Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                  Aug 22 2013, 6:02 am
regarded as precedent or cited before
any 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:

LEANNA WEISSMANN                                  GREGORY F. ZOELLER
Lawrenceburg, Indiana                             Attorney General of Indiana

                                                  MONIKA PREKOPA TALBOT
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JOSHUA STEELMAN,                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 15A05-1212-CR-661
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE DEARBORN SUPERIOR COURT
                         The Honorable Jonathan N. Cleary, Judge
                             Cause No. 15D01-1205-FD-228



                                        August 22, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Joshua Steelman appeals his convictions for theft, as a Class D felony; criminal

mischief, as a Class B misdemeanor; and unauthorized entry of a motor vehicle, as a

Class B misdemeanor, following a jury trial. Steelman presents two issues for review:

      1.     Whether his convictions violate double jeopardy principles under the
             Indiana Constitution.

      2.     Whether his multiple convictions are barred under the continuing
             crime doctrine.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On the evening of October 25, 2011, Donald Craig parked his vehicle in an

assigned space outside his apartment in Bright. Craig owned a green two-door Ford

Explorer. As he approached the vehicle on the morning of October 26, he saw broken

glass on the ground by the passenger side and found that a back passenger window had

been broken. Additionally, Craig found a cigarette butt on the front passenger seat, but

he does not smoke or allow smoking in his car. Craig telephoned the police and reported

that someone had broken into his vehicle.

      Deputy Brian Jansen of the Dearborn County Sheriff’s Department arrived at the

scene and observed the broken back passenger window and pry marks on the window

trim. He also observed fingerprints on the driver’s side door and passenger door, as well

as a greasy smudge on the window as if someone had pushed his forehead against it to

look inside. And the cigarette on the front passenger car seat had left a burn mark on the




                                            2
upholstery. Craig reported that multiple fishing poles and various work tools, together

valued between $1500 and $2000, were missing.

      Deputy Jansen dusted the vehicle’s windows for fingerprints and took DNA swabs

from the large oil smudge on the window and from the cigarette butt. Laboratory testing

of the fingerprint samples from the windows showed that they belonged to Steelman.

Detective Edward Lewis of the Dearborn County Sheriff’s Department then obtained a

search warrant to obtain Steelman’s DNA to confirm the prior DNA identification from

the cigarette butt. That DNA test matched the DNA found on the cigarette butt.

      The State charged Steelman with theft, as a Class D felony; criminal mischief, as a

Class B misdemeanor; and unauthorized entry of a motor vehicle, as a Class B

misdemeanor. The State later amended the information to add an habitual offender

allegation. Following trial on November 4, the jury found Steelman guilty of the three

offenses charged, and following a hearing on November 11, the jury adjudicated him to

be an habitual offender. The trial court sentenced Steelman to an aggregate term of 3095

days. Steelman now appeals.

                           DISCUSSION AND DECISION

                          Issue One: Actual Evidence Test

      Steelman contends that the trial court violated the prohibition against double

jeopardy when it entered judgment of conviction on theft, as a Class D felony; criminal

mischief, as a Class B misdemeanor; and unauthorized entry of a motor vehicle, as a

Class B misdemeanor. Article I, Section 14 of the Indiana Constitution provides that

“[n]o person shall be put in jeopardy twice for the same offense.” Our supreme court has


                                           3
explained that two offenses are the same offense if the statutory elements of the crime are

the same or the actual evidence used to convict the defendant of two offenses is the same.

Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999). The statutory elements analysis

uses the test set forth by the United States Supreme Court in Blockburger v. United

States, 284 U.S. 299 (1932). Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App.

2005) (citation omitted). Steelman does not argue that the statutory elements test applies.

We therefore turn to his argument under the actual evidence test.1

       Under the actual evidence test, “the actual evidence presented at trial is examined

to determine whether each challenged offense was established by separate and distinct

facts.” Richardson, 717 N.E.2d at 53. To establish a double jeopardy violation, “a

defendant must demonstrate 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. However, “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) (citations omitted).

       Application of the actual evidence test requires the court to identify the essential

elements of each of the challenged crimes and to evaluate the evidence from the fact-

finder’s perspective. Rexroat v. State, 966 N.E.2d 165, 169 (Ind. Ct. App. 2012) (citation

omitted), trans. denied. “In determining the facts used by the fact-finder to establish the

       1
           Steelman cites the double jeopardy clause in the Fifth Amendment to the United States
Constitution, but he makes no separate analysis under that provision. Therefore, any argument under the
Fifth Amendment is waived. See Ind. Appellate Rule 46(A)(8)(a).
                                                  4
elements of each offense, it is appropriate to consider the charging information, jury

instructions, and arguments of counsel.” Id. (internal quotation marks omitted).

       Here, again, Steelman was convicted of theft, as a Class D felony; criminal

mischief, as a Class B misdemeanor; and unauthorized entry of a motor vehicle, as a

Class B misdemeanor. To prove the offense of theft, as a Class D felony, the State was

required to show in part that Steelman intentionally or knowingly exerted unauthorized

control over Craig’s property, namely, seven fishing poles, an 18v Porter Cable tool kit, a

gear wrench set, two blue bags containing sockets and ratchets, a Craftsman quarter-inch

socket set in a black case, and a black case containing twenty to thirty compact discs.

