MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Jul 12 2017, 8:01 am

the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Jodi Kathryn Stein
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Spahr Brown,                                 July 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A02-1610-CR-2385
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard
Appellee-Plaintiff.                                      Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1603-F2-6



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017          Page 1 of 20
                               Case Summary and Issues
[1]   Following a second jury trial, Christopher Brown was convicted of conspiracy

      to commit robbery resulting in serious bodily injury and robbery resulting in

      serious bodily injury, both Level 2 felonies. Brown was also found to be an

      habitual offender. Brown now appeals, raising six issues for our review, which

      we restate as 1) whether Brown was deprived of his right to counsel at a critical

      stage in the proceedings, 2) whether the trial court committed fundamental

      error in permitting the State to amend the charging information, 3) whether the

      trial court erred in admitting identification evidence, 4) whether the trial court

      erred in modifying the jury instructions during deliberations, 5) whether

      Brown’s convictions violate Indiana’s prohibition against double jeopardy, and

      6) whether the trial court’s sentencing order contains an error. We conclude

      Brown was not deprived of his right to counsel at the initial hearing, the trial

      court did not commit fundamental error in permitting the State to amend the

      charging information, and the trial court did not err in admitting evidence. In

      addition, even assuming the trial court erred in modifying the jury instructions,

      Brown has not shown how the modification prejudiced him. However,

      Brown’s convictions violate double jeopardy, in addition to which the trial

      court’s sentencing order contains an error. For these reasons, we affirm in part,

      reverse in part, and remand with instructions.



                            Facts and Procedural History


      Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 2 of 20
[2]   In early January 2015, Ashley Reinholt stayed for several days at a Super 8

      Motel in Logansport, Indiana. Sanjay Amin, an employee and resident of the

      Super 8, knew Reinholt. During this time, Amin observed Brown and his

      cousin, Brandon Black, often visiting Reinholt.


[3]   On January 17, 2015, Reinholt approached Amin offering sex in exchange for

      money. The pair agreed Amin would meet Reinholt at the nearby Manor

      Motel and pay Reinholt $300 for sex. Thereafter, Reinholt informed Brown of

      the agreement and Brown suggested a plan to rob Amin once Amin arrived at

      the Manor Motel. Brown then called Black and informed him of the plan. The

      plan provided Reinholt would leave the motel room unlocked so Brown and

      Black could access the room upon Amin’s arrival. Later that evening, Reinholt

      and Amin met at the Super 8, Amin paid Reinholt $50 to pay for a room at the

      Manor Motel, and the pair agreed to meet at the Manor Motel a few hours

      later.


[4]   At approximately 11:00 p.m., Amin observed Brown and Black pick up

      Reinholt at the Super 8 and followed the trio to the Manor Motel. Reinholt

      then rented a room and texted Amin and Brown the room number. Before

      entering the room, Amin observed Brown and Black appearing to leave.

      Thereafter, Amin entered the room with Reinholt and placed $300 on the

      nightstand. Reinholt left the door unlocked. After Reinholt told Amin to take

      all his clothes off, Brown and Black bolted into the room with masks covering

      their faces. Amin recognized it was Brown and Black based on the clothing

      they were wearing as it was the same clothing the pair had been wearing

      Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 3 of 20
      previously. In addition, Amin also heard either Brown or Black say Reinholt’s

      name. Brown then punched Amin, knocking out three of his teeth. Amin also

      suffered injuries to his face and a laceration to his eye. Brown and Black then

      left the room with the $300 from the nightstand and Amin’s wallet which

      contained $500. Bleeding profusely, Amin returned to the Super 8, and a few

      minutes later, Reinholt texted Brown requesting he pick her up from the Manor

      Motel and drop her off at the Super 8. At the Super 8, Amin observed

      Reinholt, Brown, and Black enter the lobby together. Brown and Black quickly

      left.


[5]   Around midnight, officers from the Logansport Police Department arrived at

      the Super 8 and Reinholt and Amin explained they were victims of a robbery.

