MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                           Jun 23 2016, 9:27 am

this Memorandum Decision shall not be                                 CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
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
Susan D. Rayl                                            Gregory F. Zoeller
Smith Rayl Law Office, LLC                               Attorney General of Indiana
Indianapolis, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Coby Crowe,                                              June 23, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A05-1509-CR-1485
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable William Nelson,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49F18-1403-FD-15204



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016      Page 1 of 6
                                             Case Summary
[1]   Coby Crowe appeals his convictions for Class D felony dealing in a sawed-off

      shotgun and Class A misdemeanor pointing a firearm. We affirm.


                                                     Issue
[2]   Crowe raises one issue, which we restate as whether his convictions for Class D

      felony dealing in a sawed-off shotgun and Class A misdemeanor pointing a

      firearm violate the prohibition against double jeopardy.


                                                     Facts
[3]   On March 24, 2014, Donesha Jackson was retrieving an item from her car

      when Crowe stopped his car near her. Crowe pointed a large gun at Jackson,

      said, “What’s up now, m-f’er,” and pulled the trigger several times. Tr. p. 10.

      Jackson could see Crowe’s finger moving and could hear the gun clicking, but

      the gun did not fire. Jackson ran and hid behind a dumpster, and Crowe drove

      his vehicle near the dumpster. Jackson heard the clicking noise again, but the

      gun did not fire. She then ran into the house and called 911.


[4]   The police located Crowe, and he had a sawed-off shotgun in the vehicle and

      marijuana in his pocket. The State charged Crowe with Class D felony dealing

      in a sawed-off shotgun, Class A misdemeanor pointing a firearm, and Class A

      misdemeanor possession of marijuana. After a bench trial, the trial court found

      Crowe guilty as charged. The trial court sentenced him to 1095 days in the

      Department of Correction with 365 days suspended to probation. Crowe now

      appeals.
      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016   Page 2 of 6
                                                  Analysis
[5]   Crowe argues that his convictions for Class D felony dealing in a sawed-off

      shotgun and Class A misdemeanor pointing a firearm violate the prohibition

      against double jeopardy. According to Crowe, he “would have to commit the

      lesser offense of possession of a sawed-off shotgun in order to commit the

      greater offense of pointing a sawed-off shotgun.” Appellant’s Br. p. 11. Crowe

      requests that we vacate his conviction for Class D felony dealing in a sawed-off

      shotgun.


[6]   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 (Ind. 1999), our supreme 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. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). “In addition to the

      instances covered by Richardson, ‘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)). “Even where no constitutional

      violation has occurred, multiple convictions may nevertheless violate the ‘rules

      of statutory construction and common law that are often described as double

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016   Page 3 of 6
      jeopardy, but are not governed by the constitutional test set forth in

      Richardson.’” Vandergriff v. State, 812 N.E.2d 1084, 1088 (Ind. Ct. App. 2004)

      (quoting Pierce, 761 N.E.2d at 830), trans. denied. These rules fall under broader

      categories set forth by Justice Sullivan in his concurring opinion in Richardson

      and include the “[c]onviction and punishment for a crime which is a lesser-

      included offense of another crime for which the defendant has been convicted

      and punished.” Id.


[7]   Indiana Code Section 35-38-1-6 “reinforces” the double jeopardy rule that

      prohibits a trial court “from sentencing a defendant for an offense and a lesser

      included offense charged in separate counts.” Hopkins v. State, 759 N.E.2d 633,

      639 (Ind. 2001). Specifically, Indiana Code Section 35-38-1-6 provides that if a

      defendant is charged with an offense and an included offense in separate counts

      and is found guilty of both counts, “judgment and sentence may not be entered

      against the defendant for the included offense.” “Included offense” means an

      offense that:

              (1)      is established by proof of the same material elements or
                       less than all the material elements required to establish the
                       commission of the offense charged;


              (2)      consists of an attempt to commit the offense charged or an
                       offense otherwise included therein; or


              (3)      differs from the offense charged only in the respect that a
                       less serious harm or risk of harm to the same person,
                       property, or public interest, or a lesser kind of culpability,
                       is required to establish its commission.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016   Page 4 of 6
      Ind. Code § 35-31.5-2-168. A lesser-included offense is necessarily included

      within the greater offense if it is impossible to commit the greater offense

      without first having committed the lesser offense. Zachary v. State, 469 N.E.2d

      744, 749 (Ind. 1984). If the evidence indicates that one crime is independent of

      another crime, it is not an included offense. Iddings v. State, 772 N.E.2d 1006,

      1017 (Ind. Ct. App. 2002), trans. denied.


[8]   At the time of Crowe’s offense, Indiana Code Section 35-47-5-4.11 provided that

      a person who possessed “any sawed-off shotgun commits dealing in a sawed-off

      shotgun, a Class D felony.” On the other hand, Indiana Code Section 35-47-4-

      3(b) provided: “A person who knowingly or intentionally points a firearm at

      another person commits a Class D felony. However, the offense is a Class A

      misdemeanor if the firearm was not loaded.” We conclude that dealing in a

      sawed-off shotgun is not a lesser included offense of pointing a firearm. The

      dealing in a sawed-off shotgun offense required proof that Crowe possessed a

      sawed-off shotgun while the pointing a firearm offense required proof that

      Crowe pointed a firearm at someone. The dealing in a sawed-off shotgun

      offense is not established by proof of the same material elements or less than all

      the material elements required to establish the commission of the pointing a

      firearm offense. Crowe’s argument fails. See, e.g., Armstrong v. State, 742

      N.E.2d 972, 978 (Ind. Ct. App. 2001) (holding that no double jeopardy

      violation occurred by the defendant’s conviction for Class D felony pointing a



      1
          Repealed by Pub. L. No. 84-2015, § 4 (eff. July 1, 2015).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016   Page 5 of 6
       firearm and Class A misdemeanor carrying a handgun without a license);

       Mickens v. State, 742 N.E.2d 927, 931 (Ind. 2001) (“Carrying the gun along the

       street was one crime and using it was another.”).


                                                 Conclusion
[9]    The prohibition against double jeopardy is not violated by Crowe’s convictions

       for Class D felony dealing in a sawed-off shotgun and Class A misdemeanor

       pointing a firearm. We affirm.


[10]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016   Page 6 of 6
