MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         Dec 17 2015, 8:19 am
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
Donald R. Shuler                                        Gregory F. Zoeller
Barkes, Kolbus, Rife & Shuler, LLP                      Attorney General of Indiana
Goshen, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Montrail Williams,                                      December 17, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A04-1505-CR-406
        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-132



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015         Page 1 of 24
[1]   Appellant-Defendant Montrail Williams, together with four other individuals,

      planned a burglary, which they completed on the morning of November 4,

      2013. During the commission of the burglary, Williams and his cohorts entered

      the victims’ residence, forced two of the victims to kneel on the ground at

      gunpoint, tied another to a chair, and took property belonging to the victims.

      Williams was subsequently convicted of Class C felony robbery, Class B felony

      burglary, Class C felony criminal confinement, Class B felony conspiracy to

      commit burglary, and Class B felony possession of a firearm by a serious violent

      felon. He was sentenced to an aggregate term of sixty-eight years, with fifty-five

      years executed and thirteen years suspended to probation.


[2]   On appeal, Williams contends that the evidence is insufficient to sustain his

      convictions, that his convictions for burglary and conspiracy to commit

      burglary violate the prohibitions against double jeopardy, and that his sentence

      is inappropriate. We affirm.



                            Facts and Procedural History
[3]   In November of 2013, Cynthia Contreras lived in a mobile home in Goshen

      with her husband, Jose; her daughter, Brenda Fernandez; and her daughter-in-

      law, Thaly Silvestre. Three minor children also lived in the mobile home.


[4]   On the morning of November 4, 2013, Contreras’s husband left for work at

      approximately 5:20. After Contreras’s husband left for work, Williams,

      Antoine McDuffie, Davon Crenshaw, and Armando Gonzalez, Jr. acted on an


      Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 2 of 24
      agreement to break into the mobile home. Upon breaking into the mobile

      home, the men concealed their identities by wearing “hoodie[s]”, masks on

      their faces, and gloves on their hands. Tr. p. 361. They were armed with at

      least three guns and carried flashlights. At the time of the break-in, the mobile

      home was occupied by Contreras, Fernandez, and the three children. Silvestre,

      who was pregnant, arrived home during the break-in.


[5]   The men forced Contreras and Fernandez to kneel down at gunpoint. The men

      asked Contreras for “gold and dope.” Tr. p. 362. When Contreras indicated

      that the women did not have any gold or dope the men got upset and told

      Contreras that they thought she was lying. At some point, the men tied up

      Silvestre, who was approximately seven months pregnant. The men also

      threatened to kill everyone in the trailer if anyone called the police. The

      women were all scared for their safety as well as the safety of the children.


[6]   Upon leaving the mobile home, the men stole an X-Box gaming system, a few

      X-Box games, $350.00 from Contreras’s purse, and Contreras’s pain

      medication. Once certain the men were gone, Silvestre freed herself.

      Sometime later, the women called the police.


[7]   Fernandez subsequently told the police that she thought she recognized the

      voice of one of the intruders as Gonzalez, the boyfriend of someone with whom

      she worked. Fernandez identified where her co-worker lived with Gonzalez.

      Fernandez also informed police that she had previously seen Gonzalez with

      Crenshaw.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 3 of 24
[8]    When members of the Goshen Police Department arrived at the apartment

       identified by Fernandez, they encountered Williams, Crenshaw, and Matthew

       Allen. The police were eventually allowed inside the apartment and, after

       receiving a search warrant, recovered the X-Box gaming system, the X-Box

       games, and a pill bottle containing pills. Officers also recovered two bags

       containing a bandana, gloves, dark clothing, a ski mask, and three loaded

       handguns. Williams’s DNA was subsequently recovered from the ski mask.


[9]    Police later encountered McDuffie, who was carrying a flashlight and whose

       shoes matched the shoe pattern found at the crime scene. When questioned

       about the robbery, McDuffie stated, “Man, I just drove.” Tr. p. 159. McDuffie

       indicated to the investigating officer that he, Crenshaw, Williams, and

       Gonzalez planned and committed the burglary and robbery. Gonzalez

       subsequently admitted to participating in the burglary and robbery.