      Suspicious of Reinholt’s involvement, law enforcement explained it would

      leave the premises and allow Reinholt to relax before speaking with her the

      following day. Once it appeared law enforcement left, Reinholt immediately

      texted Brown to come pick her up. Unbeknownst to Brown and Reinholt, law

      enforcement remained nearby. Brown and Black arrived at the Super 8 and

      were stopped by law enforcement. Law enforcement then showed Brown and

      Black to Amin and Amin affirmed the pair were the ones who robbed him.


[6]   On January 19, 2015, the State charged Brown with conspiracy to commit

      robbery as a Level 3 felony and battery as a Level 6 felony. The State also

      alleged Brown was an habitual offender. Following a jury trial in February

      2016, the trial court declared a mistrial after the jury deadlocked.



      Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 4 of 20
[7]   On February 24, 2016, the State filed an amendment to the charging

      information to include three additional counts against Brown: conspiracy to

      commit robbery resulting in serious bodily injury as a Level 2 felony (“Count

      III”), robbery resulting in serious bodily injury as a Level 2 felony (“Count

      IV”), and battery resulting in serious bodily injury as a Level 5 felony (“Count

      V”). On February 29, 2016, the trial court held an “Initial hearing” with

      respect to these new charges. Appellant’s Appendix, Volume II at 158. At the

      hearing, the State informed the trial court that it would move to dismiss the

      original two counts that had resulted in a mistrial and proceed only on the three

      new charges. Brown’s counsel was not present at the hearing but the trial court

      entered a plea of not guilty to the new charges on Brown’s behalf. The State

      did not file a motion to dismiss Counts I and II thereafter.


[8]   On July 19, 2016, the State filed a new charging information against Brown and

      Black that included only Counts III-V, now renumbered Counts I-III (hereafter

      referred to as such), and the habitual offender allegation. Brown did not object.

      A joint trial commenced the following day. There, the State admitted evidence

      of the show-up identification and Amin also testified that Brown was one of his

      assailants. The jury found Brown guilty as charged. The trial court entered

      judgment of conviction on all counts, but vacated the battery conviction due to

      double jeopardy concerns. The trial court sentenced Brown to thirty years on

      both Counts I and III, to be served consecutively. The trial court also enhanced

      Brown’s sentence by twenty years due to his habitual offender status for an




      Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 5 of 20
       aggregate sentence of eighty years in the Indiana Department of Correction.

       This appeal ensued. Additional facts will be added as necessary.



                                  Discussion and Decision
                                         I. Right to Counsel
[9]    Brown contends he was deprived of his right to counsel because his counsel was

       not present at the initial hearing on the additional charges on February 29,

       2016.

               A defendant’s right to counsel arises at any point during a
               criminal proceeding in which the absence of counsel would erode
               the defendant’s right to a fair trial. This includes any critical
               stage in which (1) incrimination may occur or (2) where the
               opportunity for effective defense must be seized or be foregone.
               An initial hearing conducted under Indiana’s statutory scheme is
               not a critical stage of the criminal proceeding requiring the
               presence of counsel.


       Hopper v. State, 957 N.E.2d 613, 616-17 (Ind. 2011) (emphasis added) (citations

       and internal quotation marks omitted). In addition, a critical stage exists when

       “the defendant is confronted with the intricacies of the law or the advocacy of

       the public prosecutor or prosecuting authorities.” Hernandez v. State, 761

       N.E.2d 845, 850 (Ind. 2002). A defendant bears the burden of establishing a

       stage in a proceeding is indeed “critical.” Id.


[10]   The initial question is whether the February 29 hearing was an initial hearing.

       Brown argues the hearing was not an initial hearing, because contrary to typical

       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 6 of 20
       initial hearings, the State was attempting “to seek court approval to increase the

       severity and number of charges against Brown . . . .” Appellant’s Reply Brief at

       12. We find this hearing was an initial hearing for several reasons despite a

       decision in Brown’s co-defendant’s case, No. 09A04-1610-CR-2312, that found

       that the hearing was not an initial hearing, but rather a “continuance” of earlier

       proceedings.


