      MEMORANDUM DECISION                                               FILED
                                                                    Jul 27 2016, 5:41 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                      CLERK
                                                                    Indiana Supreme Court
      precedent or cited before any court except for the               Court of Appeals
                                                                         and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Gregory L. Fumarolo                                       Gregory F. Zoeller
      Fort Wayne, Indiana                                       Attorney General of Indiana
                                                                Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
             COURT OF APPEALS OF INDIANA

      Talon L. Roper,                                           July 27, 2016

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A04-1601-CR-110
                 v.                                             Appeal from the Allen Superior
                                                                Court.
                                                                The Honorable Frances C. Gull,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 02D05-1505-F2-9




      Garrard, Senior Judge

[1]   Following a bench trial, Talon Roper was found guilty of robbery as a Level 2
                  1
      felony. The trial court also found beyond a reasonable doubt that Roper used a




      1
          Ind. Code § 35-42-5-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016     Page 1 of 8
                                                           2
      firearm when he committed the robbery. The sole issue Roper raises on

      appeal, as restated, is whether his sentence enhancement for committing

      robbery resulting in serious bodily injury by use of a firearm violated double

      jeopardy. We affirm.


[2]   On April 27, 2015, the victim, Bacilio Garcia, left work early due to illness and

      returned to his home in Fort Wayne, Indiana, sometime between 8:00 a.m. and

      9:30 a.m. While Garcia stood on the back patio smoking a cigarette, he

      observed Roper pulling on the door handles of the cars parked on the street.

      When Roper pulled on the door handle of a car belonging to Garcia’s neighbor,

      Garcia called to Roper and told him to “get away from that vehicle, [sic] I

      know it’s not your property.” Tr. p. 14. Roper replied, “What the [expletive]

      are you going to do about it.” Id. at p. 15. Garcia, with his cell phone in hand,

      made a gesture indicating Roper should leave the car alone.


[3]   Roper brandished a handgun and fired twice at Garcia – walking closer to

      Garcia between shots. Both shots missed Garcia. Roper fired the gun a third

      time and a bullet struck Garcia in the abdomen. Garcia collapsed on the porch.

      While Garcia lay on the porch wounded, Roper walked to Garcia, grabbed

      Garcia’s cell phone from his hand, and jogged away.




      2
          See Ind. Code § 35-50-2-11 (2014).


      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016   Page 2 of 8
[4]   Garcia managed to crawl inside his house. He called to his mother-in-law, who

      was asleep on the couch, and told her he had been shot. Garcia’s mother-in-

      law called 911.


[5]   Police officers from the Fort Wayne Police Department and medics arrived at

      Garcia’s house. Garcia told the officers what happened to him and provided a

      description of the person who shot him. While Garcia was tended to medically,

      the police officers began looking for the individual Garcia had described. One

      of the officers observed an individual walking near the scene of the shooting

      who matched the description provided by Garcia. The individual later was

      identified as Roper. When Roper saw the officer, he began to run away. The

      officer pursued Roper and watched him walk into a backyard of a house and

      “throw a black object.” Id. at 53.


[6]   The officer eventually ordered Roper to stop; Roper complied; and, the officer

      placed Roper in handcuffs. Roper was patted down and Garcia’s cell phone

      was found in his pocket. The handgun used to shoot Garcia was found in the

      yard where Roper had discarded it.


[7]   When Garcia arrived at the hospital, he underwent the first of three surgeries

      due to the seriousness of his injuries. His wounds were repaired and he

      eventually was released from the hospital. The bullet could not be removed

      surgically and remains lodged in Garcia’s hip.


[8]   Roper was arrested and charged with Level 2 felony robbery and Level 3 felony

      aggravated battery. The State filed an amended information, seeking a

      Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016   Page 3 of 8
       sentencing enhancement based on Roper’s use of a firearm in the commission

       of the robbery. Roper waived his right to a jury trial and his trial was heard by

       the court. At the conclusion of the trial, the court found Roper guilty as

       charged. The court sentenced Roper to twenty years for Level 2 felony robbery,

       and enhanced the sentence by ten years due to Roper’s use of a firearm – for an
                                                                   3
       aggregate sentence of thirty years executed. Roper appeals.


[9]    Roper contends he was subjected to double jeopardy when his sentence for

       robbery resulting in serious bodily injury was enhanced because he used a

       firearm to commit the offense. According to Roper, “either the ‘single larceny

       rule’, the ‘continuous crime doctrine’, the ‘statutory evidence test’, or the

       ‘actual evidence test’ operate[s] as a double jeopardy bar against [his]

       conviction and/or sentencing for [Level 2 felony robbery and the sentencing

       enhancement.]” Appellant’s Br. p. 9.


[10]   The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person

       shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.

       Our supreme court concluded that two or more offenses are the same offense in

       violation of article 1, section 14 if, with respect to either the statutory elements

       of the challenged crimes or the actual evidence used to obtain convictions, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense. See Garrett v. State, 992 N.E.2d 710, 719 (Ind.




       3
           The court vacated the Level 3 aggravated battery count on double jeopardy grounds.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016      Page 4 of 8
       2013) (citing Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)). Sentencing

       enhancements are not offenses for double jeopardy purposes. Cooper v. State,

       940 N.E.2d 1210, 1215 (Ind. Ct. App. 2011), trans. denied. “[T]he Firearm

       Enhancement Statute [, Ind. Code § 35-50-2-11,] only prescribes an additional

       penalty for felonies that are committed with the use of a firearm.” Id.


