected on the following grounds: “[T]he

       foundation hasn’t been laid for anything other than the fact that this witness

       purchased the gun from Rural King, the rest of the information in this report

       hasn’t been authenticated, the foundation hasn’t been laid for this to come in to

       evidence with this witness.” Id. at 127. The State responded that Officer

       Bourland’s previous testimony had laid the foundation for the report in Exhibit

       37. The trial court admitted the exhibit.


[16]   The jury found Freeman guilty of counts I, III, IV, 9 and V. The jury found

       Freeman not guilty of count II, and the trial court dismissed count VI upon the




       7
        The Defendant apparently objected to the information under the heading “Recovery Information,” which
       was subsequently redacted in the admitted exhibit. State’s Exhibits 37 and 37-A.
       8
         Two versions of the ATF trace summary on the Smith and Wesson handgun were admitted into evidence:
       an unredacted version was admitted as Exhibit 37, and a redacted version was admitted at Exhibit 37-A. For
       ease of reference, we refer to Exhibit 37 throughout this opinion since the issue of redaction is not relevant to
       this appeal.
       9
         Freeman does not appeal his conviction for count IV, carrying a handgun without a license, which related
       to Freeman’s own gun.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017              Page 8 of 18
       State’s motion. On December 2, 2016, the trial court sentenced Freeman to

       nine (9) years under count I; two (2) years under count III; and one (1) year

       each under counts IV and V. The trial court ordered that “[a]ll the counts are to

       run concurrently” for an aggregate sentence of nine years and that the sentence

       in the instant case, “l60l-F3-240, is to run consecutive to the sentence in l30l-

       FB-34.” Tr. Vol. II at 11. However, the written sentencing order checks boxes

       for both “concurrent” and “consecutive” for each count. Appellant’s App. Vol.

       II at 118. And the abstract of judgment says, for each count: “Consecutive:

       82C01-1301-FB-34[;] Concurrent: Counts.” Id. at 120.


[17]   Freeman now appeals his convictions for one count of armed robbery and two

       counts of resisting law enforcement and seeks clarification of his sentence.



                                  Discussion and Decision
                Admissibility of ATF Firearms Trace Summary
[18]   Freeman contends that the trial court erred in admitting Exhibit 37, an ATF

       firearms trace summary on the nine-millimeter Smith and Wesson handgun,

       which showed that Border’s guardian purchased the handgun approximately

       two months prior to the date of the crime. We review a trial court’s admission

       or exclusion of evidence for an abuse of discretion, “which occurs if a trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court.” Speybroeck v. State, 875 N.E.2d 813, 818 (Ind.

       Ct. App. 2007) (citation omitted). However, the State asserts that Freeman has


       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 9 of 18
       waived an appeal of the admission of Exhibit 37 on lack-of-foundation grounds

       because he failed to raise that objection below. We agree.


[19]   As we have recently held,


               [l]itigants may not object in general terms but must state their
               objections with specificity. Espinoza v. State, 859 N.E.2d 375, 384
               (Ind. Ct. App. 2006). Any grounds for objections not raised at
               trial are not available on appeal, and a party may not add to or
               change his grounds in the reviewing court. Treadway v. State, 924
               N.E.2d 621, 631 (Ind. 2010). A claim of evidentiary error may
               not be raised for the first time on appeal but rather must first be
               presented at trial in order to permit consideration of the objection
               and appropriate corrective action by the trial court. Stephenson v.
               State, 29 N.E.3d 111, 121 (Ind. 2015).


       Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied. In

       Hunter, the defendant had objected at trial to the admission of recordings of a

       drug buy on lack-of-foundation grounds only on the bases that there was

       confusion as to the date on the exhibit and as to the confidential informant’s

       mark on the exhibit. On appeal, the defendant contended the exhibit lacked a

       proper foundation only because the confidential informant did not testify that

       the recordings were true and accurate representations of the scene at the time of

       the drug buy. However, we held that the defendant had waived the latter lack-

       of-foundation claim because he had failed to object on that basis before the trial

       court. Id.


