



Attorney for Appellant

Teresa D. Harper
Liell, McNeil, & Harper
Bloomington, Indiana

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana



      IN THE
      INDIANA SUPREME COURT


EUGENE C. RUFFIN,
      Appellant (Defendant below),

      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).



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)     Supreme Court No.
)     49S00-9802-CR-258
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      APPEAL FROM THE MARION SUPERIOR COURT
      The Honorable Jane Magnus-Stinson, Judge
      Cause No. 49G06-9601-CF-006417



                              ON DIRECT APPEAL



                               March 28, 2000
SULLIVAN, Justice.

      Defendant Eugene Ruffin was convicted of felony  murder  and  reckless
homicide for shooting a  man  to  death.   Defendant  argues  that  (1)  the
evidence was insufficient to support his felony murder  conviction  and  (2)
it was improper to impose judgments and sentences  for  both  felony  murder
and reckless homicide.  We find the  evidence  sufficient,  but  agree  that
convictions of both felony murder and  reckless  homicide  for  killing  the
same person cannot stand.

      We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years.  Ind. Const. art. VII, ' 4; Ind.
Appellate Rule 4(A)(7).

                                 Background

      The facts most favorable to the verdict reveal that  on  December  18,
1995, Defendant,[1] Eugene C. Ruffin, wearing a Chicago Bulls jacket  and  a
pullover shirt with a hood, went to  Chad  Taylor=s  house  and  borrowed  a
shotgun from  him.   The  victim,  Emberson,  owed  Defendant  $140.00,  and
Defendant told Taylor that he wanted the shotgun so  he  could  collect  his
money.


      Later that same evening, Michael Harris was walking down an alley  and
noticed Defendant, wearing a hooded sweatshirt, standing next to  Emberson=s
truck, and talking to  Emberson  who  was  sitting  in  the  driver=s  seat.
Defendant then walked around the truck, got into the passenger=s  side,  and
the truck began to move.  As Harris continued to walk down the alley  toward
a phone booth, he heard a Aloud pop sound@ from the direction of the  truck.
 He turned around to see that the truck had stopped moving.

      Annie Burns, who lived nearby, also heard a sound she described  as  a
Ashot.@  Burns looked out  her  window  after  hearing  the  noise  and  saw
Emberson=s truck in the alley.  She also saw someone  wearing  a  hood  over
his head running from the direction of  the  truck.   At  approximately  the
same time, David Whiteside, Annie Burns=s son and a  friend  of  Emberson=s,
went outside, saw Emberson=s truck, saw someone wearing a sports jacket  and
hood running from the truck, and walked over to the truck to  see  what  was
happening.  When Whiteside realized that Emberson was injured, he  ran  back
to the house and told his mother to call the police.   Emberson  died  of  a
single close range gunshot wound to the head.


      Defendant returned to Chad Taylor=s house the  same  evening.   Taylor
testified that Defendant looked Ashocked, dazed@ and had blood on  the  left
side of his head, hands, Chicago Bulls jacket, and  pants.   Defendant  told
Taylor  and  Larry  Baugh,  Taylor=s  housemate,  that  he   saw   Emberson,
confronted him, and got into an argument with  him  during  which  Defendant
pulled the gun out.  Defendant and Emberson fought over the gun and it  went
off, shooting Emberson.  Later in the week, police came  to  Taylor=s  house
with a search warrant and found a shotgun shell and a Chicago  Bulls  jacket
covered with blood consistent with  Emberson=s.   As  part  of  a  different
search, the police also seized from  Defendant  a  plaid  jacket  which  had
blood on it consistent with Emberson=s.

      Defendant was charged with Murder,[2] Felony Murder,[3] and Conspiracy
to  Commit  Robbery,[4]  a  Class  B  felony.   The  trial   court   granted
Defendant=s Motion for Judgment on the Evidence  as  to  the  Conspiracy  to
Commit  Robbery  count.   The   jury   convicted   Defendant   of   Reckless
Homicide,[5] a lesser included  offense  of  Count  I,  Murder,  and  Felony
Murder as charged in Count II.  The trial court sentenced Defendant to a 60-
year imprisonment  for  his  felony  murder  conviction  and  an  eight-year
imprisonment for his reckless homicide conviction C  the  reckless  homicide
sentence to be served concurrent to the felony murder sentence.
      Additional facts will be provided as necessary.

                                 Discussion

                                      I


      Defendant  asserts  that  the  evidence   presented   at   trial   was
insufficient to establish the requisite element of intent to commit  robbery
C the underlying  offense  for  Defendant=s  felony  murder  charge.[6]   We
neither reweigh the evidence nor assess the credibility  of  witnesses  when
reviewing a sufficiency of the  evidence  claim.   Thornton  v.  State,  712
N.E.2d 960, 961 (Ind. 1999); Hurst v.  State,  699  N.E.2d  651,  654  (Ind.
1998); Roach v. State, 695 N.E.2d 934, 941 (Ind. 1998),  reh=g  denied.   We
only consider the  evidence  favorable  to  the  jury=s  verdict,  draw  all
reasonable inferences  therefrom,  and  will  affirm  a  conviction  if  the
probative evidence and reasonable inferences drawn from the  evidence  could
have led the jury to find a defendant  guilty  beyond  a  reasonable  doubt.
Love v. State,  721 N.E.2d 1244, 1245 (Ind. 1999).