[11]   Following the mistrial, the State filed the amended information on February 24

       and Brown’s attorney, who did not appear at the hearing, was provided with a

       copy of the amended information. At the hearing on February 29, the trial

       court proceeded as if it was an initial hearing, evidenced notably by the trial

       court describing the hearing as an initial hearing, ensuring Brown’s counsel had

       been provided a copy of the amended information, ensuring Brown understood

       the nature of the charges against him, and by stating: “I’m just here to notify

       these gentlemen what they’re being charged with so they understand.”

       Transcript, Volume II at 163. In addition, the trial court entered not guilty

       pleas on the new charges on Brown’s behalf. The trial court’s actions are

       consistent with the purpose of an initial hearing: inform a defendant of the

       nature of the charges against him pursuant to Indiana Code section 35-33-7-5.

       Further, Brown’s counsel’s absence at the hearing indicates he also treated this

       hearing as a mere formality akin to an initial hearing. While this may not have

       been a typical “initial hearing” because this hearing occurred after a mistrial, its

       purpose and procedure are typical. For this reason, Brown’s argument fails.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 7 of 20
[12]   This hearing was also not a critical stage of the proceedings requiring counsel’s

       presence without regard to any title delineation of the hearing. Brown attempts

       to meet his burden of proving he was faced with the intricacies of the law

       and/or the advocacy of the prosecutor by arguing counsel’s presence was

       necessary at the hearing in order to object to the State’s amendment. 1 However,

       counsel’s presence at the hearing was not critical; nothing occurred at the

       hearing that could have jeopardized Brown’s rights, including his right to a fair

       trial. See Hopper, 957 N.E.2d at 616 (“A defendant’s right to counsel arises at

       any point during a criminal proceeding in which the absence of counsel would

       erode the defendant’s right to a fair trial.”). Any objection that counsel might

       have made at the hearing was not waived nor was Brown’s right to later

       challenge the State’s amendment waived. All of Brown’s concerns remained

       ripe for objections and motions by his counsel at a later date. We conclude

       Brown has not met his burden of proving he was deprived of his right to counsel

       at a critical stage of the proceedings.2




       1
         Specifically, Brown contends his counsel could and would have objected to the State’s amendment on the
       following bases: (1) the State did not follow Indiana law in amending the information, (2) the amendment
       violated his double jeopardy rights, and (3) the State’s amendment was vindictive.
       2
        Even assuming Brown was deprived of counsel at a critical stage, the deprivation is subject to harmless
       error analysis so long as the deprivation cannot be harmless by its very nature. See Hernandez, 761 N.E.2d at
       849. As demonstrated above, Brown’s counsel knew of the amended charges prior to the hearing and had
       approximately five months prior to trial to challenge the State’s amendment, which he did not do. Thus,
       Brown had ample opportunity to object to the State’s amendment and to prepare a meaningful defense
       against the charges. We conclude any deprivation of Brown’s right to counsel was harmless.

       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017              Page 8 of 20
                  II. Amendments to the Charging Information
[13]   As noted above, the original trial resulted in a mistrial and the State thereafter

       filed an amended charging information to include Counts I-III. The trial court

       then held an initial hearing on the additional charges on February 29, 2016. At

       the hearing, the State informed the trial court that it would be dismissing the

       original two charges that resulted in a mistrial. At no point during the

       following five months did Brown object to the State’s action. On July 19, 2016,

       the day before the second trial commenced, the State filed an amended

       information including only Counts I-III and an habitual offender allegation.

       Brown also did not object to the July 19 amendment. 3


[14]   On appeal, Brown contends the State improperly amended the charging

       information on February 29 and July 19 thereby prejudicing his substantial

       rights. Specifically, he claims he was prejudiced because the amendment

       altered factual and legal defenses available to him. The State counters Brown

       waived any challenge to the filing of the amended information by failing to

       object to the amendments and/or to request a continuance. We agree with the

       State.