[10]   In addition, at trial, Allen testified that he and the other men had been “hanging

       out” at Gonzalez’s apartment drinking and smoking marijuana on the night

       before the crime was committed. Tr. p. 838. Allen further testified that while

       drinking and smoking marijuana, he had heard Gonzalez, McDuffie, and the

       other men talk about breaking into and robbing a home. Allen also observed

       the men passing around three handguns. Allen later observed the men dress in

       dark jackets and hooded sweatshirts and leave the apartment at approximately

       4:30 a.m. on November 4, 2013.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 4 of 24
[11]   On November 12, 2013, Appellee-Plaintiff the State of Indiana (the “State”)

       charged Williams with Count I, Class B felony robbery while armed with a

       deadly weapon; Count II, Class B felony burglary; Count III, Class B felony

       criminal confinement; Count IV, Class B felony conspiracy to commit burglary;

       and Count V, Class B felony unlawful possession of a firearm by a serious

       violent felon. Williams’s jury trial began on February 2, 2015, after which the

       jury found Williams guilty of Counts I through IV. Williams waived his right

       to a jury trial on Count V. On March 2, 2015, the trial court found Williams

       guilty of Count V.


[12]   On April 16, 2015, Williams filed a petition asking the trial court to reconsider

       its guilty finding on Count V. The trial court subsequently denied Williams’s

       petition. The trial court also entered an amended judgment, reducing

       Williams’s convictions in Counts I and III from Class B felonies to Class C

       felonies. The amended judgment reflected that Williams was convicted of

       Count I, Class C felony robbery; Count II, Class B felony burglary; Count III,

       Class C felony Criminal Confinement; Count IV, Class B felony conspiracy to

       commit burglary; and Count V, Class B felony unlawful possession of a firearm

       by a serious violent offender.


[13]   In sentencing Williams, the trial court found the following mitigating factors:

       Williams’s age, the statements made by Williams and Williams’s counsel, and

       Williams’s good conduct during the course of the trial in relation to one of

       Williams’s co-defendants. The trial court also found the following aggravating

       factors: Williams’s criminal history; the unsuccessful nature of prior attempts to

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 5 of 24
       rehabilitate Williams; the fact that there were multiple crimes committed by

       multiple perpetrators against multiple victims, one of the victims was pregnant,

       and three of the victims were children; and Williams is considered a high risk to

       reoffend. Finding that the aggravating factors outweighed the mitigating

       factors, the trial court imposed the following sentence: Count I, eight years,

       with seven years executed and one year suspended to probation; Count II,

       twenty years, with sixteen years executed and four years suspended to

       probation; Count III, eight years, with seven years executed and one year

       suspended to probation; Count IV, twenty years, with sixteen years executed

       and four years suspended to probation; and Count V, twenty years, with sixteen

       years executed and four years suspended to probation. The trial court ordered

       that the sentences for each count should run consecutively for an aggregate

       sentence of sixty-eight years, with fifty-five years executed and thirteen years

       suspended to probation. The trial court also ordered that Williams’s sentence

       in the instant matter should be served consecutively to Williams’s sentence in

       Cause Number 20D02-1010-FB-25, for which Williams had been on probation

       when he committed the underlying offenses. This appeal follows.



                                 Discussion and Decision
                               I. Sufficiency of the Evidence
[14]   Williams contends that the evidence is insufficient to sustain his convictions for

       robbery, burglary, criminal confinement, conspiracy to commit burglary, and

       unlawful possession of a firearm by a serious violent felon.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 6 of 24
               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses, Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002),

       as the jury, acting as the trier-of-fact, is “‘free to believe whomever they wish.’”

       Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008) (quoting McClendon v.

       State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996)).


[15]   “[A] conviction may be based purely on circumstantial evidence.” Hayes v.

       State, 876 N.E.2d 373, 375 (Ind. Ct. App. 2007) (citing Moore v. State, 652

       N.E.2d 53, 55 (Ind. 1995)), trans. denied. “‘On appeal, the circumstantial

       evidence need not overcome every reasonable hypothesis of innocence.’” Id.


