MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Jan 12 2016, 8:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                      Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Armando Gonzalez, Jr.,                                   January 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1504-CR-133
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff.                                      Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1311-FB-131



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016    Page 1 of 8
[1]   Armando Gonzalez appeals the consecutive sentences imposed for the crimes

      of which he was convicted. However, the State presents an issue on cross-

      appeal which we find dispositive: Whether the trial court erred when it reduced

      Gonzalez’s convictions of robbery and criminal confinement from Class B

      felonies to Class C felonies.


[2]   We remand for resentencing consistent with this opinion.


                                 Facts and Procedural History
[3]   On the evening of November 3, 2013, Gonzalez, Antoine McDuffie, Davon

      Crenshaw, and Montrail Williams were drinking and smoking marijuana at

      Gonzalez’s apartment. During the evening, the group passed around and

      examined three firearms, one of which was a revolver with a red laser

      attachment. Later in the evening, Gonzales told the group he needed money

      and had a potential burglary target. The group had a conversation about which

      of three houses they intended to burglarize.


[4]   The following day, Gonzales woke up the group and they headed to the chosen

      victims’ house. At around 4:45 a.m., Cynthia Contreras saw an intruder

      walking through her home towards her bedroom. The intruder put a gun to

      Contreras’ head. She could not identify the intruder because he had a mask

      covering his face. Contreras’ daughter, Brenda Fernandez, woke up seeing a

      second intruder with a gun to her own head. Fernandez thought she heard the

      voice of someone she knew as “Junior,” which is Gonzalez’s nickname. (Tr. at

      173.) The intruders demanded “gold and dope” from Contreras and

      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016   Page 2 of 8
      Fernandez. (Id. at 96.) The women told the intruders there was no gold or

      dope in the house, however one of the men began searching the bedroom.


[5]   Soon thereafter, in another room of Contreras’ house, the intruders encountered

      Thaly Silvestre, who was seven months pregnant. Silvestre awoke to an

      intruder pointing a gun with a red laser attachment at her head. A third masked

      intruder grabbed a nearby phone cord, wrapped Silvestre’s hands and feet, and

      brought Silvestre to where Contreras and Fernandez were in the house.


[6]   The first intruder, with the gun still on Contreras, demanded her purse, which

      was located in the adjoining living room. The first intruder walked Contreras

      to the adjoining living room and there Contreras saw the other two intruders;

      one was disconnecting her X-Box from her television. Contreras retrieved her

      purse and gave the first intruder $350.00 in cash from her purse. One of the

      intruders also stole a bottle of Vicodin from Contreras’ dresser. The four

      intruders began to leave, telling the victims that they would return to kill them if

      they called the police.


[7]   Contreras reported the incident to police. Gonzales’ girlfriend allowed officers

      to enter their apartment where police discovered three guns, one of which had a

      red laser attachment; masks; gloves; a pill bottle, and an Xbox with a serial

      number matching Contreras’ Xbox. The police arrested Gonzalez, who

      admitted to participation in the burglary of Contreras’ house.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016   Page 3 of 8
[8]    The State charged Gonzalez with five Class B felonies: robbery while armed

       with a deadly weapon, 1 burglary, 2 criminal confinement, 3 conspiracy to commit

       burglary, 4 and unlawful possession of a firearm by a serious violent felon. 5 A

       jury found Gonzalez guilty of the first four charges. In a second stage of the

       trial, the court found Gonzalez guilty of unlawful possession of a firearm by a

       serious violent felon.


[9]    On March 12, 2015, over the State’s objection, the trial court reduced the

       robbery and criminal confinement convictions to Class C felonies because of

       double jeopardy concerns. It sentenced Gonzalez to eight years for each Class

       C felony and ordered the sentences served consecutively, for a total of sixteen

       years. The trial court then sentenced Gonzalez to fifteen years for each Class B

       felony to be served consecutively, for a total of forty-five years. Gonzalez’s

       aggregate sentence was sixty-one years.


                                           Discussion and Decision
[10]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” We review de novo whether

       a defendant’s convictions violate this provision. Spears v. State, 735 N.E.2d




       1
           Ind. Code § 35-42-5-1 (2013).
       2
           Ind. Code § 35-43-2-1(1) (2013).
       3
           Ind. Code § 35-42-3-3(b)(2) (2013).
       4
           Ind. Code § 35-43-2-1(1) (2013) (burglary); Ind. Code § 35-41-5-2 (2013).
       5
           Ind. Code § 35-47-4-5(c) (2013).


       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016   Page 4 of 8
       1161, 1166 (Ind. 2000), reh’g denied. In Richardson v. State, 717 N.E.2d 32 (Ind.

       1999), our Indiana Supreme Court held convictions of two crimes violate the

       prohibition against double jeopardy if they can be considered the same offense;

       that is, if the statutory elements of the crimes charged or the actual evidence

       used to convict a defendant also establish all other essential elements of the

       other crime. Id. at 50-54.


