MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jan 16 2019, 7:36 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
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Demonae Deshawn Lewis,                                   January 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1423
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela G. Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1610-F1-2111



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019               Page 1 of 10
                                                  Case Summary
[1]   Demonae Deshawn Lewis (“Lewis”) was convicted of several offenses, the

      most serious of which was Attempted Murder, a Level 1 felony. 1 Lewis now

      appeals, presenting a single issue that we restate as whether the trial court

      abused its discretion by admitting certain identification evidence. We conclude

      that any error in the admission of the challenged identification evidence was—

      at most—harmless. However, we sua sponte identify a double jeopardy violation

      not remedied through the merger of convictions. We therefore reverse and

      remand with instructions to vacate the conviction and sentence for Carrying a

      Handgun Without a License, as a Class A misdemeanor.2 We otherwise affirm.



                                Facts and Procedural History
[2]   Around September of 2016, Lewis became acquainted with Zacery Trover

      (“Trover”) who began supplying Lewis with synthetic marijuana. On October

      11, 2016, Lewis met with Trover and accused Trover of shorting him. Lewis

      then took a gun from Trover and said Trover could get it back after bringing

      him $15. Trover left and borrowed money from his grandmother. Trover later

      met with Lewis and handed him $15, but Lewis refused to return the gun.




      1
          Ind. Code §§ 35-42-1-1, 35-41-5-1(a).
      2
          I.C. § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 2 of 10
[3]   Later that day, Lewis called Trover, apologized, and said Trover could come

      back and get the gun. Trover then asked his friend Jerry Mabbitt (“Mabbitt”) to

      go on a drive with him, and Trover drove them over to meet with Lewis. After

      Trover parked, Lewis approached the driver’s window, holding Trover’s gun.

      Lewis said that he should “smoke” Trover and Mabbitt. Tr. Vol. II at 199.

      Lewis then fired the gun into the vehicle, shooting Trover in the face, skull, and

      shoulder. Mabbitt yelled to Trover, who managed to drive them both to safety.


[4]   Trover was flown out of town for medical treatment, and he survived his

      injuries. While Trover was being treated, officers from the Anderson Police

      Department began canvassing the area of the shooting. Detective Trent

      Chamberlain (“Detective Chamberlain”) spoke with Warren Allen (“Allen”),

      who lived nearby and heard gunshots. While Detective Chamberlain spoke

      with Allen, he saw Lewis sitting on Allen’s porch. Detective Chamberlain

      spoke with Lewis, who gave a different name and two different social security

      numbers. Around this time, Sergeant Kevin Earley (“Sergeant Earley”) met

      with Mabbitt, who agreed to show Sergeant Earley where he and Trover had

      been parked. Sergeant Earley drove Mabbitt to that location. Sergeant Earley

      eventually pulled around the corner, which situated them near Allen’s

      residence, where officers stood outside. Sergeant Earley asked Mabbitt if he

      recognized anyone. After speaking with Mabbitt, Sergeant Earley contacted

      Detective Chamberlain, relaying that he had a positive identification for the

      shooter. Detective Chamberlain arrested Lewis. At some point later, Allen

      found Lewis’s cellphone and Trover’s gun stashed in Allen’s crawlspace.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 3 of 10
[5]   The State charged Lewis with Count I: Attempted Murder, a Level 1 felony;

      Count II: Unlawful Possession of a Firearm by a Serious Violent Felon, as a

      Level 4 felony;3 Count III: Carrying a Handgun with a License, as a Class A

      misdemeanor; and Count IV: Carrying a Handgun Without a License, as a

      Level 5 felony.4 The State also sought a firearm enhancement.5


[6]   Before trial, Lewis moved to suppress any identification made by Mabbitt. He

      argued that any out-of-court identification was made under impermissibly

      suggestive circumstances, and that any in-court identification would be tainted

      therefrom, contrary to his state and federal constitutional rights. The trial court

      held a hearing and denied the motion to suppress.


[7]   A bifurcated trial commenced on April 18, 2018, at the outset of which the

      State moved to dismiss the felony count of Carrying a Handgun Without a

      License. The trial court then conducted an initial guilt phase, during which (1)

      Trover identified Lewis as the shooter; (2) Mabbitt identified Lewis as the

      shooter; and (3) Lewis testified that he brought the gun to Trover’s vehicle, but

      that the gun accidentally fired when Trover tried to pry the gun from his hand.