       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 7 of 24
       (quoting Moore, 652 N.E.2d at 55). “It is enough if an inference reasonably

       tending to support the conviction can be drawn from the circumstantial

       evidence.” Id. (citing Moore, 652 N.E.2d at 55). Thus, where circumstantial

       evidence is used to establish guilt, “‘the question for the reviewing court is

       whether reasonable minds could reach the inferences drawn by the jury; if so,

       there is sufficient evidence.’” Klaff, 884 N.E.2d at 274-75 (quoting Maxwell v.

       State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000)).


[16]   Further, Indiana Code section 35-41-2-4 provides that “[a] person who

       knowingly or intentionally aids, induces, or causes another to commit an

       offense commits that offense” himself.

               In determining whether there was sufficient evidence for
               purposes of accomplice liability, we consider such factors as: 1)
               presence at the scene of the crime; 2) companionship with
               another at the scene of the crime; 3) failure to oppose
               commission of the crime; and 4) course of conduct before,
               during, and after occurrence of the crime. [ ] A defendant’s mere
               presence at the crime scene, or lack of opposition to a crime,
               standing alone, is insufficient to establish accomplice liability.
               Tobar v. State, 740 N.E.2d 109, 112 (Ind. 2000). Flight shows
               consciousness of guilt. State v. Torphy, 217 Ind. 383, 387-88, 28
               N.E.2d 70, 72 (1940).

               These factors may be considered in conjunction with a
               defendant’s course of conduct before, during, and after the crime,
               and a defendant’s companionship with the one who commits the
               crime. Id. Furthermore, accomplice liability applies to the
               contemplated offense and all acts that are a probable and natural
               consequence of the concerted action. Wieland v. State, 736
               N.E.2d 1198, 1202 (Ind. 2000). Moreover, an accomplice is


       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 8 of 24
               equally culpable as the one who commits the actual crime. Hauk
               v. State, 729 N.E.2d 994, 998 (Ind. 2000).


       Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. denied. It is not

       necessary for Williams to have participated in every element of the crime under

       a theory of accomplice liability. Id. (citing Bruno v. State, 774 N.E.2d 880, 882

       (Ind. 2002)).


                                                A. Robbery
[17]   In November of 2013, Indiana Code section 35-42-5-1 provided as follows: “A

       person who knowingly or intentionally takes property from another person or

       from the presence of another person: (1) by using or threatening the use of force

       on any person; or (2) by putting any person in fear; commits robbery, a Class C

       felony.” Thus, in order to convict Williams of robbery, the State was required

       to prove that Williams knowing or intentionally took property from the victims

       by threating the use of force or by putting the victims in fear.


[18]   In arguing that the evidence is insufficient to sustain his robbery conviction,

       Williams claims that because none of the victims identified him as one of the

       perpetrators, the State failed to prove his involvement in the robbery beyond a

       reasonable doubt, but instead only proved that there was a possibility that he

       participated in the robbery. We disagree.


[19]   Allen testified that on the night before the robbery, he was “hanging out” with

       Gonzalez, Williams, Crenshaw, and McDuffie and heard the men discussing a

       plan to break into and rob a home. Tr. p. 838. Allen also testified that he

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 9 of 24
       observed the men passing around three handguns and that he later observed

       Gonzalez, Williams, Crenshaw, and McDuffie dress in dark jackets and

       hooded sweatshirts before leaving the apartment at approximately 4:30 a.m. on

       November 4, 2013.


[20]   The State presented evidence that the perpetrators were armed with at least

       three loaded handguns, wore dark clothing, and covered their faces with masks

       during the commission of the crimes. The perpetrators forced two of the

       victims to kneel at gunpoint and tied another to a chair. They put the victims in

       fear for their safety as they threatened to come back and kill everyone if anyone

       called the cops. Upon leaving the residence, the perpetrators took an X-Box

       gaming system, a few X-Box games, $350.00 from Contreras’s purse, and

       Contreras’s pain medication. Williams’s DNA was subsequently recovered

       from a black ski mask which was recovered from Gonzalez’s apartment with

       the stolen property and other dark clothing. When, during the course of their

       investigation, police arrived at the apartment, Williams was present and was

       playing games on the stolen X-Box gaming system. One of the victims

       informed police that she recognized one of the perpetrators as Gonzalez.


