                                                                          Apr 22 2015, 7:53 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Patricia Caress McMath                                     Gregory F. Zoeller
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 Cynthia L. Ploughe
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Bryson Tyrone Street,                                      April 22, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 21A04-1410-CR-458
              v.                                                 Appeal from the Fayette Circuit
                                                                 Court

      State of Indiana,                                          The Honorable Beth A. Butsch,
      Appellee-Plaintiff                                         Judge

                                                                 Cause No. 21C01-1406-FA-338




      Najam, Judge.


                                         Statement of the Case
[1]   Bryson Tyrone Street appeals his convictions and sentence after a jury found

      him guilty of the following offenses: burglary, as a Class A felony; attempted

      robbery, as a Class A felony; attempted robbery, as a Class B felony; battery, as

      a Class C felony; carrying a handgun without a license, a Class C felony;
      Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015                   Page 1 of 17
      criminal recklessness, as a Class D felony; neglect of a dependent, as a Class D

      felony; possession of marijuana, as a Class A misdemeanor; and to being an

      habitual offender. Street raises five issues for our review, which we consolidate

      and restate as the following four issues:


              1.       Whether some of Street’s convictions are prohibited under
                       Indiana double jeopardy law;

              2.       Whether the trial court committed fundamental error in
                       the admission of certain evidence;

              3.       Whether the State presented sufficient evidence to support
                       Street’s conviction for neglect of a dependent, as a Class D
                       felony; and

              4.       Whether the trial court erred when it sentenced Street for
                       being an habitual offender.


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


                                  Facts and Procedural History
[3]   Michael Corn and his girlfriend, Bria Benjamin, lived together in Connersville

      with their two-year-old son. Corn and Benjamin became acquainted with Street

      around March of 2014. Between March and June, Street visited Corn and

      Benjamin’s home “about ten” times. Trial Tr. at 157.


[4]   Around 8:00 a.m. on June 11, 2014, Corn, Benjamin, and their son were

      awoken by someone kicking in their back door. A neighbor observed “a

      chubby person in a gray hoodie,” blue jeans, and with “a bandana around the[]


      Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015      Page 2 of 17
      face” kicking in Corn and Benjamin’s door. Id. at 136. The neighbor called the

      police.


[5]   Meanwhile, Corn exited the family bedroom to investigate the noise at his

      door. Corn met an African-American man in the kitchen, and Corn observed

      that the man was wearing a gray hoodie, blue jeans, a bandana around his face,

      and blue gloves. Although the man’s face was covered, Corn recognized him as

      Street based on “his voice and his shape and the way” he talked. Id. at 168. In

      the bedroom, Benjamin also heard and recognized Street’s voice. Street

      demanded Corn’s money, and when Corn stated that he did not have any,

      Street instead grabbed Corn’s marijuana off of a kitchen counter. Street then

      pulled out a .25 caliber handgun and shot Corn in the thigh. Another shot

      struck the kitchen wall. Street fled before the police arrived.


[6]   When the police arrived, Corn and Benjamin were initially reluctant to identify

      Street. But they did so later on June 11, and officers obtained and executed a

      warrant to search Street’s residence later that day. In executing the warrant,

      officers seized .25 caliber ammunition, a grey sweatshirt, blue jeans with blue

      gloves stuffed inside them, and bandanas. The officer also seized firearms,

      which included a loaded .22 caliber revolver, found inside of a pillow case on

      Street’s bed. Street had lived at that residence “for a few months” and shared

      the residence with his girlfriend, Iva Fine; Fine’s daughter, T.A.F.; and Fine’s




      Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 3 of 17
      grandson, J.T.1 Street, Fine, and J.T. all slept in the same bed. Appellant’s Br.

      at 10. T.A.F. “look[ed] to [Street] as a father figure.” Trial Tr. at 428.


[7]   Officers arrested Street. In the booking room of the police station, while

      officers were conducting a pat-down of Street, a .25 caliber handgun “fell out of

      his groin area.” Id. at 455. Officers also discovered a small bag of marijuana

      “in the groin area of Mr. Street.” Id. at 457. Later ballistics testing revealed

      that the shots fired inside Corn and Benjamin’s residence were fired from the

      .25 caliber handgun that had fallen out of Street’s “groin area” during his

      booking. Id. at 455.