      The jury found Lewis guilty of the counts tried to it: Attempted Murder and

      misdemeanor Carrying a Handgun Without a License. Lewis then pleaded

      guilty to Unlawful Possession of a Firearm by a Serious Violent Felon, and he



      3
          I.C. § 35-47-4-5(c).
      4
          I.C. § 35-47-2-1(e)(2)(A)(i).
      5
          I.C. § 35-50-2-11(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 4 of 10
      admitted to having used a firearm. At that point, the court said it “will accept

      [Lewis’s] pleas of guilty, enter judgment and conviction [sic] for Count I, which

      was found by the Jury; Count II, which was made by admission from the

      Defendant; Count III, which was found to be guilty [sic] by Jury; and Count – it

      would be V, which would be the enhancement.” Tr. Vol. IV at 44. The trial

      court also noted that the State had previously moved to dismiss Count IV.


[8]   At the ensuing sentencing hearing, the court orally pronounced a sentence. On

      Count I, Attempted Murder, the court ordered Lewis to serve thirty-five years

      in the Indiana Department of Correction. The court enhanced this sentence by

      fifteen years, producing a fifty-year sentence on the Level 1 felony. On Count

      II, Unlawful Possession of a Firearm by a Serious Violent Felon, the trial court

      sentenced Lewis to ten years in the Indiana Department of Correction, and

      ordered that the sentence run consecutive to the sentence on Count I. As to

      Count III, misdemeanor Carrying a Handgun Without a License, the trial court

      “sentenced [Lewis] to one (1) year at the Madison County Detention Center.”

      Id. at 68. The court stated that “Count III will merge into Count II, resulting in

      an aggregate sentence between the four (4) counts of sixty (60) years.” Id. at 68.

      The court later entered a written sentencing order, which shows a one-year

      sentence for Count III. The order also states that “Count III is merged into

      Count II for sentencing purpose[s].” Appellant’s App. Vol. II at 110.


[9]   Lewis now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 5 of 10
                                  Discussion and Decision
                                              Identification
[10]   Lewis argues that the court should have suppressed Mabbitt’s identification of

       him as the shooter. Yet, because Lewis did not pursue an interlocutory appeal

       of the denial of his motion to suppress, we treat his argument as a challenge to

       the admission of evidence. See, e.g., Clark v. State, 994 N.E.2d 252, 259 (Ind.

       2013). The admission of evidence at trial “is a matter we leave to the discretion

       of the trial court.” Id. at 259-60. We review “for abuse of that discretion and

       reverse only when admission is clearly against the logic and effect of the facts

       and circumstances and the error affects a party’s substantial rights.” Id. at 260.


[11]   Lewis argues that Mabbitt’s identification was tainted by unduly suggestive

       procedures, running afoul of his constitutional rights. Yet, even assuming

       arguendo that the trial court abused its discretion by admitting the challenged

       identification evidence, at trial, Lewis did not dispute his involvement in the

       incident. Instead, the jury heard Lewis testify that the shooting was accidental.

       Thus, we conclude that any alleged error in the admission of the cumulative

       identification evidence was, at most, harmless. See Ind. Appellate Rule 66(A)

       (“No error or defect in any ruling . . . is ground for granting relief or reversal on

       appeal where its probable impact, in light of all the evidence in the case, is

       sufficiently minor so as not to affect the substantial rights of the parties.”).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 6 of 10
                                            Double Jeopardy
[12]   Double jeopardy violations implicate fundamental rights, and this Court may

       address such violations sua sponte. See Logan v. State, 729 N.E.2d 125, 136 (Ind.

       2000); Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015), trans. denied.

       Whether convictions violate double jeopardy is a pure question of law, which

       we review de novo. See Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015).