       3
         It is necessary to note the State made two additional amendments to the charging information during trial.
       Unlike the two amendments that occurred prior to trial, when the State made these day-of-trial amendments,
       Brown objected each time and moved for a continuance. The trial court overruled each of the objections and
       denied the motions, reasoning the State’s amendments during trial were technical, not substantive. We
       emphasize Brown does not challenge the trial court’s decisions regarding the two in-court amendments;
       rather he only challenges the amendments that occurred prior to trial.

       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017            Page 9 of 20
[15]   Indiana Code section 35-34-1-5(b) permits amendments to the substance of

       charging information at any point prior to trial so long as the amendment does

       not prejudice the substantial rights of the defendant. Wilson v. State, 931 N.E.2d

       914, 917-18 (Ind. Ct. App. 2010), trans. denied. A defendant seeking to

       challenge a pre-trial substantive amendment to the charging information must

       first object to the amendment, and if overruled, request a continuance. Id. at

       918. Here, the record reveals the amendments were substantive in nature,

       Brown received notice of the amendments, and as the State properly asserts,

       Brown did not object to the amendments in either February or July. For this

       reason, Brown has waived any challenge to the trial court permitting the

       amendments. See id.


[16]   Because Brown has waived this issue, he must now prove the trial court’s act of

       permitting the State to amend the information constitutes fundamental error.

       See Gibson v. State, 51 N.E.3d 204, 211-12 (Ind. 2016). “Fundamental error is

       an extremely narrow exception to the waiver rule where the defendant faces the

       heavy burden of showing that the alleged error[ ][is] so prejudicial to the

       defendant’s rights as to make a fair trial impossible.” Id. at 212 (alterations in

       original) (citation and internal quotation marks omitted). Thus, Brown must

       show the trial court erred in not sua sponte raising issues with the amendments

       when the issues clearly amounted to a blatant violation of Brown’s right to due

       process and presented an undeniable and substantial potential for harm. Id.


[17]   Based on our review of the record and assuming the trial court erred, we are not

       persuaded Brown suffered any prejudice, let alone prejudice amounting to

       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 10 of 20
       fundamental error. In February, the State filed an amendment to the charging

       information to include Counts I-III. Brown received notice of the State’s

       amendment before the initial hearing on February 29, 2016, but counsel did not

       appear at the hearing. Over the next five months, Brown did not object to or

       challenge the State’s action. And as to the State’s July amendment, we merely

       note Brown received the benefit of the State dismissing two counts against him.

       Thus, by the start of trial, Brown had known of the charges against him for

       approximately five months and this period gave him time to prepare a

       meaningful defense. Following the State’s amendments, Brown had a full

       opportunity to defend against the State’s charges. Therefore, even assuming the

       trial court erred in permitting the State to amend the charges, we conclude

       Brown has waived this claim and failed to establish any error in amending the

       information amounts to fundamental error.


                                  III. Admission of Evidence
[18]   We review a trial court’s decision regarding the admission of evidence for an

       abuse of discretion. Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans.

       denied. A trial court abuses its discretion if its decision is clearly against the

       logic and effect of the facts and circumstances before the court, or if the court

       has misinterpreted the law. Id.


[19]   Brown contends the trial court abused its discretion in admitting evidence of

       Amin’s identification of Brown during the show-up procedure. Specifically, he

       claims the show-up procedure was unduly suggestive and therefore the


       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 11 of 20
       admission of any evidence of Amin identifying Brown as an assailant, whether

       during the show-up or at trial, was an abuse of discretion. The State counters

       the identification procedure was not unduly suggestive, and in the alternative,

       Amin’s in-court identification of Brown was supported by an independent basis.

       At the very least, we agree Amin’s in-court identification of Brown was

       supported by an independent basis and therefore any error in admission of

       evidence pertaining to Amin’s identification of Brown during the show-up

       procedure is harmless.