[8]   On July 15, 2014, the State filed its amended charging information against

      Street, in which the State alleged that Street had committed the following

      offenses:


               Count I: burglary, as a Class A felony, on the grounds that Street “did

                  break and enter the building or structure of [Corn and

                  Benjamin] . . . with the intent to commit a felony and said act resulted

                  in bodily injury” to Corn;

               Count II: attempted robbery, as a Class A felony, on the grounds that

                  Street “did knowingly or intentionally attempt to take property, to-wit:

                  U.S. Currency from . . . Corn[] by use of force or threat of force and

                  said conduct resulted in serious bodily injury” to Corn;



      1
          We note that T.A.F. is not J.T.’s mother.

      Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015     Page 4 of 17
             Count III: attempted robbery, as a Class B felony, on the grounds that

                Street “did knowingly or intentionally attempt to take property, to-wit:

                U.S. Currency from . . . Corn[] by use of force or threat of force, while

                armed with a deadly weapon or resulting in bodily injury” to Corn;

             Count IV: battery, as a Class C felony, on the grounds that Street “did

                knowingly touch [Corn] in a rude, insolent, or angry manner; by means

                of a deadly weapon, to wit: gun”;

             Count V: criminal recklessness, as a Class D felony, on the grounds

                that Street “did recklessly, knowingly, or intentionally[,] with a deadly

                weapon, to wit: gun, perform an act that created a substantial risk of

                bodily injury” to Corn, Benjamin, and/or their son, namely, “Street

                fired one or more gunshots inside the residence”;

             Count VI: neglect of a dependent, as a Class D felony, on the grounds

                that Street, “having the care of J.T . . . a dependent, did knowingly

                place said dependent in a situation that endangered the dependent’s life

                or health”;

             Count VII: carrying a handgun without a license, a Class C felony; and

             Count VIII: possession of marijuana, as a Class A misdemeanor.


      Appellant’s App. at 52-53. The State also alleged Street to be an habitual

      offender.


[9]   During Street’s ensuing jury trial, in addition to evidence showing the above

      facts, the State played two video recordings to the jury. In one, Fine stated that

      Street “‘just did six years’” and, in the other, another person, Marcus Armstead,
      Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 5 of 17
       stated that “the last few days were the most he’d seen Mr. Street in ten years

       because Mr. Street had been in jail.” Appellant’s Br. at 5 (quoting State’s Exs.

       18 & 19). Street did not object to the admission of those recordings, but, after

       the jury had viewed them, Street requested an admonishment to the jury. The

       trial court agreed, stating:


               I am admonishing you[,] that means I’m telling you, that you are
               not to consider and to regard as if you have never heard any
               remarks of any of those people with regard to Mr. Street and
               whether or not he has ever had a prior conviction of any kind or
               has ever been in prison. If you heard anything like that, it’s as if
               you never heard. You are to completely disregard it.


       Trial Tr. at 285. Street did not request a mistrial following the admonishment.


[10]   In the State’s closing argument, the prosecutor discussed how the evidence

       related to Counts I through V in reverse order as follows:


               Criminal recklessness [Count V] . . . [is] based upon the facts that
               [Street] fired the gun where [Corn, Benjamin, and J.T. lived].
               That was an act . . . creating a substantial risk of injury. . . . That
               is (inaudible) by a deadly weapon . . . Count IV [Count IV
               alleged Class C felony battery by a deadly weapon]. Why did he
               come here? Money (inaudible). [Corn] admitted he sold
               marijuana. . . . [Street] went there[,] he came in and . . . said
               where’s it at, where’s it at. . . . [Corn] . . . said that [Street had]
               said where’s the money, where’s the money but remember
               (inaudible) because you know I have a bag of weed (inaudible).
               But the money wasn’t right there on the table in the kitchen. So
               [Street] comes in, kicks through the door . . . and then when he
               demanded money and doesn’t get [it] he . . . fires (inaudible) and
               grabs something he does see on the table of value. And . . . with
               a .25 auto resulting in bodily injury, the gunshot wound.

       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015      Page 6 of 17
               (Inaudible) all the evidence you’ll find that the State has met the
               burden of proof on each and every element of the crimes charged
               against [Street] and return a verdict of guilty on all counts.