[20]   As in Hunter, Freeman has waived his contention that Officer Bourland’s

       testimony failed to lay a proper foundation for Exhibit 37 because he failed to

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 10 of 18
       make that objection in the trial court. Rather, Freeman’s only objection to the

       introduction of Exhibit 37 through Officer Bourland’s testimony was that the

       exhibit contained some irrelevant information that should be redacted. And,

       although Freemen objected to the introduction of the exhibit through Borders

       because “the foundation hasn’t been laid for [Exhibit 37] to come in to evidence

       with this witness,” Tr. Vol. III at 127 (emphasis added), that objection did not

       relate in any way to the foundation laid for the exhibit by Officer Bourland’s

       testimony.10 Freeman may not on appeal change the basis for his objections to

       the admission of Exhibit 37. Hunter, 72 N.E.3d at 932.


[21]   Waiver notwithstanding, even if we assume that the trial court erred in

       admitting Exhibit 37, the error was harmless.

               Generally, errors in the admission of evidence are to be
               disregarded unless they affect the substantial rights of a party.
               Turner [v. State], 953 N.E.2d [1039,] 1059 [(Ind. 2011)]. In
               viewing the effect of the evidentiary ruling on a defendant’s
               substantial rights, we look to the probable impact 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 there is no substantial
               likelihood the challenged evidence contributed to the conviction.
               Id. Moreover, “[a]ny error in the admission of evidence is not
               prejudicial, and [is] therefore harmless, if the same or similar




       10
          In fact, Freeman had no objection to the admission, through Officer Bourland’s testimony, of Exhibit 36,
       the ATF firearms trace summary of the .22 caliber handgun, for which the exact same foundational
       testimony was provided by Officer Bourland. Tr. Vol. III at 60-62.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017         Page 11 of 18
               evidence has been admitted without objection or contradiction.”
               McCovens v. State, 539 N.E.2d 26, 30 (Ind. 1989).


       Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).


[22]   Here, the same evidence that was contained in Exhibit 37 was admitted

       elsewhere at the trial without objection. Officer Bourland testified, without

       objection, that the Smith and Wesson handgun with the same serial number as

       the Smith and Wesson handgun found where Freeman was apprehended by

       police was purchased by Kenneth McElwee two months before the robbery

       occurred. Tr. Vol. III at 60. And Borders testified, without objection, that

       Kenneth McElwee was his guardian and had bought the Smith and Wesson

       handgun for him. Id. at 114, 129. Because the relevant evidence from Exhibit

       37 was admitted without objection elsewhere, there was no prejudice to

       Freeman from the admission of the exhibit.


[23]   Moreover, there was substantial evidence, apart from the ATF firearms trace

       summary in State’s Exhibit 37, that Freeman committed armed robbery by

       stealing Borders’ Smith and Wesson handgun. In addition to both Borders’ and

       Officer Bourland’s identification of the Smith and Wesson handgun, Borders

       also testified that he witnessed Freeman draw a gun on him and then steal

       Borders’ gun from him on the evening of January 8, 2016 by the liquor store on

       Fulton Avenue. Carnes and Terrell also testified that they saw Freeman get

       into Borders’ vehicle at the liquor store on Fulton Avenue at that date and time

       and then get back into Carnes’ vehicle. EPD officers testified that they stopped

       Carnes’ vehicle in which Freeman was a passenger and observed Freeman then
       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 12 of 18
       run away from them. Officer Bourland testified that he found a .22 caliber

       handgun under the passenger seat in front of where Freeman had been sitting in

       Carnes’ vehicle. Officer Bourland also testified that he found the magazine that

       fit Borders’ gun on the ground right outside of Carnes’ vehicle, by the door from

       which Freeman had exited. And Officer Bourland testified that he found

       Borders’ gun at the location where Freeman was ultimately apprehended by

       police. Thus, Freeman’s conviction of armed robbery was supported by

       substantial evidence of his guilt independently of Exhibit 37, making any error

       in the admission of that exhibit harmless. Hoglund, 962 N.E.2d at 1238.


