                                                                    FILED
                                                                Dec 28 2018, 9:40 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dwayne A. Springfield,                                    December 28, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1317
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Alicia Gooden,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Richard
                                                          Hagenmaier, Commissioner
                                                          Trial Court Cause No.
                                                          49G21-1612-F2-47464



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018                   Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dwayne Springfield (Springfield), appeals his conviction

      for one Count of possession of cocaine and a firearm, a Level 4 felony; one

      Count of possession of a narcotic drug and a firearm, a Level 5 felony, one

      Count of unlawful possession of a firearm by a serious violent felon (SVF), a

      Level 4 felony; one Count of battery resulting in bodily injury to an officer; a

      Level 5 felony; one Count of resisting law enforcement, a Class A

      misdemeanor; one Count of possession of marijuana, a Class B misdemeanor.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                     ISSUE
[3]   Springfield presents a single issue on appeal, which we restate as follows:

      Whether his conviction for Level 4 felony possession of cocaine and a firearm,

      Level 5 felony possession of a narcotic drug and a firearm, and Level 4 felony

      unlawful possession of a firearm by a SVF, violate the Double Jeopardy

      provision of the Indiana Constitution.


                      FACTS AND PROCEDURAL HISTORY
[4]   On December 6, 2016, Indianapolis Metropolitan Police Department Officer

      Christopher Cooper (Officer Cooper), initiated a traffic stop of Springfield’s

      GMC Sierra pickup truck since the license plate did not match the vehicle’s

      description. After Springfield had pulled to the side of the road, Officer Cooper

      approached the driver’s side window and requested Springfield’s license and

      registration. At that point, Officer Cooper detected the smell of “raw
      Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018     Page 2 of 10
      marijuana” emanating from the vehicle. (Transcript Vol. II, p. 110). Officer

      Cooper ordered Springfield out of the vehicle. Springfield did not comply.

      Officer Cooper opened the door and “grabbed [Springfield’s] left wrist and []

      guided him out of the vehicle.” (Tr. Vol. II, p. 113). For his safety, Officer

      Cooper tried to handcuff Springfield; however, Springfield “tensed up” and

      then “tried to run southbound.” (Tr. Vol. II, p. 113). Before he had run a great

      distance, Officer Cooper took Springfield down to the ground. By that time,

      other officers had arrived at the scene, and they helped with the arrest.

      Springfield continued to resist arrest and an altercation ensued. During the

      altercation, Springfield bit one officer and he also struck another officer in the

      face. Eventually, the officers subdued and handcuffed Springfield.


[5]   While patting down Springfield, a .38 revolver handgun was found in

      Springfield’s right sweatshirt pocket. In Springfield’s left sweatshirt pocket,

      there was a sock that had “multiple baggies of narcotics.” (Tr. Vol. II, p. 143).

      The drugs later tested positive for eight grams of crack cocaine, three grams of

      fentanyl, and one gram of marijuana.


[6]   On December 12, 2016, the State filed an Information, charging Springfield

      with Count I, dealing in cocaine while in possession of a firearm, a Level 2

      felony; Count II, possession of cocaine and a firearm, a Level 4 felony; Count

      III, dealing in a narcotic drug while in possession of a firearm, a Level 3 felony;

      Count IV, possession of a narcotic drug and a firearm, a Level 5 felony; Count

      V, unlawful possession of a firearm by a SVF, a Level 4 felony; Counts VI-VII,

      battery resulting in bodily injury to an officer, Level 5 felonies; Count VIII,

      Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018       Page 3 of 10
      resisting law enforcement, a Class A misdemeanor; and Count IX, possession

      of marijuana, a Class B misdemeanor. Also, the State filed a habitual offender

      charge against Springfield, alleging that he had accumulated at least two prior

      unrelated felony convictions.


[7]   On April 12, 2018, a trifurcated jury trial was held. The first phase of the trial

      involved all charges except for the Level 4 felony unlawful possession of a

      firearm by a SVF and the habitual offender charge. At the close of the

      evidence, the jury found Springfield guilty on Counts II, IV, V, VI, VIII, and

      IX. During the second phase, the jury found Springfield guilty of Count V,

      Level 5 felony unlawful possession of a firearm by a SVF. In the third phase, a

      bench trial was conducted since Springfield had waived his right to a jury trial.