       Tr. at 561-62. The jury found Street guilty as charged.


[11]   Following a sentencing hearing, the trial court found numerous aggravating

       circumstances and no mitigating circumstances. The court then entered its

       judgment of conviction and imposed its sentence as follows:


               The Court hereby commits the Defendant to the Indiana
               Department of Correction[] for: Count I—40 years concurrent
               with 40 years on Count II. The Court merges the convictions on
               Counts II and III; consecutive to [sic] 8 years on Count IV;
               concurrent with 3 years on Count V; concurrent with 3 years on
               Count VI; concurrent with 8 years on Count VII; concurrent with
               1 year on Count VIII; to be served CONSECUTIVE to 30 years
               on being a Habitual Offender for a total of 78 years. . . .


       Appellant’s App. at 183. This appeal ensued.


                                       Discussion and Decision
                                         Issue One: Double Jeopardy

[12]   We first consider Street’s contention that several of his convictions violate

       Indiana’s prohibitions against double jeopardy. Questions of double jeopardy

       implicate fundamental rights and, as such, may be raised for the first time on

       appeal, or even by this court sua sponte. See Smith v. State, 881 N.E.2d 1040,

       1047 (Ind. Ct. App. 2008). Whether convictions violate double jeopardy is a



       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 7 of 17
       pure question of law, which we review de novo. Rexroat v. State, 966 N.E.2d

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


[13]   Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,

       providing that “[n]o person shall be put in jeopardy twice for the same offense.”

       As our supreme court has explained:


               In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
               concluded that two or more offenses are the same offense in
               violation of article 1, section 14 if, with respect to either the
               statutory elements of the challenged crimes or the actual evidence
               used to obtain convictions, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense. Under the actual evidence test, we examine
               the actual evidence presented at trial in order to determine
               whether each challenged offense was established by separate and
               distinct facts. Id. at 53. To find a double jeopardy violation
               under this test, we must conclude that there is “a reasonable
               possibility that the evidentiary facts used by the fact-finder to
               establish the essential elements of one offense may also have
               been used to establish the essential elements of a second
               challenged offense.” Id. The actual evidence test is applied to all
               the elements of both offenses. “In other words . . . the Indiana
               Double Jeopardy Clause is not violated when the evidentiary
               facts establishing the essential elements of one offense also
               establish only one or even several, but not all, of the essential
               elements of a second offense.” Spivey v. State, 761 N.E.2d 831,
               833 (Ind. 2002).

               Our precedents “instruct that a ‘reasonable possibility’ that the
               jury used the same facts to reach two convictions requires
               substantially more than a logical possibility.” Lee v. State, 892
               N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
               possibility standard “fairly implements the protections of the

       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015    Page 8 of 17
               Indiana Double Jeopardy Clause and also permits convictions for
               multiple offenses committed in a protracted criminal episode
               when the case is prosecuted in a manner that insures that
               multiple guilty verdicts are not based on the same evidentiary
               facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a
               “‘reasonable possibility’ turns on a practical assessment of
               whether the [fact finder] may have latched on to exactly the same
               facts for both convictions.” Lee, 892 N.E.2d at 1236. We
               evaluate the evidence from the jury’s perspective and may
               consider the charging information, jury instructions, and
               arguments of counsel. Id. at 1234.


       Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (last alteration original).2


[14]   Of particular relevance to this appeal is our supreme court’s opinion in Pierce v.

       State, 761 N.E.2d 826, 830 (Ind. 2002). In Pierce, the defendant broke into the

       house of his victim. Inside, he raped his victim and demanded money from her.

       The defendant’s assault resulted in bodily injury to the victim. The trial court

       entered judgment of conviction against the defendant for, among other things,

       burglary, as a Class A felony, and robbery, as a Class B felony.


[15]   In reviewing those two convictions, our supreme court held:

               To convict Pierce of burglary as a Class A felony, the State must
               show that: (1) Pierce broke and entered (2) the victim’s house (3)
               with the intent to commit a felony therein (4) resulting in either
               bodily injury or serious bodily injury. Ind. Code § 35-43-2-1
               (1998). To convict Pierce for robbery as a Class B felony, the
               State must show that Pierce: (1) knowingly or intentionally (2)



       2
         Street does not challenge the validity of his convictions under either the Fifth Amendment to the United
       States Constitution or under the statutory elements test of the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015                         Page 9 of 17
         took money (3) from the presence of the victim (4) by use of force
         or threat of force and (5) while armed with a deadly weapon or
         resulting in bodily injury to the victim. Id. 35-42-5-1.