               Double Jeopardy under the Indiana Constitution
[24]   Freeman was convicted of two counts of resisting law enforcement, one for

       fleeing from EPD officers after being ordered to stop, and another for fleeing

       from Officer Elfreich after being ordered to stop and while inflicting bodily

       injury upon him. Freeman maintains that both of these convictions cannot

       stand in light of the prohibition against double jeopardy under Article 1, Section

       14, of the Indiana Constitution.11 Whether convictions violate double jeopardy

       is a question of law which we review de novo. E.g., Rexroat v. State, 966 N.E.2d

       165, 168 (Ind. Ct. App. 2012), trans. denied.




       11
         Freeman does not challenge his convictions under the Fifth Amendment to the United States
       Constitution.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017        Page 13 of 18
[25]   Prohibitions against double jeopardy protect a defendant against, among other

       things, multiple punishments for the same offense in a single trial. Richardson v.

       State, 717 N.E.2d 32, 37 n.3 (Ind. 1999). “[T]wo or more offenses are the ‘same

       offense’ in violation of Article 1, Section 14, of the Indiana Constitution, if,

       with respect to either the statutory elements of the challenged crimes or the

       actual evidence used to convict, the essential elements of one challenged offense

       also establish the essential elements of another challenged offense.” Id. at 49-50

       (emphases and footnote omitted).

               In order to find a double jeopardy violation under the actual
               evidence test, a reviewing court must conclude there is a
               reasonable possibility that the evidentiary facts used by the
               factfinder to establish the essential elements of an offense for
               which the defendant was convicted or acquitted may also have
               been used to establish all the essential elements of a second
               challenged offense. Garrett v. State, 992 N.E.2d 710, 722-23 (Ind.
               2013) (quoting Richardson, 717 N.E.2d at 53); Lee v. State, 892
               N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey[v. State], 761
               N.E.2d [831,] 833 [(Ind. 2002)]). “Application of this test
               requires the court to ‘identify the essential elements of each of the
               challenged crimes and to evaluate the evidence from the jury’s
               perspective....’” Lee, 892 N.E.2d at 1234 (quoting Spivey, 761
               N.E.2d at 832). In determining the facts used by the fact-finder,
               “it is appropriate to consider the charging information, jury
               instructions, [ ] arguments of counsel” and other factors that may
               have guided the jury’s determination. Lee, 892 N.E.2d at 1234
               (citing Spivey, 761 N.E.2d at 832 and Richardson, 717 N.E.2d at
               54 n.48).


       Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015) (emphasis added). Thus, under

       the actual evidence test, “it is not sufficient merely to show that the same

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 14 of 18
       evidence may have been used to prove a single element of two criminal

       offenses.” Henderson v. State, 769 N.E.2d 172, 177 (Ind. 2002) (quotations and

       citation omitted). Rather, “in order for there to be a double jeopardy violation

       under the actual-evidence test the evidentiary footprint for all the elements

       required to prove one offense must be the same evidentiary footprint as that

       required to prove all the elements of another offense.”12 Berg v. State, 45 N.E.3d

       506, 510 (Ind. Ct. App. 2015).


[26]   Within the context of multiple resisting law enforcement convictions, we have

       held that “[a] defendant may be convicted of multiple counts of resisting law

       enforcement when he has committed more than one of the acts enumerated

       under [I.C. § 35-44.1-3-1].” Williams v. State, 755 N.E.2d 1183, 1186 (Ind. Ct.

