MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Dec 29 2017, 11:38 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
Thomas C. Allen                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin D. Hamilton,                                      December 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1704-CR-932
        v.                                              Appeal from the
                                                        Allen Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Frances C. Gull, Judge
                                                        Trial Court Cause No.
                                                        02D06-l608-MR-5



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017          Page 1 of 16
[1]   Kevin D. Hamilton (“Hamilton”) was convicted after a jury trial of murder,1

      Level 2 felony robbery,2 and an enhancement for use of a firearm in the

      commission of a felony.3 On appeal, he raises the following restated issues:


                 I. Whether the trial court erred in merging Hamilton’s felony
                 murder conviction with his murder conviction;


                 II. Whether reducing Hamilton’s conviction from Level 2 felony
                 robbery to Level 3 felony robbery for purposes of sentencing
                 remedied double jeopardy violations under Indiana’s Double
                 Jeopardy Clause; and


                 III. Whether the trial court erred by allowing the jury to hear
                 evidence on the enhancement—use of a firearm in the
                 commission of an offense causing death or serious bodily
                 injury—at the same time the jury heard evidence on the other
                 counts.


[2]   We affirm.


                                        Facts and Procedural History
[3]   On August 13, 2016, Hamilton and his friend, Devyn Yancey (“Yancey”), were

      exchanging text messages regarding the fact that marijuana they had purchased

      from Brian Quintana (“Quintana”) was ten grams short. Hamilton and Yancey

      decided to rob Quintana the next day, during an arranged buy. Via text,



      1
          See Ind. Code § 35-42-1-1(1).
      2
          See Ind. Code § 35-42-5-1(1)(a).
      3
          See Ind. Code § 35-50-2-11.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 2 of 16
      Yancey assured Hamilton that Quintana would have only one person with him,

      if anyone, and that no one would be armed. Tr. Vol. 3 at 138-39. Hamilton said

      he would bring his .9-millimeter handgun. Referring to the robbery, Hamilton

      texted, “Sounds easy. Let’s do it.” Id. at 139.


[4]   On August 14, 2016, Hamilton picked up Yancey, and they drove to the

      parking lot of the Woodbridge Apartments in Allen County, where Quintana

      was waiting in his car. Yancey and Hamilton entered Quintana’s car; Yancey

      sat in the passenger seat, and Hamilton, brandishing his gun, sat in the back.

      Seeing the handgun, and understanding that he was being robbed, Quintana

      tried to wrestle the gun out of Hamilton’s hand. Yancey went around to the

      driver’s side door and started hitting Quintana. This allowed Hamilton to

      secure his gun and exit the car. As Yancey and Quintana continued to struggle

      in the front seat of the car, Hamilton fired his gun through the back windshield,

      striking Quintana in the right lower chest. Yancey grabbed a bag of Quintana’s

      marijuana, and he and Hamilton fled from the scene.


[5]   When police arrived at the scene, Quintana told them that Hamilton had shot

      him. Following a search, police tracked down Hamilton and arrested him.

      Quintana died from his injuries, and on August 18, 2016, Hamilton was

      charged with murder, felony murder, robbery as a Level 2 felony, and an

      enhancement for use of a firearm in the commission of a felony. A jury trial

      was conducted from March 7 through 9, 2017. Following the trial, and without

      reconvening to prove the enhancement, Hamilton was found guilty of all

      charges.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 3 of 16
[6]   At the August 11, 2017 sentencing hearing, the trial court said:


              [T]he Court now finds the Defendant guilty of Murder, a Felony
              in Count I, order[s] that Count II merges into Count I. Um, on
              Count III, Robbery, it was originally charged as a Level 2
              Felony. The Court orders that reduced, to a Level 3 Felony, for
              the Use of The Weapon, removing the Serious Bodily Injury.
              And Count IV, Use of a Firearm in the Commission of the
              Offense as Charged.