      The evidence shows that Defendant  told  Taylor  that  he  wanted  the
shotgun in order to collect money from someone who owed him a  debt.   After
Emberson  had  been  killed,  Defendant  told  Taylor  and  Baugh  that   he
confronted the person who owed  him  money  and  pulled  the  gun  out  when
Defendant and that person began to argue.  Baugh  specifically  stated  that
Defendant claimed to have killed the  man  for  money.   In  addition,  when
police examined Emberson=s body and the crime scene, the upper  left  breast
pocket of Emberson=s shirt appeared to  have  been  pulled  open  and  down.
From this evidence, the jury could reasonably infer  that  Defendant  killed
Emberson while attempting to take  money  from  him  and  searched  Emberson
before or after he killed him in order to find some money.


      Defendant also claims that he merely intended to collect a  debt  from
Emberson and did not  intend  to  commit  robbery  as  is  required  by  the
statute.  Appellant=s Br. at 7-8.  However, the Alaw does not  sanction  the
use of self-help with firearms as a debt collection  device.@   Sheckles  v.
State, 501 N.E.2d 1053, 1055 (Ind. 1996).  Defendant=s attempt to collect  a
debt by force does not negate the criminal intent element of  robbery.   See
id.   The evidence was ample to support the jury=s  verdict  that  Defendant
was guilty of felony murder.

                                     II

      Defendant argues that it was improper for the  trial  court  to  enter
judgment and impose sentence for both felony murder and  reckless  homicide.
We agree.

      It is well-settled that a Adefendant may  not  be  convicted  of  both
>knowing or intentional= murder and felony murder for  the  killing  of  the
same person.@  Garrett v. State, 714 N.E.2d 618,  621  (Ind.  1999)  (citing
Hicks v. State, 544 N.E.2d 500, 505  (Ind.  1989);  Sandlin  v.  State,  461
N.E.2d 1116, 1119 (Ind. 1984)).  For the same  reason  C   that  Athis  case
involves the homicide of only one  person,@  Sandlin,  461  N.E.2d  at  1119
(citing James v. State, 274 Ind. 304, 305, 411 N.E.2d  618,  617  (1980))  C
Defendant may not be convicted of both felony murder and  reckless  homicide
for killing the same person.


       When judgment of conviction cannot legally be entered on  all  counts
upon which guilty verdicts have been returned, judgment is  entered  on  one
count and the remaining convictions are vacated.  Defendant argues  that  we
should vacate his felony murder conviction because it was the last  entered,
citing Clifft v. Indiana Dep’t  of  State  Revenue,  660  N.E.2d  310  (Ind.
1995).  In Clifft, the Department of State  Revenue  assessed  a  controlled
substance excise tax against the defendant.  See id. at 313.  The  defendant
was later convicted of criminal drug possession for the same  drug  offense.
See id.  We held that the criminal conviction constituted a second  jeopardy
for the same drug offense and must  therefore  be  vacated.   See  id.    In
Clifft, the tax penalty and criminal prosecution were separate  proceedings,
pursued at different times.   Here,  however,  Defendant=s  convictions  for
felony  murder  and  reckless  homicide  resulted  from  charges  prosecuted
simultaneously in a single trial.  Under such  circumstances,  there  is  no
impediment to vacating either conviction.


                                 Conclusion

      We affirm Defendant=s  conviction  and  60-year  sentence  for  felony
murder  and  vacate  Defendant=s  conviction  and  sentence   for   reckless
homicide.


      SHEPARD, C.J, and BOEHM, and RUCKER, JJ., concur.
      DICKSON, J., concurs in result.
-----------------------
      [1] Several entries in the record refer to Defendant by his nickname,
ASqueaky.@

      [2] Ind. Code ' 35-42-1-1(1) (1993).

      [3] Id. ' 35-42-1-1(2).

      [4] Id. '' 35-41-5-2 & 35-42-5-1.

      [5] Id. ' 35-42-1-5.

      [6] The jury instruction for Defendant=s felony murder charge read  in
part:

        To convict the defendant the State must  have  proven  each  of  the
      following          elements:
           The defendant, Eugene C. Ruffin;
              1. killed,
              2. another human being, namely: John Emberson,
              3. while committing or attempting to commit robbery  which  is
                 to knowingly, while armed with a deadly weapon, that is:  a
                 shotgun, take from the person or presence of John  Emberson
                 property, that is: United States Currency, by putting  John
                 Emberson in fear or by using  or  threatening  the  use  of
                 force on John Emberson.





