FOR PUBLICATION
                                                                        Aug 26 2014, 9:47 am




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

ANTHONY S. CHURCHWARD                          GREGORY F. ZOELLER
Leonard, Hammond, Thoma & Terrill              Attorney General of Indiana
Fort Wayne, Indiana
                                               RYAN D. JOHANNINGSMEIER
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

LAMONT CARPENTER,                              )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )      No. 02A05-1309-CR-467
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                    APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable Wendy W. Davis, Judge
                            Cause No. 02D06-1302-FA-2


                                    August 26, 2014

                             OPINION - FOR PUBLICATION

MAY, Judge
        Lamont Carpenter appeals his convictions of five counts of Class A felony dealing in

cocaine;1 and one count each of Class B felony unlawful possession of a firearm by a serious

violent felon (“SVF”),2 Class C felony possession of a handgun with altered identifying

marks,3 and Class D felony possession of marijuana.4 He presents multiple issues for our

review, which we consolidate and restate as:

            1. Whether the trial court properly bifurcated Carpenter’s trial on the charge of

                unlawful possession of a firearm by an SVF;

            2. Whether the trial court abused its discretion by overruling Carpenter’s hearsay

                objection to State’s Exhibit 17, which contained multiple pieces of mail; and

            3. Whether Carpenter’s simultaneous convictions of unlawful possession of a

                firearm by an SVF and possession of a handgun with altered identifying marks

                exposed him to double jeopardy.

We affirm.

                          FACTS AND PROCEDURAL HISTORY

        On January 29, 2013, detectives from the Fort Wayne Police Department (“FWPD”)

searched Carpenter’s apartment pursuant to a valid search warrant issued on the basis that

Carpenter sold cocaine to a confidential informant (“CI”) for the FWPD three times. Each

sale involved approximately $1,200.00 worth of cocaine. During the search, FWPD found a



1
  Ind. Code § 35-48-4-1.
2
  Ind. Code § 35-47-4-5.
3
  Ind. Code § 35-47-2-18(2).
4
  Ind. Code § 35-48-4-11.

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semiautomatic pistol that was missing a metal strip containing the serial number. FWPD also

found around one hundred grams of both cocaine and marijuana, a spoon typically used to

consume cocaine, $1,400.00 cash, a scale with white residue, and multiple pieces of mail

addressed to Carpenter at the address being searched.

        On February 4, 2013, the State charged Carpenter with Class B felony unlawful

possession of a firearm by an SVF, Class C felony possession of a handgun with altered

identifying marks, Class D felony possession of marijuana, and five counts of Class A felony

dealing in cocaine. Carpenter filed a motion in limine to prevent reference to him as an SVF

during the first part of the bifurcated trial. The jury trial began on May 1, 2013. Carpenter

objected to a preliminary instruction that stated the jury may find him guilty if it found he

possessed a firearm in violation of Ind. Code § 35-47-4-5.5 The trial court overruled the

objection stating it would not prejudice Carpenter because the jury would not be told the

statute applied to serious violent felons.

        The trial court conducted a partially bifurcated6 trial and did not tell the jury Carpenter

was an SVF until the jury had already decided the other charges. The jury found Carpenter

guilty of all the charged offenses. The trial court ordered all of Carpenter’s sentences be

served concurrently.


5
 Ind. Code § 35-47-4-5 states in relevant part: “A serious violent felon who knowingly or intentionally
possesses a firearm commits unlawful possession of a firearm by a serious violent felon.”

6
  The bifurcation was “partial” because the jury was asked to determine whether Carpenter “unlawfully”
possessed a gun during the first phase, with all the other charges, and then was asked to determine during the
second phase whether he was an SVF. See Russell v. State, 977 N.E.2d 351, 354 (Ind. 2013) (defining the
process of partial bifurcation).

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                             DISCUSSION AND DECISION

       1.     Bifurcation of Unlawful Possession Charge

       “A trial court’s decision whether to bifurcate is subject to an abuse of discretion

standard.” Russell v. State, 997 N.E.2d 351, 354 (Ind. 2013) (quoting Shafer & Freeman

Lakes Envtl. Conservation Corp. v. Stichnotch, 877 N.E.2d 475, 481 (Ind. Ct. App. 2007),

trans. denied). One purpose of bifurcation is to keep prior offenses away from the jury

during the phase of determining guilt for the crimes charged. Id. If the knowledge of prior

offenses is kept from the jury then that purpose has been met and the defendant was not

prejudiced. Id. Carpenter argues that, because the jury received the statutory citation for

possession of a firearm by an SVF, his trial was not completely bifurcated, which prejudiced

him. We disagree.

       During the guilt phase, the trial court provided the following jury instruction regarding

possession of a firearm by an SVF:

       The crime of [p]ossession of a [f]irearm in [v]iolation of I.C. 35-47-4-5 is
       defined by statute as follows:

       A person who knowingly or intentionally possesses a firearm, commits
       [p]ossession of [f]irearm in [v]iolation of I.C. 35-47-4-5.

       To convict the Defendant . . ., the State must have proved each of the
       following elements:
       The Defendant, Lamont Carpenter,
       1.     knowingly or intentionally,
       2.     possessed,
       3.     a firearm.

(App. at 53.) Carpenter objected to the use of “I.C. 35-47-4-5,” which defines “serious


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violent felon” and “serious violent felony” and criminalizes such a felon’s possession of a

firearm. (Tr. at 24.) He asserted the jury might research what the statute was, or might ask or

assume what it means, and thereby become aware he was a serious violent felon.