      Sent. Tr. at 13. The trial court sentenced Hamilton as follows:


              It is therefore ordered that [Hamilton] be committed to the
              Indiana Department of Correction for classification and
              confinement for a period of fifty-five (55) on Count I, a period of
              nine (9) years on Count III, and ten (10) years on Count IV;
              order those all to be served consecutively for a net sentence of
              seventy-four (74) years in the Department of Correction . . . .


      Id. at 15. Hamilton now appeals.


                                     Discussion and Decision

                          I. Double Jeopardy - Merging Counts
[7]   After the jury returned guilty verdicts on Counts I and II, murder and felony

      murder respectively, the trial court merged Count II into Count I. Hamilton

      argues that the trial court erred when it improperly merged his felony murder

      count with his murder count. Specifically, he contends that a violation of

      double jeopardy principles cannot be cured without vacating the felony murder

      conviction, and therefore, the instant case should be remanded with orders to

      vacate the felony murder conviction. Appellant’s Br. at 14 (citing Morrison v.
      Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 4 of 16
      State, 824 N.E.2d 734, 741-742 (Ind. Ct. App. 2005), trans. denied; Gregory v.

      State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied).


[8]   Indiana’s Double Jeopardy Clause states, “No person shall be put in jeopardy

      twice for the same offense.” Ind. Const. art. 1, § 14. “This clause yields three

      protections: (1) protection from reprosecution for the same offense after an

      acquittal; (2) protection from reprosecution for the same offense after

      conviction; and (3) protection from multiple punishments for the same offense.”

      Laux v. State, 821 N.E.2d 816, 819 (Ind. 2005) (internal citations and quotations

      omitted). Regarding the third protection, Indiana appellate courts have

      addressed the issue of merger as follows:


              To be sure, a defendant’s constitutional rights are violated when
              a court enters judgment twice for the same offense, but not when
              a defendant is simply found guilty of a particular count.


              On the other hand, 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. In Laux, [821 N.E.2d at 820 n.4,] we disapproved
              those cases which indicate that vacating a jury verdict is the
              appropriate remedy rather than merger and entering a judgment
              of conviction only on the merged count.


      Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (internal citations and

      quotations omitted); Wilson v. State, 39 N.E.3d 705, 717-18 (Ind. Ct. App.

      2015), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 5 of 16
[9]    Although the jury found Hamilton guilty of murder and felony murder, the

       Abstract of Judgment clearly shows that the trial court did not enter judgment

       of conviction or sentence him for felony murder. See Appellant’s App. Vol. II at

       125-26. In Wilson, we held, “Because the felony-murder count was merged,

       rather than reduced to judgment, and [defendant] was never sentenced for

       felony murder, we find no double-jeopardy violation.” Wilson, 39 N.E.3d at

       718. Pursuant to our reasoning in Wilson, the trial court did not err when it

       merged Hamilton’s felony murder count with his murder count instead of

       vacating his felony murder count.


                                II. Double Jeopardy - Robbery
[10]   Hamilton next contends that his convictions for murder and Level 3 felony

       robbery violate double jeopardy principles and, therefore, barred the trial court

       from entering a conviction and sentencing him for Level 3 felony robbery.

       “[T]wo or more offenses are the ‘same offense’ in violation of Article I, 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 establish the essential elements of

       another challenged offense.” Anthony v. State, 56 N.E.3d 705, 715 (Ind. Ct.

       App. 2016), trans. denied (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999)).


[11]   Indiana Code section 35-42-5-1(a), defining robbery, provides:




       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 6 of 16
        [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 Level 5 felony. However, the offense is a
        Level 3 felony if it is committed while armed with a deadly
        weapon or results in bodily injury to any person other than a
        defendant, and a Level 2 felony if it results in serious bodily
        injury to any person other than a defendant.4


Ind. Code § 35-42-5-1(a). Hamilton was charged with, and the jury found him

guilty of, Level 2 felony robbery because the act resulted in serious bodily

injury. The State recognized that the same serious bodily injury could not be

used to prove an element for both robbery and murder and addressed the trial

court saying:


        Your Honor, as it relates to Count III, the Robbery, which was
        charged as Level 2, the State is asking that that be reduced to a
        Level 3, While Armed with A Deadly Weapon, thereby
        removing the Serious Bodily Injury element of the Level 2
        charge, as it would conflict with the Murder conviction.