[11]   The jury returned guilty verdicts for “Count I, Robbery While Armed With a

       Deadly Weapon, a Class B Felony; Count II, Burglary, a Class B Felony;

       Count III, Criminal Confinement, a Class B Felony; and Count IV, Conspiracy

       to Commit Burglary, a Class B Felony.” (App. at 135.) In addition, Gonzalez

       was convicted of “Unlawful Possession of a Firearm, a Class B Felony pursuant

       to an agreed upon bench trial.” (Id.) In its sentencing order, the trial court

       stated:

                 Court indicates it is the Court’s belief that there may be a
                 potential Richardson issue in this case with respect to the
                 enhancement of counts by the use of a deadly weapon. For that
                 reason, the Court revises the Judgments of Conviction to reflect
                 that Defendant is now convicted of Count I, Robbery, a Class C
                 Felony; Count II, Burglary, a Class B Felony; Count III,
                 Criminal Confinement, a Class C Felony; and Count IV,
                 Conspiracy to Commit Burglary, a Class B Felony; and Count V,
                 Unlawful Possession of a Firearm by a Serious Violent Offender,
                 a Class B Felony.


       (Id. at 136) (emphasis added). The trial court noted the State’s objection to the

       revision of the robbery and criminal confinement counts based on an alleged


       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016   Page 5 of 8
       Richardson issue. We must determine whether Gonzalez’s conviction of Class B

       felony unlawful possession of a firearm by a serious violent offender required

       the trial court to reduce Gonzalez’s convictions of robbery and criminal

       confinement from Class B to Class C felonies.


[12]   Under the “actual evidence” test, we must examine the evidence presented at

       trial to determine “whether each challenged offense was established by separate

       and distinct facts.” Bruce v. State, 749 N.E.2d 587, 590 (Ind. Ct. App. 2001)

       (quoting Richardson, 717 N.E.2d at 53), trans. denied. To demonstrate two

       offenses are the same, there must be a reasonable possibility the facts used by

       the jury to establish the essential elements of one offense were also used to

       establish the essential elements of the second offense. Id. There must be more

       than a remote or speculative possibility that the same facts were used. Id. To

       determine what facts were used, we consider the evidence, charging

       information, final jury instructions, and arguments of counsel. Id.


[13]   The police found three guns in Gonzalez’s home, and the victims testified three

       of the intruders used guns. One of the intruders pointed a gun with a “metal

       flashlight on top,” (Tr. at 91), at Contreras’ head while she gave him money

       from her purse, accomplishing the crime of Class B felony robbery while armed

       with a deadly weapon. 6 Another intruder held a “gun that had a red laser on




       6
        Based on the charging information, the State had to prove “ARMANDO GONZALEZ, JR., Montrail
       Williams, Matthew Allen, Antoine McDuffie, and Davon Crenshaw, and they and each of them, did, while
       armed with a deadly weapon, to wit: firearm, knowingly took property from another person, to wit: U.S.
       Currency from Cynthia Contreras, by putting any person in fear[.]” (App. at 14) (emphasis in original).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016         Page 6 of 8
       it,” (id. at 235), to Silvestre’s head and tied her hands and feet; thus

       accomplishing the crime of Class B felony criminal confinement. 7 Another

       intruder possessed a firearm while unhooking the Xbox from Contreras’

       television. Based on the evidence presented, the jury might not have relied on

       the same evidence to convict Gonzalez 8 of all three crimes because three

       different guns were used and the victims’ testimony permitted an inference the

       guns were different. Taylor v. State, 929 N.E.2d 912, 922 (2010) (three

       simultaneous convictions of possession of a handgun by a serious violent felon

       did not violate Indiana’s prohibition against double jeopardy because Taylor

       had three guns), trans. denied. Therefore, the trial court erred when it reduced

       Gonzalez’s convictions of robbery and criminal confinement from Class B

       felonies to Class C felonies. 9


                                                   Conclusion
[14]   The trial court erred when it reduced Gonzalez’s convictions for robbery and

       criminal confinement from Class B to Class C felonies based on double




       7
        Based on the charging information, the State had to prove “ARMANDO GONZALEZ, JR., Montrail
       Williams, Matthew Allen, Antoine McDuffie, and Davon Crenshaw, and they and each of them, did, while
       armed with a deadly weapon, to wit: firearm, knowingly confine another person, to wit: one Thaly Silvestre,
       without out the consent of Thaly Silvestre.” (App. at 14) (emphasis in original).
       8
         Gonzalez, Crenshaw, and Williams were tried together and all were convicted under the accomplice
       liability theory.
       9
        The charging information for the Class B burglary and Class B conspiracy to commit burglary charges did
       not include the requirement a firearm must have been used in the commission of the crime.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016            Page 7 of 8
       jeopardy concerns. Accordingly, we remand for resentencing with the

       convictions of robbery and criminal confinement as Class B felonies. 10


[15]   Remanded for resentencing consistent with the holding of this opinion.


       Crone, J., and Bradford, J., concur.




       10
         Because we hold the trial court improperly sentenced Gonzalez, we need not decide his argument alleging
       the improper imposition of consecutive sentences.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-CR-133| January 12, 2016          Page 8 of 8