      During the hearing, the State presented evidence of Springfield’s prior unrelated

      convictions in relation to the habitual offender charge. At the close of the

      evidence, the trial court adjudicated Springfield a habitual offender.


[8]   On May 14, 2018, the trial court conducted a sentencing hearing. After the

      parties had presented evidence, the trial court sentenced Springfield as follows:

      ten years for Count II, Level 4 felony possession of cocaine and a firearm. That

      sentence was enhanced by twenty years due to the habitual offender finding.

      The trial court also sentenced Springfield to six years on Count IV, Level 5

      felony possession of a narcotic drug and a firearm; twelve years on Count V,

      Level 5 felony unlawful possession of a firearm by a SVF; six years on Count

      VI, Level 5 felony battery resulting in bodily injury to an officer; one year on

      Count VIII, Class A misdemeanor resisting law enforcement; and 180 days for

      Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018     Page 4 of 10
       Count IX, Class B misdemeanor possession of marijuana. Springfield’s

       sentences were to run concurrently for an aggregate sentence of thirty years in

       the Department of Correction.


[9]    Springfield now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Springfield contends that his convictions for Level 4 felony possession of

       cocaine and a firearm, Level 5 felony possession of a narcotic drug and a

       firearm, and Level 5 felony unlawful possession of firearm by a SVF violate

       Indiana’s Double Jeopardy principles since they were based on the same

       evidence—i.e., “possession of a single gun.” (Appellant’s Br. p. 12).


[11]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” Two or more offenses are

       the same offense in violation of this section “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 is violated when “a defendant’s

       conviction for one crime is enhanced for . . . causing particular additional

       harm” because that “harm cannot also be used as an enhancement of a separate

       crime.” Id. at 56 (Sullivan, J., concurring). When two convictions are found to

       violate 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

       Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018      Page 5 of 10
       so will eliminate the violation.” Richardson, 717 N.E.2d at 54. Whether

       multiple convictions violate double jeopardy is a question of law, which this

       Court reviews de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App.

       2012).


[12]   In addition, the Indiana Supreme Court has acknowledged five situations that

       violate the Indiana Double Jeopardy clause: (1) conviction and punishment for

       a crime which is a lesser-included offense of another crime for which the

       defendant has been convicted and punished; (2) conviction and punishment for

       a crime which consists of the very same act as another crime for which the

       defendant has been convicted and punished; (3) conviction and punishment for

       a crime which consists of the very same act as an element of another crime for

       which the defendant has been convicted and punished; (4) conviction 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; and (5) conviction and punishment for the

       crime of conspiracy where the overt act that constitutes an element of the

       conspiracy charge is the very same act as another crime for which the defendant

       has been convicted and punished. Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.

       2002) (Sullivan, J., concurring)). “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).


[13]   Springfield argues, based on Guyton’s Category 5, his convictions for Level 4

       felony possession of cocaine and a firearm, and Level 5 felony possession of a

       Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018   Page 6 of 10
       narcotic drug and a firearm, were based on the “possession of a single gun,”

       and violate the Indiana double jeopardy law. (Appellant’s Br. p. 12).


[14]   To convict Springfield of possession of cocaine, the State was required to prove

       beyond a reasonable doubt that Springfield “without a valid prescription . . .

       knowingly or intentionally possesse[d] cocaine[.]” I.C. § 35-48-4-6(a). The

       offense is a Level 4 felony if “the amount of the drug involved is at least five (5)

       but less than ten (10) grams and an enhancing circumstance applies.” I.C. § 35-

       48-4-6(c)(2). An enhancing circumstance means “one or more of the following

       . . . the person committed the offense while in possession of a firearm.” I.C. §

       35-48-1-16.5(2). In Count II, the State alleged that Springfield, “did knowingly

       or intentionally possess cocaine . . . weighing at least 5 grams, but less than 10

       grams while . . . [Springfield was] in possession of a firearm.” (Appellant’s

       App. Vol. II, p. 49).


[15]   Further, to convict Springfield of possession of a narcotic drug, the State was

       required to prove beyond a reasonable doubt that Springfield “without a valid

       prescription . . . knowingly or intentionally possesse[d] . . . a narcotic drug.”

       I.C. § 35-48-4-6(a). Where the amount of the drug involved is “less than five (5)

       grams and an enhancing circumstance applies,” the offense is a Level 5 felony.