         Each of these crimes includes evidence or facts not essential to
         the other. The taking of money supports the robbery and the
         breaking and entering supports the burglary, but neither is an
         element of the other crime. Nevertheless, we have long adhered
         to a series of rules of statutory construction and common law that
         are often described as double jeopardy, but are not governed by
         the constitutional test set forth in Richardson. See Richardson, 717
         N.E.2d at 55 (Sullivan, J., concurring); id. at 57 (Boehm, J.,
         concurring). Among these is the doctrine that where a burglary
         conviction is elevated to a Class A felony based on the same bodily injury
         that forms the basis of a Class B robbery conviction, the two cannot
         stand. Cf. Campbell v. State, 622 N.E.2d 495, 500 (Ind. 1993)
         (battery and burglary); Wolfe v. State, 549 N.E.2d 1024, 1025 (Ind.
         1990) (attempted rape and robbery); McDonald v. State, 542
         N.E.2d 552, 555-56 (Ind. 1989) (two robberies). Accordingly, the
         robbery conviction is reduced to a C felony.


Id. (emphasis added; footnotes omitted).3




3
  In Leggs v. State, we stated: “A defendant is subjected to double jeopardy ‘where a felony is elevated in
class based on the same statutory factor and factual basis that was used to elevate another felony in class,
[thus] [sic] the two cannot stand together and one must be reduced in class.’” 966 N.E.2d 204, 208-09 (Ind.
Ct. App. 2012) (quoting Pierce, 761 N.E.2d at 830) (first alteration original to Leggs). The language quoted
within this quote does not appear in Pierce but, rather, is from Hancock v. State, 768 N.E.2d 880, 880 (Ind.
2002). To be sure, however, the impermissible double enhancement in Pierce was expressly limited to “the
same bodily injury” underlying the Class A felony burglary and the Class B felony robbery. 761 N.E.2d at
830. Likewise, the “same statutory factor and factual basis that was used to elevate” the two felonies in
Hancock was the same drugging of a victim of rape and criminal deviate conduct. 768 N.E.2d at 880. Thus,
the language in Hancock is more limited than it appears. For example, it does not prohibit multiple
enhancements based on a defendant’s use of the same weapon in the commission of multiple offenses, which
would be contrary to our supreme court’s holding in Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (“The
defendant’s use of the same weapon in the commission of separate and distinct offenses . . . does not present
a violation of the Indiana Double Jeopardy Clause.”).

Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015                        Page 10 of 17
[16]   Likewise, in Campbell, our supreme court held:


               The Court of Appeals remanded this cause to the trial court with
               instructions to vacate the class C felony battery conviction and
               resentence appellant for battery as a class B misdemeanor,
               because the enhanced felony level of both [the Class C felony
               battery and Class A felony burglary] was based upon the same
               injurious consequences, violating state and federal double
               jeopardy prohibitions. We agree. Although the battery
               information alleged use of a deadly weapon and the burglary
               information alleged serious bodily injury, the basis for the
               elevation of both crimes was the same slashing of [the victim’s]
               face. Appellant was improperly sentenced for battery as a class C
               felony.


       622 N.E.2d at 500, clarified as still good law on this issue, Pierce, 761 N.E.2d at 830

       n.4.


[17]   Here, Street first argues that his convictions for Counts I and II—burglary, as a

       Class A felony, and attempted robbery, as a Class A felony, respectively—

       violate the rule announced in Pierce. The State concedes both that Street’s

       convictions on Count I and Count II violated Street’s double jeopardy rights

       under Pierce and that the proper remedy is to vacate Street’s conviction for

       Count II, attempted robbery as a Class A felony.


[18]   However, the State’s concession that Count II should be vacated appears to be

       premised on reinstating Street’s conviction for Count III, attempted robbery as

       a Class B felony, which the trial court had originally “merge[d]” with Count II.

