MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Aug 11 2016, 8:06 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
Thomas C. Allen                                          Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                                 IN

                                               THE
    COURT OF APPEALS OF INDIANA

Juan Duran,                                              August 11, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1601-CR-65
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1506-F6-504




Riley, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016             Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Juan Duran (Duran), appeals his convictions for Count I,

      attempted residential entry, a Level 6 felony, Ind. Code § §35-43-2-1.5; -41-5-1;

      Count II, criminal recklessness, a Class B misdemeanor, I.C. § 35-42-2-2(a); and

      Count III, criminal mischief, a Class B misdemeanor, I.C. § 35-43-1-2(a).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                     ISSUE


[3]   Duran raises one issue on appeal, which we restate as: Whether double

      jeopardy protections were violated when Duran was convicted of attempted

      residential entry, criminal recklessness, and criminal mischief.


                           FACTS AND PROCEDURAL HISTORY

[4]   Duran and Jessica Lopez (Lopez) had a son, M.L. (the Child). The two were

      not married, and Lopez had primary custody of the Child. Because there was

      no custody agreement, Duran would visit the Child at least once every month

      and pick up the Child from Lopez’s house. On February 23, 2015, at

      approximately 5:00 p.m., Lopez was at home making dinner for her four

      children, including the Child. Duran visited, in accordance with his usual

      routine before picking up the Child, Duran went into the living room to play

      with Lopez’s other son, I.L., who was autistic. Lopez saw Duran cornering

      I.L. and screaming at him. At that point, Lopez asked Duran to leave her

      house. Duran refused to leave and he pushed Lopez. In turn, Lopez slapped

      Duran across the face and pushed him out of her house. Lopez hurried back
      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016   Page 2 of 7
      inside, locked the door, and then put her foot behind the door-jamb. Lopez

      also asked her children to retrieve her cell phone so that she could call the

      police.


[5]   Angered by Lopez’s actions, Duran ran back to the door, opened the screen

      door, and started kicking the door with his foot. Lopez was still holding the

      bottom of the door with her foot, but the top part of the door bent inwards due

      to Duran’s forceful kicks. Duran kicked the door about three to four times, and

      he also kicked the Plexiglas window in the center of the door several times. In

      the process, the entire window came off and fell into Lopez’s residence. The

      Child, who was standing behind the door, was struck in the face by the

      Plexiglas. The Child screamed and blood trickled down his face. Upon seeing

      what he had done, Duran pulled his foot out of the door and ran to his car.

      Lopez followed him and told him that she was calling the police.


[6]   On June 4, 2015, the State filed an Information, charging Duran with Count I,

      residential entry, a Level 6 felony; Count II, criminal recklessness, a Class B

      misdemeanor; and Count III, criminal mischief, a Class B misdemeanor. A

      jury trial was held on December 1, 2015, and at the close of the hearing, Duran

      was found guilty as charged. On December 17, 2015, the trial court sentenced

      Duran to one year executed in the Department of Correction for his attempted

      residential entry conviction, sixty days for his criminal recklessness conviction,

      and sixty days for his criminal mischief conviction. All sentences were to run

      concurrently.



      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016   Page 3 of 7
[7]   Duran now appeals. Additional facts will be provided as necessary.


                                     DISCUSSION AND DECISION

[8]   Duran argues his conviction and subsequent sentence for all three charges—

      attempted residential entry, criminal recklessness, and criminal mischief—

      violates double jeopardy principles.


[9]   Article I, Section 14 of the Indiana Constitution provides that “[n]o person shall

      be put in jeopardy twice for the same offense.” 1 We determine whether

      convictions violate this clause by following the two-part test established in

      Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). First, we evaluate whether

      the statutory elements of the crimes are the same. Goldberry v. State, 821 N.E.2d

      447, 458 (Ind. Ct. App. 2005). Then, we evaluate whether the actual evidence

      used to convict the defendant of the two crimes is the same. Id. In Spivey v.

      State, 761 N.E.2d 831, 833 (Ind. 2001), our supreme court further explained

      that the actual evidence test is not merely whether the evidentiary facts used to

      establish one of the essential elements of one offense may also have been used

      to establish one of the essential elements of a second challenged offense.