Sent. Tr. at 10. The trial court agreed and entered a conviction and sentence for

Level 3 felony robbery. Hamilton contends that the actual evidence presented




4
 Indiana Code section 35-42-5-1 was amended in 2017; however, those amendments made no substantive
changes to this quoted language. See Pub. L. 202-2017, § 25.

Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 7 of 16
       to the trial court revealed an overlap between the actual evidence for Level 3

       felony robbery and murder, and therefore, a double jeopardy violation remains.


[12]   “The Double Jeopardy Clause is violated under the actual evidence test if 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.” Dilts v. State,

       49 N.E.3d 617, 630 (Ind. Ct. App. 2015), trans. denied (internal citations and

       quotations omitted). “Application of this test requires the court to ‘identify the

       essential elements of each of the challenged crimes and to evaluate the evidence

       from the jury’s perspective.’” Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)

       (quoting Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002)). In determining the

       facts used by the fact-finder, “it is appropriate to consider the charging

       information, jury instructions, and arguments of counsel.” Id.


[13]   As is pertinent to this appeal, Hamilton’s information for Level 2 felony

       robbery charged:


               On or about the 14th day of August, 2016, in the County of Allen
               and in the State of Indiana, said defendant, Kevin Hamilton, did,
               while armed with a deadly weapon, knowingly or intentionally take
               property, from another person or presence of another person, to
               wit: Brian Quintana, by using or threatening the use of force, or
               by putting Brian Quintana in fear, said act resulting in serious
               bodily injury to Brian Quintana, to wit: death, being contrary to
               the form of the statute in such case made and provided.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 8 of 16
       Appellant’s App. Vol. II at 17 (emphasis added). The trial court provided the jury

       with Final Instruction No. 4, regarding robbery:


               Before you may convict [Hamilton], the State must have proved
               each of the following beyond a reasonable doubt:


               1. The Defendant, Kevin Hamilton,


               2. while armed with a deadly weapon,


               3. knowingly or intentionally,


               4. took property from the person or presence of Brian Quintana,


               5. by using or threatening the use of force or by putting Brian
               Quintana in fear,


               6. and the commission of the offense resulted in serious bodily
               injury to Brian Quintana.


       Id. at 104


[14]   Focusing on the element of injury, Hamilton contends it is impossible to

       murder somebody without inflicting serious bodily injury. Appellant’s Br. at 16.

       He argues that, here, the essential element of “serious bodily injury” for Level 2

       felony robbery was proven by the same evidence of killing that established




       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 9 of 16
       murder, and therefore, double jeopardy principles were violated.5 Id. Hamilton

       asserts that, by extension, the essential element of “bodily injury” for Level 3

       felony robbery could only have been proven by the same “bodily injury” of

       death. Hamilton concludes that, without evidence that Quintana sustained

       another injury, there is no independent evidence to support the critical element

       of “bodily injury” needed to prove Level 3 felony robbery.


[15]   As noted above, Level 3 felony battery may be proven in one of two ways: (1)

       the robbery was committed while armed with a deadly weapon; or (2) the robbery

       resulted in bodily injury. I.C. § 35-42-5-1(a). We agree that double jeopardy

       principles would be violated if Hamilton was convicted of Level 3 felony

       robbery on the basis that it resulted in bodily injury; however, we find no such

       violation where, as here, he was convicted of committing robbery while armed

       with a deadly weapon.


[16]   Hamilton maintains that the finding he committed the robbery while armed

       with a deadly weapon is “pure speculation.” Appellant’s Br. at 17. He argues

       that he did not fire the gun until he “had left the vehicle and had abandoned the

       attempt at Robbery. Furthermore, it could be argued that the serious bodily

       injury was caused by [Hamilton] and [Quintana] wrestling or [Yancey]

       struggling with [Quintana].” Id.