       See Appellant’s App. at 183. The State is partly right; Count III should be

       reinstated, but not as a Class B felony. At the times relevant to Street’s
       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015     Page 11 of 17
       convictions, the base-level offense for robbery was as a Class C felony. I.C. §

       35-42-5-1 (2014). That offense was enhanced to a Class B felony if the

       defendant committed the offense while armed with a deadly weapon or the

       offense resulted in bodily injury to another person. Id. And it was enhanced to

       a Class A felony if it resulted in serious bodily injury to another person. Id.


[19]   Here, the only difference between Count II and Count III was the State’s

       alternative assertions that the injury to Corn was either serious bodily injury—

       and therefore the Class A felony alleged under Count II—or bodily injury—and

       therefore the Class B felony alleged under Count III. That is, the State charged

       Count III as a lesser-included offense to Count II, and, as such, the trial court

       was correct to conclude that it could not punish Street under both Count II and

       Count III. See, e.g., Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). But

       Count III is still an enhancement to the base, Class C felony robbery, and the

       enhancement under Count III is premised on the same bodily injury that

       formed the enhancement under Count I and elevated the burglary offense to a

       Class A felony. See I.C. § 35-43-2-1(2). Pierce expressly requires that the Class

       B felony robbery conviction be reduced in these circumstances to a Class C

       felony. 761 N.E.2d at 830.


[20]   We next consider Street’s argument that his conviction under Count IV—

       battery, as a Class C felony—must be vacated in light of his conviction under

       Count III. As with the State above, here Street is partly right: his conviction

       for battery, as a Class C felony, cannot stand, but it cannot stand because the

       enhancement under Count IV is based on the same facts that resulted in his

       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 12 of 17
       enhancement under Count I, burglary as a Class A felony. As our supreme

       court explained in Campbell: “Although the battery information alleged use of a

       deadly weapon and the burglary information alleged serious bodily injury, the

       basis for the elevation of both crimes was the same” injury to the victim—

       namely, Corn being shot by Street’s use of the deadly weapon. 622 N.E.2d at

       500. Accordingly, as in Campbell, here the Class C felony conviction must be

       reduced to a Class B misdemeanor. Id.; see I.C. § 35-42-2-1(a).


[21]   In sum, we reverse Street’s convictions under Counts II, III, and IV. We

       remand with instructions that the trial court: vacate Street’s conviction under

       Count II; reinstate Street’s conviction under Count III for robbery, as a Class C

       felony; and reduce Street’s conviction under Count IV to battery, as a Class B

       misdemeanor. On remand, the court shall resentence Street accordingly.


                                       Issue Two: Fundamental Error

[22]   We next consider Street’s argument that his convictions must be reversed

       because the trial court committed fundamental error when it permitted the jury

       to hear the video recordings of Fine and Armstead, who both referenced

       Street’s prior incarceration. Because Street did not object to the admission of

       this evidence, “we will only reverse the trial court if the trial court committed

       error that was . . . a substantial, blatant violation of due process that must be so

       prejudicial to the rights of a defendant as to make a fair trial impossible.”

       Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015) (quotations omitted)..




       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 13 of 17
[23]   There is no question that it was error for the jury to hear of Street’s irrelevant

       prior convictions. As the Indiana Supreme Court has stated: “evidence of a

       prior conviction is as prejudicial as evidence can get . . . .” Thompson v. State,

       690 N.E.2d 224, 235 (Ind. 1997). Seizing on this, Street asserts that “we cannot

       say the jury’s decision was not based on knowing Mr. Street had previously

       been incarcerated for committing a criminal offense.” Appellant’s Br. at 6

       (emphasis added).


[24]   But we can say exactly that. While Street did not object to the admission of the

       erroneous statements, he did request an admonishment that the jury disregard

       them, and the trial court admonished the jury accordingly. “We presume the

       jury followed the trial court’s admonishment and that the excluded testimony

       played no part in the jury’s deliberation.” Francis v. State, 758 N.E.2d 528, 532

       (Ind. 2001). If we must presume the jury followed an admonishment, then we

       cannot assume, as Street does, that the jury considered the erroneous statements

       covered by the admonishment.