The State proved that offense, in part, by showing that Steelman’s fingerprints were on

the vehicle and that the listed items were missing. To prove the offense of criminal

mischief, the State was required to show that Steelman, without Craig’s consent,

damaged Craig’s vehicle. See Ind. Code § 35-43-1-2. The State proved that element by

showing the pry marks on the outside of the passenger door and the broken window.

Finally, to prove unauthorized entry of a motor vehicle, as a Class B misdemeanor, the

State was required to show that Steelman entered Craig’s vehicle and that he did not have

a contractual interest in that vehicle. As the prosecuting attorney argued at closing, the

State proved Steelman’s entry of the vehicle by evidence of the cigarette butt, which

contained Steelman’s DNA, in the front passenger seat.

       The evidence described above is unique to each particular offense. As such,

Steelman has not shown that his convictions violate double jeopardy under the actual

evidence test.


                                            5
                        Issue Two: Continuing Crime Doctrine

       Steelman also contends that his convictions violate the common law double

jeopardy principle known as the continuing crime doctrine.         “The continuing crime

doctrine essentially provides that actions that are sufficient in themselves to constitute

separate criminal offenses may be so compressed in terms of time, place, singleness of

purpose, and continuity of action as to constitute a single transaction.” Baugh v. State,

926 N.E.2d 497, 502 (Ind. Ct. App. 2010), aff’d in relevant part, 933 N.E.2d 1277, 1280

(internal quotation marks and citation omitted). The continuing crime doctrine “does not

seek to reconcile the double jeopardy implications of two distinct chargeable crimes;

rather, the doctrine defines those instances where a defendant’s conduct amounts to only

a single chargeable crime.” Id. (internal quotation marks and citation omitted). Thus, the

continuing crime doctrine prevents the State from charging a defendant twice for the

same continuous offense. Id.

       In other words, 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 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) (internal quotation marks and citation omitted), trans. denied. These rules fall

within five categories, which were first enumerated by Justice Sullivan in his concurrence

in Richardson:

       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. . . .


                                             6
                                          ***

       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. . . .

                                          ***

       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.

717 N.E.2d at 55-56 (Sullivan, J., concurring); see also Robinson v. State, 775 N.E.2d

316, 320 (Ind. 2002); Vandergriff, 812 N.E.2d at 1088.

       Here, Steelman was convicted of three separate offenses: theft, criminal mischief,

and unauthorized entry of a motor vehicle. His convictions do not fall into any of the five

categories listed above. Still, he relies on Buchanan v. State, 913 N.E.2d 712 (Ind. Ct.

App. 2009), trans. denied, as support for his common law double jeopardy argument. In

Buchanan, the defendant “phoned in false bomb threats [regarding a school] as a

diversionary tactic to facilitate his robbery” of a nearby bank. Id. at 720. He was

subsequently convicted of robbery, as a Class B felony; three counts of criminal

confinement, as Class B felonies; three counts of intimidation, as Class C felonies; two

counts of false reporting, as Class D felonies; and theft, as a Class D felony. The court


                                            7
held in part that his convictions for false reporting and intimidation should be vacated

because the conduct underlying those convictions were “so compressed in terms of time,

place, singleness of purpose, and continuity of action as to constitute a single

transaction[.]”Id. at 720-21.

       However, another panel disapproved of that holding in Walker v. State, 932

N.E.2d 733, 737-38 (Ind. Ct. App. 2010). Discussing Buchanan, that panel held:

       To the extent that Buchanan stands for the proposition that a false reporting
       conviction can be vacated because it is part of the same continuing crime as
       robbery, we respectfully disagree. Although Buchanan’s convictions for
       false reporting and robbery were part of the same comprehensive criminal
       scheme, false reporting was a distinct[,] chargeable crime. In considering
       the false reporting conviction, the panel in Buchanan was not faced with
       any of the factual situations in which the continuing crime doctrine has
       been applied; that is, Buchanan was not charged multiple times with false
       reporting, nor was there a greater or lesser included offense involved.

932 N.E.2d at 737-38. The court then held that the continuing crime doctrine did not

apply to Walker’s convictions for burglary, robbery of one person, and the criminal

confinement of another. Id. at 738. “Each offense was a distinct[,] chargeable crime. He

was faced with neither multiple charges of one offense nor charges of an offense and a

lesser included offense.” Id. Thus, the court affirmed Walker’s convictions. Id.

       We agree with the reasoning in Walker. Here, Steelman was charged with three

separate and distinct offenses. While they were committed in the same stretch of time for

the purpose of accomplishing the theft, that does not alter the fact that each was a distinct,

chargeable crime. The essential element of the criminal mischief was the damage to the

window trim on Craig’s vehicle, and the essential element of the unauthorized entry of a

motor vehicle was the entry of Craig’s Explorer. The behavior necessary to commit one


                                              8
offense was not coextensive with the behavior necessary to commit the other. Thus,

unlike in Chavez v. State, Steelman’s conduct did not constitute a single, continuous

offense. 988 N.E.2d 1223, 1229-30 (Ind. Ct. App. 2013) (holding conduct occurring in

two separate sexual encounters with minor constituted two offenses, not five). We hold

that the continuing crime doctrine does not apply here. See id.

      Steelman has not shown that his convictions violate the double jeopardy clause of

the Indiana Constitution, nor has he shown that they fall under the continuing crime

doctrine. As such, we affirm his convictions.

      Affirmed.

MATHIAS, J., and BROWN, J., concur.




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