       5
        By requesting that Hamilton be sentenced for the lesser included offense of Level 3 felony battery, which
       did not require “serious bodily injury,” the State clearly recognized this issue.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017         Page 10 of 16
[17]   We find Hamilton’s argument unpersuasive. Here, Hamilton’s information

       charged that Hamilton committed robbery while armed with a deadly weapon.

       Final Instruction No. 4 advised the jury that, before Hamilton could be

       convicted of robbery as charged, the State had to prove, as one of the elements,

       that Hamilton committed the crime while armed with a deadly weapon.

       Appellant’s App. Vol. II at 104. In closing, the State addressed the jury, saying:


               Let’s turn to the elements of robbery; again, they’re in your
               packet, I’m not gonna go through each one and read them out.
               While armed with a deadly weapon. Well, we know he had a
               gun on him; right? He admitted that. The text, [Yancey] says,
               “Hey, bring your gun.” He brought the gun. His taped
               interview, he said he brought the gun, said it’s a Smith and
               Wesson, it’s a .9 millimeter handgun; right? And what was his
               plan? To get into that car, pull the gun, demand the marijuana.
               And he did, he said he did that, and [Quintana] fought back. So
               we know he has a gun.


       Tr. Vol. 3 at 171. Hamilton testified that he entered Quintana’s car with a gun

       in hand, that Quintana saw the gun, and that Hamilton fired the gun through

       the rear window of Quintana’s car. It was at that time that Yancey stole the

       marijuana from Quintana. There was sufficient evidence to support Hamilton’s

       Level 3 felony robbery conviction on the basis that Hamilton used a gun in the

       commission of the robbery. Under these circumstances, the trial court correctly

       remedied any potential double jeopardy problem by entering judgment on

       Count III as a Level 3 felony.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 11 of 16
                           III. Enhancement for use of a Firearm
[18]   Finally, Hamilton argues that the trial court committed reversible error when it

       allowed evidence regarding the Count IV enhancement to be presented to the

       jury at the same time the evidence was heard on the other counts. Indiana

       Code section 35-50-2-11, in pertinent part, provides:


               (a) As used in this section, “firearm” has the meaning set forth in
               IC 35-47-1-5.


               (b) As used in this section, “offense” means:


               (1) a felony under IC 35-42 that resulted in death or serious
               bodily injury;


               ....


               (d) The state may seek, on a page separate from the rest of a
               charging instrument, to have a person who allegedly committed
               an offense sentenced to an additional fixed term of imprisonment
               if the state can show beyond a reasonable doubt that the person
               knowingly or intentionally used a firearm in the commission of
               the offense.


               ....


               (f) If the person was convicted of:


               (1) the offense under subsection (d);


               ....


       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 12 of 16
               in a jury trial, the jury shall reconvene to hear evidence in the
               enhancement hearing. If the trial was to the court, or the
               judgment was entered on a guilty plea, the court alone shall hear
               evidence in the enhancement hearing.


       Hamilton contends that since statutory procedure was not followed—the jury

       did not reconvene for the State to prove beyond a reasonable doubt that

       Hamilton used a gun—the trial court was precluded from enhancing his

       sentence.


[19]   As support for his claim, Hamilton cites to language in Sunday v. State, 720

       N.E.2d 716, 718 n.1 (Ind. 1999), saying: “[I]f the State desires an

       enhancement, it must follow the other requirements of the statute. If these

       requirements are not followed, the trial court is precluded from enhancing a

       sentence.” Sunday, however, is easily distinguished from the facts in the instant

       case. In Sunday, our Supreme Court reversed a trial court’s sua sponte

       enhancement of a rape conviction under Indiana Code section 35-50-2-11. Id.

       at 718. That statute “requires that the allegation that a firearm was used in the

       commission of the offense be filed on a separate page of the charging

       instrument and that the State prove it beyond a reasonable doubt.” Id. at 719.