                                           Statutory Evidence Test

[11]   Roper maintains his conviction of Level 2 felony robbery and the sentencing

       enhancement for his use of a firearm violate the statutory elements test. Roper

       contends the essential statutory elements alleged in the robbery and the

       sentencing enhancement counts are “virtually identical.” Appellant’s Br. p. 18.

       As such, his convictions and sentencing on both counts constitute a double

       jeopardy violation. We disagree. Sentencing enhancements are not offenses for

       double jeopardy purposes. See Cooper, 940 N.E.2d at 1215. Roper’s double

       jeopardy claim on the basis of the statutory evidence test fails.


                                             Actual Evidence Test

[12]   Roper argues his conviction of robbery resulting in bodily injury and the

       enhancement for use of the firearm violate the actual evidence test. “Under the

       actual evidence test, we examine the actual evidence presented at trial in order

       to determine whether each challenged offense was established by separate and

       distinct facts.” Garrett, 992 N.E.2d at 719. To find a double jeopardy violation

       under this test, we must conclude that there is “‘a reasonable possibility that the

       evidentiary facts used by the fact-finder to establish the essential elements of


       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016   Page 5 of 8
       one offense may also have been used to establish the essential elements of a

       second challenged offense.’” Id. (quoting Richardson, 717 N.E.2d at 53).

       Roper’s double jeopardy argument on the basis of the actual evidence test fails

       for the same reason his statutory evidence test claim failed. Sentencing

       enhancements are not offenses for double jeopardy purposes. See Cooper, 940

       N.E.2d at 1215.


                          Single Larceny Rule/ Continuous Crime Doctrine

[13]   Roper contends his convictions and sentence for both Level 2 felony robbery

       and the sentencing enhancement violated the single larceny rule and the

       continuous crime doctrine. According to Roper, because the confrontation

       between him and Garcia took place over a short period of time and in a

       localized area, only one chargeable crime was committed for which only one

       sentence is appropriate. We agree with Roper’s premise but do not reach the

       same conclusion.


[14]   The single larceny rule has historically provided that “when several articles of

       property are taken at the same time, from the same place, belonging to the same

       person or to several persons there is but a single ‘larceny’, i.e. a single offense.”

       Raines v. State, 514 N.E.2d 298, 300 (Ind. 1987). “The rationale behind this rule

       is that the taking of several articles at the same time from the same place is

       pursuant to a single intent and design.” Id. (citation omitted). “If only one

       offense is committed, there may be but one judgment and one sentence.” Id.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016   Page 6 of 8
[15]   The continuous crime doctrine is a rule of statutory construction and common

       law limited to situations where a defendant has been charged multiple times

       with the same offense. Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015). The

       doctrine “applies only where a defendant has been charged multiple times with

       the same ‘continuous’ offense.” Id. at 1220.


[16]   The only offense Roper committed was robbery resulting in serious bodily

       injury. He took only one item from Garcia, that is, Garcia’s cell phone. Roper

       was charged and convicted of one count of Level 2 felony robbery and one

       count of sentencing enhancement due to his use of a firearm when he

       committed the robbery. Roper did not take multiple items when he committed

       robbery, and he was not convicted of multiple charges of robbery or sentencing

       enhancement. Neither the single larceny rule nor the continuous crime doctrine

       applies under these circumstances.


                                              Ind. Code § 35-50-2-11

[17]   Roper next attempts to rely on subsection (i) of Indiana Code section 35-50-2-11
                                                                       4
       (2015) to support a claim of double jeopardy. Indiana Code section 35-50-2-11

       provides in relevant part:




       4
         Roper’s offense was committed on April 27, 2015. Indiana Code section 35-50-2-11 was amended,
       effective July 1, 2015, to include (among other things) subsection (i). Roper asks this court to apply the
       amended statute to his case under the doctrine of amelioration. The doctrine of amelioration is an
       exception to the general rule that the sentence in effect at the time a crime is committed is the proper
       penalty. Richards v. State, 681 N.E.2d 208, 213 (Ind. 1997). The doctrine entitles defendants who are
       sentenced after the effective date of a statute providing for a more lenient sentence to be sentenced
       pursuant to that statute, as opposed to the statute in effect at the time the crime was committed. Id.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016                  Page 7 of 8
               (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.
               ...
               (g) If the . . . court (if the hearing is to the court alone) finds that
               the state has proved beyond a reasonable doubt that the person
               knowingly or intentionally used a firearm in the commission of
               the offense under subsection (d), the court may sentence the
               person to an additional fixed term of imprisonment of between
               five (5) years and twenty (20) years.
               ...
               (i) A person may not be sentenced under subsection[ ] (g) . . . for
               offenses, felonies, and misdemeanors comprising a single episode
               of criminal conduct.


[18]   We find Roper’s argument inapposite because he was not convicted of multiple

       charges.


[19]   For the reasons stated above, the judgment of the trial court is affirmed.


[20]   Affirmed.


[21]   Vaidik, C.J., and Barnes, J., concur.




       We decline to determine whether the doctrine applies here, as we find Roper’s claim of double
       jeopardy under Ind. Code § 35-50-2-11(i) inapposite.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-110 | July 27, 2016             Page 8 of 8