[21]   The above-stated evidence is sufficient to prove that Williams participated in

       the robbery. The State presented both circumstantial evidence and DNA

       evidence to prove Williams’s participation. Upon review, we conclude that the

       DNA evidence considered with Williams’s actions prior to the crime; his

       actions after the commission of the crime; and his companionship, both before

       and after commission of the robbery, with individuals who admitted to

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 10 of 24
       committing the crime is sufficient to prove that Williams was an active

       participant in the commission of the robbery. Furthermore, even if the evidence

       were to be found to fall short of proving that Williams was an active participant

       in the commission of the robbery, Williams can nonetheless be held culpable

       because the evidence, at the very least, proves that he was an accomplice to the

       commission of the robbery. See Tuggle, 9 N.E.3d at 736.


                                                B. Burglary
[22]   In November of 2013, Indiana Code section 35-43-2-1 provided as follows: “A

       person who breaks and enters the building or structure of another person, with

       intent to commit a felony in it, commits burglary, a Class C felony. However,

       the offense is: (1) a Class B felony if: (A) it is committed while armed with a

       deadly weapon or (B) the building or structure is a: (i) dwelling; or (ii) structure

       used for religious worship[.]” Thus, in order to convict Williams of burglary,

       the State was required to prove that Williams broke into the building of another

       with the intent to commit a felony, i.e., robbery, therein and that Williams was

       either armed with a deadly weapon, i.e., a handgun, or that the building was a

       dwelling.


[23]   In arguing that the evidence is insufficient to sustain his burglary conviction,

       Williams again claims that because none of the victims identified him as one of

       the perpetrators, the State failed to prove his involvement in the burglary

       beyond a reasonable doubt, but instead only proved that there was a possibility

       that he participated in the burglary. Again, we disagree. For the same reasons


       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 11 of 24
       discussed above, we conclude that the evidence presented at trial is sufficient to

       sustain Williams’s burglary conviction.


                                    C. Criminal Confinement
[24]   In November of 2013, Indiana Code section 35-42-3-3 provided as follows:

               (a) A person who knowingly or intentionally:

                       (1) confines another person without the other
                       person’s consent

                                                      ****

               commits criminal confinement.…

               (b) The offense of criminal confinement defined in subsection (a)
               is:

                       (1) a Class C felony if:

                                (A) the person confined or removed is
                                less than fourteen (14) years of age and
                                is not the confining or removing
                                person’s child;

                                (B) it is committed by using a vehicle; or

                                (C) it results in bodily injury to a person
                                other than the confining or removing
                                person; and

                       (2) a Class B felony if it:

                                (A) is committed while armed with a
                                deadly weapon[.]




       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 12 of 24
       Although the jury found Williams guilty of Class B felony criminal

       confinement, the trial court entered a judgment of conviction for Class C felony

       criminal confinement. In order to prove that Williams committed criminal

       confinement as a Class C felony, the State was required to prove that Williams

       knowingly or intentionally confined a person under the age of fourteen without

       the other person’s consent and that the person confined was not Williams’s

       child.


[25]   In arguing that the evidence is insufficient to sustain his conviction for criminal

       confinement, Williams again claims that because none of the victims identified

       him as one of the perpetrators, the State failed to prove his involvement in the

       confinement beyond a reasonable doubt, but instead only proved that there was

       a possibility that he participated in the confinement. Again, we disagree.


[26]   The State presented evidence that three of the victims were children under the

       age of fourteen. Nothing in the record suggests that any of the children had any

       relation to Williams. Thus, for the same reasons discussed above, we conclude

       that the evidence presented at trial is sufficient to sustain Williams’s conviction

       for criminal confinement.


                            D. Conspiracy to Commit Burglary
[27]   In November of 2013, Indiana Code section 35-41-5-2 provided that “A person

       conspires to commit a felony when, with intent to commit the felony, he agrees

       with another person to commit the felony. A conspiracy to commit a felony is

       a felony of the same class as the underlying felony.” Indiana Code section 35-

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 13 of 24
       41-5-2 further provided that “The state must allege and prove that either the

       person or the person with whom he agreed performed an overt act in

       furtherance of the agreement.” Here, the State alleged that Williams conspired

       to commit Class B felony burglary. As such, the State was required to prove

       that Williams agreed to commit the crime of burglary, as is defined above, and

       that Williams committed an overt act in furtherance of the agreement.