       In Sunday, the State had not charged the defendant with using a firearm in the

       commission of the rape on a separate page of the charging information as

       required by the statute and, in fact, had not alleged the enhancement in any

       fashion. Rather, at sentencing the State simply requested the maximum

       allowable sentence without mentioning the enhancement. Sunday had pleaded

       guilty pursuant to a plea agreement that provided for concurrent sentences on

       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 13 of 16
       two counts, with sentencing otherwise left to the trial court’s discretion. Id. at

       717. Sunday was sentenced to the maximum penalty of 50 years for rape, and

       the trial court enhanced the sentence by five years because Sunday had used a

       gun in the commission of the crime.


[20]   On direct appeal to our Supreme Court, the Court reversed the trial court’s

       determination to impose the enhancement to Sunday’s sentence. Recognizing

       that Indiana Code section 35-50-2-11 allowed a sentence to be enhanced when

       the offense is committed by use of a firearm, our Supreme Court found it “clear

       that the legislature intended to require the State to seek . . . [the] enhancement

       by first filing its allegation on a separate page of the charging information.” Id.

       at 719. Because the State did not comply, error was found, and the case was

       remanded with instructions to reduce the sentence by the amount of the

       enhancement.


[21]   In contrast to Sunday, here, the State alleged on a separate page of the charging

       information that Hamilton knowingly or intentionally used a firearm in the

       commission of a felony under I.C. 35-42, that resulted in death or serious bodily

       injury. Hamilton does not contest that fact. Instead, he bases his claim on the

       following language in subsection (f) of the enhancement statute: “[I]n a jury

       trial, the jury shall reconvene to hear evidence in the enhancement hearing.”

       I.C. § 35-50-2-11(f). Hamilton argues, “The process of having the jury

       determine the issue on Count IV in the main body of the jury trial was

       procedurally defective as the Court did not hold a bifurcated or separate hearing

       after the first jury determination of Counts I thru III. The Court failed to follow

       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 14 of 16
       the applicable procedures so the trial court is precluded from enhancing a

       sentence.” Appellant’s Br. at 19 (citing Sunday, 720 N.E.2d at 718 n.1).


[22]   As Hamilton suggests, the “reconvening” language recognizes the need for a

       bifurcated proceeding where evidence of use of a handgun in the first phase of

       trial could prejudice the jury in its deliberation as to the defendant’s guilt on

       those counts. See Johnson v. State, 544 N.E.2d 164, 168 (Ind. Ct. App. 1989)

       (trial court recognized need for bifurcated proceeding to keep evidence of prior

       conviction of battery from prejudicing jury before enhancement phase of trial),

       trans. denied. Here, there is no such concern of undue prejudice. In fact, the

       evidence required to prove that Hamilton murdered Quintana necessitated

       knowledge by the jury that Hamilton shot and killed him. Furthermore,

       Hamilton’s defense to murder also required evidence that Hamilton had a

       firearm. During opening argument, defense counsel set forth his theory as

       follows:


               There is no question on the evidence that you’re gonna hear in
               this trial that Brian Quintana died as a result of injuries as a result
               of single bullet [sic] that was recklessly fired into the back of an
               automobile, a bullet that struck the young man causing an injury
               that, in turn, caused his death; but the evidence will show that
               there was no plan to kill [Quintana], there was no intention to
               kill Brian, and that his death was not even a knowingly sought
               result.


       Tr. Vol. 2 at 131-32.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 15 of 16
[23]   To prove its case, the State was required to present evidence that Hamilton

       possessed a firearm, and to prove his defense for murder, Hamilton was

       likewise required to prove that he possessed, but recklessly fired, a firearm.

       Thus the trial court did not err when it did not require the jury to reconvene for

       a bifurcated proceeding regarding the use of a handgun in the commission of

       the crime.


[24]   Affirmed.


[25]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1704-CR-932 | December 29, 2017   Page 16 of 16