      Rather, the actual evidence test is not violated so long as each conviction

      requires proof of at least one unique evidentiary fact. Bald v. State, 766 N.E.2d

      1170, 1172 (Ind. 2002). Thus, even if each charge utilizes the same factual

      event, no constitutional violation will be found if the second offense requires




      1
          Duran has not raised a double jeopardy claim under the United States Constitution.


      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016     Page 4 of 7
       additional evidentiary facts establishing the essential elements. Vandergriff v.

       State, 812 N.E.2d 1084, 1086-87 (Ind. Ct. App. 2004).


[10]   Duran contends that his convictions for attempted residential entry, criminal

       mischief, and criminal recklessness stem from the same evidence. The State

       agrees with Duran’s double jeopardy argument but only with respect to his

       convictions for attempted residential entry and criminal mischief. The elements

       of attempted residential entry are met when a person knowingly or intentionally

       performs a substantial step toward breaking and entering the dwelling of

       another. I.C. § §35-43-2-1.5; -41-5-1. To convict Duran of criminal mischief as

       a Class B misdemeanor, the State was required to establish that Duran

       recklessly, knowingly, or intentionally damaged or defaced property of Lopez

       without her consent. See I.C. § 35-43-l-2(a)(l). Specifically, the State admits

       that the jury may have relied on the same act, Duran’s act of forcefully kicking

       Lopez’s door, to support those convictions. Thus, to remedy this error, we

       remand with instructions for the trial court to vacate Duran’s criminal mischief

       conviction, the lesser of the two charges. See Richardson, 717 N.E.2d at 54

       (“When two convictions are found to contravene double jeopardy principles, a

       reviewing court may remedy the violation by reducing either conviction to a

       less serious form of the same offense if doing so will eliminate the violation. If

       it will not, one of the convictions must be vacated.”).


[11]   With regard to whether Duran’s convictions for attempted residential entry and

       criminal recklessness violate the double jeopardy principles, we find no

       violation. At issue in this case is the application of the actual evidence test. As

       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016   Page 5 of 7
       noted above, the elements of Level 6 felony attempted residential entry are met

       when a person knowingly or intentionally performs a substantial step toward

       breaking and entering the dwelling of another. I.C. §§ 35-41-5-1; -43-2-1.5. In

       order to convict Duran of criminal recklessness as charged, the State had to

       prove that Duran recklessly, knowingly, or intentionally performed an act that

       created a substantial risk of bodily injury to the Child. I.C. § 35-42-2-2(a). A

       person engages in conduct “recklessly” if he engages in the conduct in plain,

       conscious, and unjustifiable disregard of harm that might result and the

       disregard involves a substantial deviation from acceptable standards of conduct.

       I.C. § 35-41-2-2(c).


[12]   Based on the foregoing, Duran’s argument that his attempted residential entry

       and criminal recklessness relied on the same actual evidence fails. With respect

       to his attempted residential entry offense, the State introduced evidence that

       Duran used his foot to kick Lopez’s door. As for his criminal recklessness

       charge, the State introduced evidence that Duran, with plain, conscious, and

       unjustifiable disregard to the Child’s safety, forcibly kicked Lopez’s door and

       the Plexiglas from the door that injured his son. Because the criminal

       recklessness conviction required additional proof that Duran, recklessly kicked

       Lopez’s door, his convictions for attempted residential entry, and criminal

       recklessness did not violate the actual evidence test. See Richardson, 717 N.E.2d

       54.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016   Page 6 of 7
[13]   Accordingly, we reverse in part and remand to the trial court with instructions

       to vacate Duran’s conviction and sentence for criminal mischief. However,

       Duran’s convictions for residential entry and criminal recklessness remain.


                                               CONCLUSION

[14]   Based on the foregoing, we affirm Duran’s convictions for attempted residential

       entry and criminal recklessness; but we reverse in part and remand to the trial

       court with instructions to vacate Duran’s conviction and sentence for criminal

       mischief.


[15]   Affirmed in part, reversed, in part, and remanded with instructions.


[16]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016   Page 7 of 7