[28]   In arguing that the evidence is insufficient to sustain his conviction for

       conspiracy to commit burglary, Williams claims that the State failed to present

       evidence of any agreement to commit the burglary or an overt act committed by

       Williams in furtherance of the agreement. We disagree.


[29]   The State alleged that Williams committed the overt act of masking his face.

       The recovery of Williams’s DNA recovered from the ski mask found with the

       other dark clothing and some of the property taken from the victims is evidence

       that Williams did, in fact, commit the overt act of masking his face. The State

       also presented evidence that the men came up with the plan, i.e., the agreement,

       to commit the burglary on the night before they committed it. Thus, for the

       same reasons discussed above, we conclude that the evidence presented at trial

       is sufficient to sustain Williams’s conviction for conspiracy to commit burglary.


              E. Possession of a Firearm by a Serious Violent Felon
[30]   In November of 2013, Indiana Code section 35-47-4-5(c) provides that “A

       serious violent felon who knowingly or intentionally possesses a firearm

       commits unlawful possession of a firearm by a serious violent felon.” Indiana

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 14 of 24
       Code section 37-47-4-5(a) defined a “serious violent felon” as one who has been

       convicted of committing a serious violent felony or attempting to commit a

       serious violent felony in either Indiana or any other jurisdiction “in which the

       elements of the crime for which the conviction was entered are substantially

       similar to the elements of a serious violent felony.” Thus, in order to prove that

       Williams committed possession of a firearm by a serious violent felon, the State

       was required to prove that Williams possessed a firearm after having been

       convicted of committing a serious violent felony.


[31]   Williams does not contest the fact that he has previously been convicted of a

       serious violent felony. Instead, in arguing that the evidence is insufficient to

       sustain his conviction for criminal confinement, Williams again claims that

       because none of the victims identified him as one of the perpetrators, the State

       failed to prove his involvement in the break-in beyond a reasonable doubt.

       Williams alternatively argues that because there were five alleged perpetrators

       but only three alleged firearms, the State presented nothing more than

       speculation as to which of the men possessed the firearms. We disagree.


[32]   The State presented evidence that the men were in possession of three handguns

       on the night before the commission of the burglary. The victims testified to

       observing at least three handguns during the commission of the crime. Three

       handguns matching the descriptions of these guns were recovered from the

       perpetrators and Gonzalez’s apartment after the commission of the crime.

       Further, Gonzalez told investing officers that he was not armed during the

       robbery, and McDuffie told investigating officers that he “just drove.” Tr. p.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 15 of 24
       1059. These statements support the inference that of the five alleged

       perpetrators, Williams was one of the three who were armed with a handgun.


[33]   Again, because a conviction may be based purely on circumstantial evidence,

       the jury, acting as the trier of fact, is free to believe the witnesses as it sees fit,

       and we, acting as the reviewing court, will not reweigh the evidence or assess

       the credibility of the witnesses, we conclude that the evidence is sufficient to

       sustain Williams’s conviction for possession of a firearm by a serious violent

       felon. See Stewart, 768 N.E.2d at 435; Klaff, 884 N.E.2d at 274; Hayes, 876

       N.E.2d at 375.


                                       II. Double Jeopardy
[34]   Williams also contends that his convictions for Class B felony burglary and

       Class B felony conspiracy to commit burglary violate Indiana’s prohibitions

       against double jeopardy. “Whether convictions violate double jeopardy is a

       pure question of law, which we review de novo.” Ellis v. State, 29 N.E.3d 792,

       797 (Ind. Ct. App. 2015), trans. denied. 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.” “In Richardson v. State, 717 N.E.2d 32,

       49 (Ind. 1999), our supreme court held that two or more offenses are the ‘same

       offense’ in violation of Article 1, Section 14 of the Indiana Constitution, 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




       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 16 of 24
       establish the essential elements of another challenged offense.” James v. State,

       953 N.E.2d 1191, 1194 (Ind. Ct. App. 2011).


[35]   In the instant matter, Williams makes no claim under the statutory elements

       portion of the Richardson test. Instead, he claims that his convictions constitute

       double jeopardy under the “actual evidence” portion.

               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.
               [Richardson, 717 N.E.2d 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
               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

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 17 of 24
               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) (brackets in original).