       I.C. § 35-48-4-6(b)(2). Possessing a firearm during the commission of this

       offense constitutes an enhancing circumstance. See I.C. § 35-48-1-16.5(2). As

       charged in Count IV, the State alleged that Springfield, “did knowingly or

       intentionally possess fentanyl, pure or adulterated, a narcotic drug classified in



       Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018      Page 7 of 10
       Schedule II[,] the said narcotic drug weighing less than 5 grams . . . while . . .

       [Springfield was] in possession of a firearm.” (Appellant’s App. Vol. II, p. 49).


[16]   Lastly, Indiana Code section 35-47-4-5 prohibits the unlawful possession of a

       firearm by a serious violent felon. In relevant part the statute provides: “As

       used in this section, ‘serious violent felon’ means a person who has been

       convicted of: (1) committing a serious violent felony in . . . Indiana.” I.C. § 35-

       47-4-5(a). The statute lists twenty-seven separate offenses qualifying as a

       serious violent felony including robbery (I.C. § 35-42-5-1). I.C. § 35-47-4-

       5(b)(13). As charged, in Count V, the State alleged that Springfield, “having

       previously been convicted of a serious violent felony, to-wit robbery. a Class B

       Felony, under cause number 49601-0409-FB-1 56857, did knowingly or

       intentionally possess a firearm.” (Appellant’s App. Vol. II, p. 49).


[17]   Springfield’s trial was trifurcated. At the end of the first phase, among other

       Counts, the jury found Springfield guilty of Level 4 felony possession of cocaine

       while armed with a firearm, and Level 5 felony possession of a narcotic while

       armed with a firearm. During the SVF phase, the State moved to incorporate

       all the evidence from the first phase and it submitted a certified document

       relative to Springfield’s prior Class B felony robbery conviction committed in

       2004. During closing arguments, the State argued, in part,


               [Springfield] had been found guilty of robbery, Class B felony,
               which classified him as a serious violent felon on December 6[],
               2016. Because of that conviction, he is prohibited from lawfully
               possessing a firearm. You have already found that he possessed
               the firearm back on December 6[], 2016. Please take this

       Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018      Page 8 of 10
                evidence back with you, review it, and find him guilty on this
                [C]ount.


       (Tr. Vol. II, p. 250).


[18]   “In situations where a defendant has been convicted of one crime for engaging

       in the specified additional behavior or causing the specified additional harm,

       that behavior or harm cannot also be used as an enhancement of a separate

       crime; either the enhancement or the separate crime is vacated.” Richardson,

       717 N.E.2d at 56 (Sullivan, J., concurring). Applying this common law

       principle to Springfield’s case means that if we determine that he was convicted

       and punished for the enhancement of possessing a firearm based on the same

       behavior or harm that forms the basis of his unlawful possession of a firearm by

       a SVF conviction, then double jeopardy principles are violated. It is readily

       apparent that the State invited the jury to rely on evidence that Springfield had

       a gun when he possessed cocaine and fentanyl, to also convict Springfield of

       unlawful possession of a firearm by a SVF. The same conduct cannot

       permissibly support both the enhancements and form the basis of a separate

       crime.


[19]   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.

       Zieman, 990 N.E.2d at 64. In the alternative, a reviewing court may vacate one

       of the convictions to eliminate a double jeopardy violation. Id. In making that


       Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018     Page 9 of 10
       determination, we must be mindful of the penal consequences that the trial

       court found appropriate. Id.


[20]   Because Springfield was convicted and punished for the enhanced drug

       offenses, based on the same behavior or harm—possession of a firearm—which

       formed the basis of his unlawful possession of a firearm by a SVF, double

       jeopardy principles were violated. To remedy the violation, we are reversing

       Springfield’s conviction and accompanying sentence for the Level 5 felony

       unlawful possession of a firearm. See Richardson, 717 N.E.2d at 54 (indicating

       that when convictions violate double jeopardy principles, it is proper to vacate

       the convictions with the less severe penal consequences).


                                              CONCLUSION
[21]   Based on the foregoing, we remand with instructions to the trial court to vacate

       Springfield’s Level 5 felony unlawful possession of a firearm by SVF, and to

       sentence him accordingly.


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


[23]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018   Page 10 of 10