       Jurors are presumed to follow the court’s instructions, Morgan v. State, 903 N.E.2d

1010, 1019 (Ind. Ct. App. 2009), trans. denied, and the trial court instructed the jurors they

were not allowed to “conduct research on [their] own.” (Tr. at 268.) When the jury asked

what the statute referred to, the judge stated “you have all the evidence and law applicable.”

(Id. at 536.) The jury’s question indicates it did not know the content of the statute or the

nature of Carpenter’s past offenses. Carpenter has not demonstrated he was prejudiced by

the partial bifurcation of his trial. See Russell, 997 N.E.2d at 354 (when the jury has no

knowledge of prior offenses, the defendant is not prejudiced).

       2.     Admissibility of Evidence

       We typically review allegations of error in the admission of evidence for an abuse of

discretion, which occurs only when the trial court’s ruling is “clearly against the logic, facts,

and circumstances presented.” Kindred v. State, 973 N.E.2d 1245, 1252 (Ind. Ct. App.

2012), trans. denied. We consider only the evidence in favor of the trial court’s ruling,

Sallee v. State, 777 N.E.2d 1204, 1210 (Ind. Ct. App. 2002), trans. denied, and we will not

reverse the decision to admit or exclude evidence if that decision is sustainable on any

ground. Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).

       Carpenter asserts the trial court abused its discretion when it admitted mail containing

his name and address because it was hearsay. It was not.

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       Hearsay is a statement (1) not made by the declarant while testifying at the trial or

hearing; and (2) offered to prove the truth of the matter asserted. Ind. Evid. R. 801. “To run

afoul of the hearsay rule the evidentiary purpose of the proffered statement must be the truth

of the matter asserted.” Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999).

       While this is an issue of first impression in Indiana, a majority of the courts from other

states that have considered the issue have held the prohibition against the admission of

hearsay is not violated when mail found during an investigation is introduced at trial to

demonstrate the defendant’s name and address were on mail found in a specific location. See

State v. Peek, 365 S.E.2d 320, 322 (N.C. Ct. App. 1988); Hernandez v. State, 863 So.2d 484,

486 (Fla. Dist. Ct. App. 2004), rev. denied; Shurbaji v. Com., 444 S.E.2d 549, 551 (Va. Ct.

App. 1994) (all finding mail introduced to show defendant had control of the premises was

not hearsay but merely circumstantial evidence that defendant stored property at the

residence).

       For example, in Peek, the State found mail addressed to Peek during a legal search of

Peek’s residence and introduced the mail at trial to prove Peek lived at the address. Peek

objected to the evidence as hearsay. The court ruled that mail makes no assertion and,

therefore, it was not hearsay. 365 S.E.2d at 322. The court reasoned that on its face, an

address and name on an envelope asserts nothing, and that the sender’s conduct in addressing

and mailing an envelope implies that the sender believes the addressee lives at that address.

Id.

       That reasoning leads us to conclude Carpenter’s mail was not hearsay. Carpenter

                                               6
objected to Exhibit 17 containing multiple pieces of mail addressed to “Lamont Carpenter” at

“5040 Madiera Dr. Apt. E, Fort Wayne, IN 46815-7349.” (State’s Ex. 17.) When

responding, the State said it was “not offering it to prove that this is a-if I may, a Parkview

Health Bill for a particular form and the utility company. It is offering it to show that there is

in fact an address[,]” referring to the address on the pieces of mail. (Tr. at 380.) As the mail

was used as circumstantial evidence along with other evidence to prove Carpenter stored

property at 5040 Madiera Drive Apt. E, it was not hearsay. See Peek, 365 S.E.2d at 322

(holding mail used to demonstrate possession of an apartment was not hearsay).

       3.      Double Jeopardy

        “No person shall be put in jeopardy twice for the same offense.” Ind. Const. art. I, §

14. Two or more offenses are the same 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.”

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Double jeopardy may be proven when

there is a “reasonable probability 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 the second offense.” Id. at 53. “[U]nder the Richardson actual evidence test, 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).

Carpenter was not subjected to double jeopardy because not all of the elements of both

                                                7
crimes were established based on the gun that was entered into evidence.

        Carpenter was convicted of possession of a firearm by an SVF and possession of a

handgun with altered identifying marks. To convict him of possession of a firearm by an

SVF, the State was required to prove Carpenter knowingly or intentionally possessed a

firearm while a serious violent felon. See Ind. Code § 35-47-4-5. To convict him of

possession of a handgun with altered identifying marks, the State had to prove Carpenter

possessed a handgun on which the serial number had been removed. See Ind. Code § 35-47-

2-18.

        Carpenter, an SVF, had constructive possession of a gun which also had altered

identifying marks. There are elements of each of these crimes that were not established by

the same evidence. The altered identifying marks on the handgun had no relevance to his

possession of a firearm while being an SVF, and Carpenter’s classification as an SVF had no

relevance to his conviction of possessing a handgun with altered identifying marks, because

it is illegal for anyone to possess a gun of that nature. Therefore, Carpenter was not

subjected to double jeopardy when he was convicted of both possession of a firearm by an

SVF and possession of a handgun with altered identifying marks. See Ho v. State, 725

N.E.2d 988, 993 (Ind. Ct. App. 2000) (holding that double jeopardy protections were not

violated because distinct evidentiary facts were used to prove armed robbery and carrying a

handgun without a license).

                                     CONCLUSION

        As the jury was not aware Carpenter was an SVF, he was not prejudiced by the partial

                                             8
bifurcation of his trial. Additionally, the trial court did not abuse its discretion in admitting

Exhibit 17 as it was not hearsay, and Carpenter was not subjected to double jeopardy when

he was convicted of possession of a firearm by an SVF and possession of a handgun with

altered identifying marks. Accordingly, we affirm.

       Affirmed.

KIRSCH, J., and BAILEY, J., concur.




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