[36]   Again, Williams argues on appeal that his convictions for burglary and

       conspiracy to commit burglary violate the actual evidence test set forth in

       Richardson. In making this argument, Williams acknowledges that the jury

       instruction for the conspiracy charge directs the jury to consider the masking of

       faces as the overt act in furtherance of the conspiracy. Williams argues,

       however, that “[b]y tying the conspiracy to commit burglary charge to the act of

       masking, once the jury concluded that [Williams] had participated in the

       burglary, it had no choice but to also find him guilty of the conspiracy to

       commit burglary charge.” Appellant’s Br. p. 19. Thus, Williams asserts that

       “[t]his results in a reasonable possibility that the jury relied on the same facts for

       both the burglary and conspiracy to commit burglary convictions, because the

       conspiracy to commit burglary offense cannot be established without

       considering the facts of the burglary itself.” Appellant’s Br. p. 19.


[37]   We disagree and observe that the Indiana Supreme Court has held that “a

       defendant may be convicted of both conspiracy to commit a felony and

       commission of the underlying felony.” Johnson v. State, 749 N.E.2d 1103, 1108

       (Ind. 2001) (citing Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied). A

       double jeopardy violation occurs only where the same evidence used to prove
       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 18 of 24
       the overt act committed in furtherance of the conspiracy also proves the

       commission of the underlying crime. Id. (citing Turnley v. State, 725 N.E.2d 87,

       91 (Ind. 2000); Griffin, 717 N.E.2d at 89), emphasis added.


[38]   Here, both the charging information and jury instructions specified that the

       overt act used to prove the conspiracy charge was the masking of faces. The

       charging information relating to the burglary charge reads as follows:


               The undersigned affiant swears that on or about the 4th day of
               November, 2013, at the County of Elkhart, State of Indiana,
               [Williams], [Allen], [McDuffie], [Crenshaw], and [Gonzalez],
               and they and each of them, did break and enter the dwelling of
               another person, to wit: Brenda Fernandez, with the intent to
               commit a felony therein, to wit: Theft, that is to knowingly or
               intentionally exert unauthorized control over property of another
               person with the intent to deprive the other person of any part of
               its value or use; all of which is contrary to the form of I.C. § 35-
               43-2-1(1)(B)(i) & § 35-41-2-4; contrary to the form of the statute
               in such cases made and provided; and, against the peace and
               dignity of the State of Indiana.


       Appellant’s App. p. 16. The charging information relating to the conspiracy to

       commit burglary charge reads as follows:

               The undersigned affiant swears that on or about the 4th day of
               November, 2013, at the County of Elkhart, State of Indiana, one
               [Williams] did, with the intent to commit a felony, agree with
               other persons, to wit: [Crenshaw], [Allen], [McDuffie], and
               [Gonzalez], to commit the felony Burglary, defined in I.C. § 35-
               43-2-1(1), as to break and enter the dwelling of another person
               with intent to commit a felony therein, and did engage in
               conduct constituting an overt act toward said Burglary by
               masking their faces; all of which is contrary to the form of I.C. §
       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 19 of 24
               35-41-5-2(a) & § 35-43-2-1(1)(B)(i); contrary to the form of the
               statute in such cases made and provided; and, against the peace
               and dignity of the State of Indiana.


       Appellant’s App. p. 16. The final jury instructions also reflected that the overt

       act relied on by the State to prove the conspiracy charge was Williams’s act of

       masking his face. As such, the record demonstrates that the conspiracy to

       commit robbery was alleged to have been consummated when Williams

       masked his face and the robbery was alleged to have taken place when Williams

       and his cohorts took property belonging to the victims from the victims’ home.

       The evidence relating to the masking of faces was separate evidence of that

       proffered to prove the burglary charge itself.


[39]   We find the facts of the instant matter to be similar to the facts presented in our

       opinion in James v. State, 953 N.E.2d 1191 (Ind. Ct. App. 2011). In James, we

       concluded that the defendant’s convictions for burglary and conspiracy to

       commit burglary did not violate the actual evidence test of the Indiana

       prohibitions against double jeopardy because the conspiracy was alleged to

       have been consummated when the defendant covered his face and the robbery

       charge was alleged to have taken place when the defendant and his cohorts took

       property from the victims’ home. Id. at 1194-95. We also find that this case is

       easily distinguishable from the Indiana Supreme Court’s decision in Johnson. In

       Johnson, neither the charging information nor the final jury instructions

       contained any mention of what overt acts the State relied upon in proving the

       conspiracy charge. 749 N.E.2d at 1109. The Indiana Supreme Court found


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       that in that case, there was a reasonable possibility that the evidence proving

       conspiracy to commit burglary also established the essential elements of the

       burglary charge. Id.