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

       shall be put in jeopardy twice for the same offense.” “[T]wo or more offenses

       are the ‘same offense’ . . . 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). “In

       addition to constitutional double jeopardy, other categories of double jeopardy

       based on statutory construction and common law prohibit multiple convictions

       or punishments for the same crime.” Calvert v. State, 930 N.E.2d 633, 641-42

       (Ind. Ct. App. 2010) (citing Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002)),

       disapproved of on other grounds, B.T.E. v. State, 108 N.E.3d 322 (Ind. 2018). These

       categories prohibit, inter alia, conviction and punishment for a crime that

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

       defendant has been convicted and punished. Guyton, 771 N.E.2d at 1143 (citing

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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 7 of 10
[14]   Here, the jury returned a guilty verdict for misdemeanor Carrying a Handgun

       Without a License. To convict Lewis of this offense, the State was obligated to

       prove that Lewis (1) carried a handgun (2) in a vehicle or on or about his

       person.6 See I.C. § 35-47-2-1. At trial, the State argued to the jury that the State

       “could dispense of that quickly,” asserting that Lewis “wasn’t in a car” but was

       “out and about on the streets of our community” with a handgun. Tr. Vol. IV

       at 2. Later, Lewis pleaded guilty to Unlawful Possession of a Firearm by a

       Serious Violent Felon.7 This offense required proof that Lewis, (1) with the

       requisite status as a serious violent felon, (2) knowingly or intentionally (3)

       possessed a firearm. See I.C. § 35-47-4-5. In setting forth a factual basis, the

       State incorporated the evidence from the initial phase. Lewis then admitted to

       having prior convictions for Robbery, and that he knowingly or intentionally

       possessed a firearm. The articulated factual basis did not specify an instance of

       possession separate from that supporting the other count of carrying a handgun.


[15]   Ultimately, Lewis was convicted of an offense—Carrying a Handgun Without a

       License—that consisted of the very same act as an element of another offense

       for which he was convicted: Unlawful Possession of a Firearm by a Serious

       Violent Felon. See Calvert, 930 N.E.2d at 642 (concluding that the defendant’s




       6
         Proof that the defendant lacked a valid license is not an element of the offense, but instead having a license
       is a defense. I.C. § 35-47-2-24 (“The burden of proof is on the defendant to prove that he is exempt . . . or
       that he has a license as required under this chapter.”); Harris v. State, 716 N.E.2d 406, 411-412 (Ind. 1999).
       7
        We note that when a defendant pleads guilty in connection with a negotiated plea agreement, the defendant
       waives the protections against double jeopardy. E.g., Games v. State, 743 N.E.2d 1132, 1134-35 (Ind. 2001).
       Here, however, Lewis pleaded guilty without the benefit of a plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019                    Page 8 of 10
       conviction for Possession of a Sawed-off Shotgun was improperly based on the

       very same act—his having the shotgun in his vehicle—that formed an essential

       element of Unlawful Possession of a Firearm by a Serious Violent Felon).


[16]   Nonetheless, at sentencing, the State said it believed Count III “would merge

       into Count II.” Tr. Vol. IV at 61. Thereafter, the trial court merged Count III

       into Count II, at which point the court had already orally entered judgment of

       conviction on both counts and imposed sentences on both counts. Merger is a

       tool used by our trial courts to avoid double jeopardy violations. E.g., Payton v.

       State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004), trans. denied. However, the

       “act of merging, without also vacating, the convictions is not sufficient” to

       avoid such violations. Id. Indeed, as our supreme court has explained, “[a]

       double jeopardy violation occurs when a court enters judgment twice for the

       same offense ‘and cannot be remedied by the “practical effect” of concurrent

       sentences or by merger after conviction has been entered.’” Hines, 30 N.E.3d at

       1221 (quoting Jones v. State, 807 N.E.2d 58, 67 (Ind. Ct. App. 2004), trans.

       denied); cf. Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (“[A] merged offense

       for which a defendant is found guilty, but on which there is neither a judgment

       nor a sentence, is ‘unproblematic’ as far as double jeopardy is concerned.”).


[17]   In this case, merger alone did not remedy the double jeopardy violation. Thus,

       we reverse and remand with instructions to vacate the judgment of conviction

       and accompanying sentence for Carrying a Handgun Without a License.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 9 of 10
[18]   Affirmed in part, reversed in part, and remanded.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1423 | January 16, 2019   Page 10 of 10