[25]   Moreover, the erroneously admitted statements were isolated, passing

       comments in a voluminous record. Cf. Rosales, 23 N.E.3d at 16 (holding that,

       but for the State’s “repeated insistence” on an erroneous statement of the mens

       rea necessary to convict, “the error in this case likely would not rise to the level

       of fundamental”). Juxtaposed against those passing comments is the thorough

       and descriptive testimony of Corn, Benjamin, and numerous officers and other

       witnesses. Those witnesses, among other things, personally identified Street as

       the invader or as the possessor of the handgun or determined that the handgun

       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 14 of 17
       found on Street’s person had been used in the home invasion. In light of that

       significant and incriminating testimony, we cannot say that the error here was

       so substantial and blatant as to have made a fair trial impossible. Therefore, no

       fundamental error occurred, and we affirm Street’s convictions.


                    Issue Three: Sufficient Evidence of Neglect of a Dependent

[26]   Street also asserts that the State failed to present sufficient evidence to support

       his conviction for neglect of a dependent, as a Class D felony. Our standard for

       reviewing the sufficiency of the evidence needed to support a criminal

       conviction is as follows:

               First, we neither reweigh the evidence nor judge the credibility of
               witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
               Second, we only consider “the evidence supporting the judgment
               and any reasonable inferences that can be drawn from such
               evidence.” Id. (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind.
               2008)). A conviction will be affirmed if there is substantial
               evidence of probative value supporting each element of the
               offense such that a reasonable trier of fact could have found the
               defendant guilty beyond a reasonable doubt. Id. “It is the job of
               the fact-finder to determine whether the evidence in a particular
               case sufficiently proves each element of an offense, and we
               consider conflicting evidence most favorably to the trial court’s
               ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)
               (citations omitted).


       Willis v. State, ___ N.E.3d ___, slip op. at 3 (Ind. 2015).


[27]   Pursuant to Indiana Code Section 35-46-1-4(a), to show that Street had

       committed neglect of a dependent, as a Class D felony, the State was required


       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 15 of 17
       to show beyond a reasonable doubt that Street, “having the care of a dependent,

       whether assumed voluntarily or because of a legal obligation,” knowingly or

       intentionally placed the dependent in a situation that endangered the

       dependent’s life or health. As alleged here, the State needed to show that Street

       had care of J.T. and knowingly or intentionally placed J.T. in a situation that

       endangered J.T. Street’s only argument on appeal is that the State did not show

       that Street voluntarily assumed care of J.T.


[28]   The State presented sufficient evidence to support Street’s conviction. The

       State showed that Street allowed J.T. to sleep in Street’s bed. And, while J.T.

       slept in that bed, Street had a loaded firearm inside a pillow case on the bed. A

       reasonable trier of fact could conclude that, during that time, Street had

       voluntarily assumed care of J.T. while also placing J.T. in an endangering

       situation. Thus, we affirm Street’s conviction for neglect of a dependent, as a

       Class D felony.


                              Issue Four: Habitual Offender Enhancement

[29]   Finally, we address Street’s contention that the trial court erred when it ordered

       Street’s habitual offender enhancement to be an independent, thirty-year

       sentence consecutive to the sentences imposed for Street’s offenses. The State

       concedes that the trial court erred in this respect. “A habitual offender finding

       does not constitute a separate crime nor does it result in a separate sentence[;]

       rather[,] it results in a sentence enhancement imposed upon the conviction of a

       subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001). Thus,



       Court of Appeals of Indiana | Opinion 21A04-1410-CR-458 | April 22, 2015   Page 16 of 17
       we remand with instructions that the court properly impose Street’s habitual

       offender conviction as a sentence enhancement.


                                                   Conclusion
[30]   In sum, we reverse Street’s convictions under Counts II, III, and IV, and we

       reverse the trial court’s imposition of a freestanding sentence for the habitual

       offender enhancement. We remand with instructions that the trial court:

       vacate Street’s conviction under Count II; reinstate Street’s conviction under

       Count III for robbery, as a Class C felony; reduce Street’s conviction under

       Count IV to battery, as a Class B misdemeanor; and resentence Street,

       including properly applying Street’s habitual offender enhancement against

       him. On all other issues, we affirm.


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


       Baker, J., and Friedlander, J., concur.




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