[40]   Similar to our conclusion in James, we conclude in the instant matter that there

       is not a reasonable possibility that the jury relied on all of the same evidence in

       finding Williams guilty of both burglary and conspiracy to commit burglary.

       The record clearly demonstrates that the State relied upon evidence proving that

       Williams masked his face to prove that he committed the overt act necessary to

       prove the conspiracy charge. This evidence was not necessary to prove any

       element of the burglary charge. As such, we conclude that Williams’s

       convictions for both Class B felony burglary and Class B felony conspiracy to

       commit burglary do not violate the prohibitions against double jeopardy.


                             III. Appropriateness of Sentence
[41]   Again, the trial court sentenced Williams to an aggregate term of sixty-eight

       years, with fifty-five years executed and 13 years suspended to probation.

       Williams contends on appeal that his sentence is inappropriate in light of the

       nature of his offenses and his character. Indiana Appellate Rule 7(B) provides

       that “The Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” In analyzing such claims, we “‘concentrate less on comparing the

       facts of [the case at issue] to others, whether real or hypothetical, and more on


       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 21 of 24
       focusing on the nature, extent, and depravity of the offense for which the

       defendant is being sentenced, and what it reveals about the defendant’s

       character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting

       Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The

       defendant bears the burden of persuading us that his sentence is inappropriate.

       Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[42]   With respect to the nature of Williams’s offenses, the record demonstrates that

       Williams and the other men burgled the residence of Contreras and her family.

       While in the residence, the men ordered Contreras and Fernandez to the

       ground at gunpoint and tied Silvestre, who was approximately seven months

       pregnant, to a chair. Children were present in the residence at the time of the

       burglary and theft. The men took an X-Box gaming system, some X-Box

       games, cash, and prescription medication from the residence. The men also

       threatened to come back and kill everyone in the trailer if anyone called the

       police.    The men’s actions placed Contreras, Fernandez, and Silvestre in fear

       for their own safety, as well as the safety of the children present in the

       residence. The records demonstrate that Williams participated in a very serious

       and violent course of events.


[43]   Further, we disagree with Williams’s assertion that the record indicates that he

       is of good character. Rather, we find that Williams is of troubling character.

       Review of the record indicates that since 2007, Williams has amassed a rather

       extensive criminal history which includes juvenile adjudications and both

       misdemeanor and felony convictions. As a juvenile, Williams was adjudicated

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       to be delinquent for committing what would have the following offenses if

       committed by an adult: Class A misdemeanor criminal mischief, Class A

       misdemeanor battery, Class A misdemeanor resisting law enforcement, Class D

       felony theft, and Class B felony burglary. William’s adult criminal history

       includes a prior conviction for misdemeanor operating a motor vehicle without

       ever receiving a license and two prior convictions for Class B felony burglary.

       It is also of note that Williams was on probation for his two prior adult

       convictions for Class B felony burglary when he committed the instant offenses.

       Williams’s criminal history, which appears to be escalating in seriousness,

       indicates that he has repeatedly engaged in criminal behavior. In addition,

       Williams’s failure to effectuate any positive change on his behavior as a result

       of his repeated interactions with the criminal justice system indicates an

       unwillingness by Williams to reform his behavior to conform to the rules of

       society.


[44]   In light of the facts surrounding the nature of Williams’s offenses and his

       character, we conclude that Williams has failed to meet his burden of

       persuading us that his aggregate sixty-eight-year sentence, of which thirteen

       years were suspended to probation, is inappropriate.



                                               Conclusion
[45]   In sum, we conclude that the evidence is sufficient to sustain Williams’s

       convictions, Williams’s convictions for burglary and conspiracy to commit



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       burglary do not violate the prohibitions against double jeopardy, and Williams’s

       sentence is not inappropriate.


[46]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




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