MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                  Feb 27 2018, 10:48 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Katherine M. Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lewis Klayton Kratzer,                                   February 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         61A01-1707-CR-1680
        v.                                               Appeal from the Parke Circuit
                                                         Court
State of Indiana,                                        The Honorable Samuel A. Swaim,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         61C01-1601-F3-11



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018         Page 1 of 6
                                             Case Summary
[1]   Lewis Klayton Kratzer (“Kratzer”) was convicted of Attempted Robbery, as a

      Level 3 felony,1 and Unlawful Possession of a Firearm by a Serious Violent

      Felon (“SVF”), a Level 4 felony.2 Kratzer presents the sole issue of whether the

      Attempted Robbery conviction must be reduced to a Level 5 felony to avoid a

      double jeopardy violation,3 as the Attempted Robbery enhancement and the

      SVF conviction were based upon the same possession. We affirm in part,

      reverse in part, and remand with instructions.



                                   Facts and Procedural History
[2]   On January 12, 2016, a man later identified as Kratzer entered the Montezuma

      Quick Stop in Parke County, pointed a handgun at the clerk, and demanded

      money. When the clerk called out to her supervisor, Kratzer left the store.


[3]   Later that night, Terre Haute police officers were dispatched to investigate a

      report of a suspicious vehicle at the Red Roof Inn. As the officers approached

      the vehicle, the driver disregarded commands to stop and drove off.




      1
          Ind. Code § 35-42-5-1.
      2
          I.C. § 35-47-4-5(c).
      3
        Kratzer confines his argument to the Indiana Constitution and common law. The Fifth Amendment to the
      United States Constitution provides “[n]o person shall be … subject for the same offense to be twice put in
      jeopardy of life or limb[.] Under the Fifth Amendment, a defendant’s conviction upon multiple offenses will
      not be precluded by double jeopardy principles if each statutory offense requires proof of a fact the other does
      not. Blockburger v. United States, 284 U.S. 299, 302 (1932). Kratzer concedes that his convictions do not
      violate the Blockburger test.

      Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018             Page 2 of 6
      Eventually, the vehicle stopped and the driver and passenger both fled on foot.

      They were apprehended and arrested. Kratzer, the passenger, was wearing

      clothing like that worn by the would-be robber of the Montezuma Quick Stop.

      Inside the vehicle, there was a handgun.


[4]   Kratzer was charged with Attempted Robbery, as a Level 3 felony, and

      Unlawful Possession of a Firearm by a SVF, a Level 4 felony. A jury convicted

      Kratzer as charged; he received consecutive sentences of thirteen years and

      eight years, respectively. He now appeals.



                                 Discussion and Decision
[5]   To convict Kratzer of Attempted Robbery, the State was required to establish,

      beyond a reasonable doubt, that Kratzer engaged in conduct constituting a

      substantial step toward commission of the crime of Robbery. I.C. § 35-41-5-1.

      Robbery, as a Level 5 offense, is committed when one knowingly or

      intentionally takes property from another person by using or threating use of

      force or placing the person in fear. I.C. § 35-42-5-1. To elevate the offense to a

      Level 3 felony, as charged, the State was required to establish that Kratzer was

      armed with a deadly weapon. To convict Kratzer of Unlawful Possession of a

      Firearm by a SVF, the State was required to establish, beyond a reasonable

      doubt, that Kratzer, a serious violent felon, knowingly or intentionally

      possessed a firearm. I.C. § 35-47-4-5.




      Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018   Page 3 of 6
[6]   Article 1, Section 14 of the Indiana Constitution states, “[n]o person shall be

      put in jeopardy twice for the same offense.” Two offenses are the “same

      offense” in violation of Article 1, Section 14, if, with respect to either the

      statutory elements of the challenged offenses or the actual evidence used to

      convict, the essential elements of one challenged offense also establish the

      essential elements of another challenged offense. Richardson v. State, 717

      N.E.2d 32, 49-50 (Ind. 1999). To show that two challenged offenses are the

      “same offense” in a claim of double jeopardy, a defendant must demonstrate 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. at 53.


[7]   Additionally, ‘“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.”’ Guyton v.

      State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d

      826, 830 (Ind. 2002)). “These rules are sometimes referred to as Justice

      Sullivan’s categories because he first enumerated them in his concurring

      opinion in Richardson.” Zieman v. State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013).


[8]   One such category prohibits “[c]onviction and punishment for an enhancement

      of a crime where the enhancement is imposed for the very same behavior or

      harm as another crime for which the defendant has been convicted and

      punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring). This

      category is applicable in situations where the behavior supporting a conviction

      Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018   Page 4 of 6
       for one crime is the same behavior used to enhance a conviction for a separate

       crime. See id. Thus, if we determine that Kratzer’s offense of Attempted

       Robbery was enhanced based upon the same behavior or harm that is the basis

       of his Unlawful Possession of a Firearm by a SVF, the enhancement and

       separate conviction cannot both stand. In making this determination, we apply

       the same “reasonable possibility” standard applicable under the actual evidence

       test of Richardson. Zieman, 990 N.E.2d at 62.


[9]    Kratzer’s trial was bifurcated. During the SVF phase, the State moved to

       incorporate all the evidence from the first phase and submitted a certified

       document relative to Kratzer’s prior felony conviction. Thereafter, the

       prosecuting attorney presented the following argument to the jury:


               Just briefly, Judge. No different from the last segment of the
               trial. Start with all the give me’s in this case it’s pretty easy. But
               we’ll go from one, two, three, four. The defendant. You’ve
               already pretty much decided that by your prior verdict. Did
               knowingly and possessed [sic] a firearm, which you’ve already
               determined by the Armed Robbery conviction with a Deadly
               Weapon. And he is admitting and stipulating too that he has the
               prior Residential Burglary conviction which qualifies him under
               that particular code section. Nothing further, Judge.


       (Tr. Vol. II, pg. 218.)


[10]   It is apparent that the prosecuting attorney invited the jury to rely on evidence

       that Kratzer had a gun during the attempted robbery to convict Kratzer of

       Possession of a Firearm by a SVF. There is a reasonable possibility that the



       Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018   Page 5 of 6
       jury did so. The same conduct cannot permissibly support both the

       enhancement and form the basis of a separate crime.


[11]   The proper remedy for a double jeopardy violation was explained in Zieman:


               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. In the alternative,
               a reviewing court may vacate one of the convictions to eliminate
               a double jeopardy violation. In making that determination, we
               must be mindful of the penal consequences that the trial court
               found appropriate.


       990 N.E.2d at 64 (quoting McCann v. State, 854 N.E.2d 905, 915 (Ind. Ct. App.

       2006)). In this case, the violation is remedied by vacating the enhancement of

       Kratzer’s Attempted Robbery conviction.



                                               Conclusion
[12]   We remand with instructions to the trial court to reduce Kratzer’s Attempted

       Robbery conviction from a Level 3 felony to a Level 5 felony and sentence him

       accordingly.


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


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018   Page 6 of 6