       App. 2001). Thus, we have upheld two convictions for resisting law

       enforcement when one involved the defendant’s act of fleeing from officers

       under Indiana Code Section 35-44.1-3-1(a), and the other involved the

       defendant’s infliction of bodily injury upon an officer while resisting under

       Indiana Code Section 35-44.1-3-1(b)(1)(B). Id.; see also, Arthur v. State, 824

       N.E.2d 383, 386 (Ind. Ct. App. 2005) (recognizing that “resisting law




       12
          Thus, Freeman is incorrect when he contends, citing Alexander v. State, 768 N.E.2d 971 (Ind. Ct. App.
       2002), trans. denied, that “a double jeopardy violation occurs if the evidence underlying all of the elements of
       one offense is the same evidence underlying only one element of the second offense.” Appellant’s Br. at 21
       (emphasis original). As we noted in Ellis v. State, Alexander is inconsistent with Supreme Court precedent on
       this point. 29 N.E.3d 792, 798 n.2 (Ind. Ct. App. 2015) (citing Garrett v. State, 992 N.E.2d 710, 719 (Ind.
       2013)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017             Page 15 of 18
       enforcement by fleeing is a different ‘species’ from resisting law enforcement by

       force”), trans. denied.


[27]   Here, the charging information for misdemeanor resisting states that Freeman

       “did knowingly flee from Evansville Police Department Officers, after said

       officers identified themselves by visible or audible means and visibly or audibly

       ordered Donald Charles Freeman Jr. to stop.” Appellant’s Conf. App. at 18.

       The charging information for felony resisting states that Freeman “did

       knowingly flee from Officer Z. Elfreich, a law enforcement officer, after said

       officer identified himself by visible or audible means and visibly or audibly

       ordered said defendant to stop and in committing said act the defendant

       inflicted bodily injury on Z. Elfreich, to wit: pain.” Id. at 17-18. Thus, the

       misdemeanor conviction is based on Freeman’s flight from EPD officers and

       the felony conviction is based on Freeman’s injury of Officer Elfreich while

       fleeing from him. Because these two convictions involve different elements and

       were proven by different evidence, they are not barred by the prohibition

       against double jeopardy. Williams, 755 N.E.2d at 1186.


                             Clarification of Sentencing Order
[28]   Finally, Freeman contends that the written sentencing order in this cause is

       confusing and should be remanded to the trial court for clarification. We agree.

       At Freeman’s sentencing, the trial court clearly stated that “[a]ll the counts are

       to run concurrently.” Tr. Vol. II at 11. The court further stated that the

       sentence in this case “is to run consecutive to the sentence in” another criminal


       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 16 of 18
       case, i.e., cause number 82C01-1301-FB-34. Id. Yet, for each count in this

       cause, the written sentencing order places an “X” in both the boxes entitled

       “concurrent” and the boxes entitled “consecutive.”13 Appellant’s App. Vol. II at

       118. And the abstract of judgment does not provide clarification; for each

       count in this cause, it states as follows: “Consecutive: 82C01-1301-FB-34[;]

       Concurrent: Counts.” Id. at 120.


[29]   “Where we find an irregularity in the trial court’s sentencing decision, we may

       remand to the trial court for a clarification or new sentencing determination.”

       McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). We remand with instructions

       for the trial court to clarify in its sentencing order that all of the counts in this

       cause are to run concurrently to each other and consecutively to the sentence in

       cause number 82C01-1301-FB-34. We also advise the trial court to correct the

       statutory citation for count III.



                                                   Conclusion
[30]   Freeman waived his foundation objection to Exhibit 37 by failing to raise it in

       the trial court. Waiver notwithstanding, any error in the admission of Exhibit

       37 was harmless. And Freeman’s two resisting law enforcement convictions do

       not violate the Indiana Constitution’s prohibition against double jeopardy. We




       13
          We also note that the sentencing order cites the wrong statutory subsection for count III; it cites I.C. § 35-
       44.1-3-1(a)(3) for the felony resisting law enforcement conviction, but the correct citation for that crime is
       I.C. § 35-44.1-3-1(b)(1)(B).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017              Page 17 of 18
       affirm Freeman’s convictions and remand for clarification that his sentence for

       the counts in this cause are to run concurrently to each other and consecutively

       to the sentence in cause number 82C01-1301-FB-34.


[31]   Affirmed and remanded with instructions.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-CR-19 | September 6, 2017   Page 18 of 18