[20]   Due process of law requires the suppression of pretrial identification if the

       identification procedure is unduly suggestive. Id. However,


               Even where a show-up identification is deemed unduly
               suggestive, a subsequent, in-court identification may still be
               admissible if the State proves that an independent basis for the in-
               court identification exists. In determining whether an
               independent basis for the in-court identification exists, the
               inquiry is whether, under the totality of the circumstances
               surrounding the witness’s initial observation of the perpetrator at
               the scene of the crime, the witness could (1) resist any
               suggestiveness inherent in the improper show-up staged by the
               police and (2) make an accurate in-court identification based on
               that earlier observation.


       Id. at 25 (citations omitted).


[21]   Here, the totality of the circumstances demonstrate Amin had previously

       observed Brown and his relationship with Reinholt, who was staying at the

       Super 8. On the date in question, Amin again observed Reinholt with Brown.


       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 12 of 20
       Specifically, Amin observed Reinholt get into the car at the Super 8 with Brown

       and Black, Amin followed the trio to the Manor Motel, Amin watched as

       Brown and Black stayed in the parking lot while Reinholt booked a room, and

       when Amin went to park his car, he further observed Brown and Black in the

       parking lot. When masked assailants entered the room, Amin recognized the

       pair as Brown and Black because the assailants were wearing the same clothes

       that Brown and Black were wearing the times Amin had previously seen them

       that day. In addition, Amin heard one of the assailants say Reinholt’s name

       and later observed Brown and Black return to the Super 8 with Reinholt, further

       corroborating Amin’s belief the masked assailants were Brown and Black.

       When law enforcement then conducted the show-up, Brown and Black were

       wearing the same clothes. In light of these observations, it is clear Amin could

       resist any suggestiveness in the show-up staged by police and confidently and

       accurately make an in-court identification of Brown. We conclude even if the

       trial court erred in admitting evidence of the show-up identification, such an

       error was harmless because the admission of Amin’s in-court identification of

       Brown was not an abuse of discretion.


                      IV. Jury Instructions and Verdict Forms
[22]   As noted above, the State alleged Brown was an habitual offender based upon

       three prior unrelated felony convictions for perjury, theft, and burglary. The

       convictions for theft and perjury occurred in Indiana. As to the burglary

       conviction, Brown was convicted under Ohio cause number 09CR58 and the

       State admitted evidence showing the same. However, the habitual offender

       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 13 of 20
       information originally filed by the State showed the conviction under cause

       number 09CR56 and the jury instructions and special verdict form instructed

       the jury to decide—specifically—whether Brown was previously convicted for

       burglary in Ohio under cause number 09CR56. Thus, the original habitual

       offender information, the jury instructions, and the special verdict form all

       contained a scrivener’s error.


[23]   During deliberations, the jury recognized the contradiction in the cause

       numbers and sought clarification from the trial court. The State apologized for

       its error and moved the trial court to amend the information to correct the cause

       number to reflect 09CR58. Brown objected and moved to dismiss the habitual

       offender enhancement. The trial court then denied both motions and informed

       the parties the proper way to remedy the situation would be for the State to

       move to dismiss either the perjury or theft allegation contained in the habitual

       offender information and then the trial court would supplement the original

       special verdict form with a general verdict form. The State dismissed its

       allegation that Brown was previously convicted of theft in Indiana. Over

       Brown’s objection to the trial court’s remedy, the trial court called the jury back

       into the courtroom, instructed the jury to ignore the State’s theft allegation, and

       provided the jury with a general verdict form that did not contain any reference

       to the Ohio cause number. The jury found Brown to be an habitual offender.


[24]   On appeal, Brown challenges the trial court’s act of altering the instructions

       and the verdict form after jury deliberations began. Specifically, he claims the

       procedure “effectively told the jury what it ought to do concerning the issue of

       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 14 of 20
       whether Brown was an habitual offender.” Amended Appellant’s Brief at 38.

       The State acknowledges the trial court’s procedure was not appropriate, but

       counters any error did not prejudice Brown. We agree with the State.


[25]   At the outset, we note Brown does not challenge whether the evidence is

       sufficient to support a finding that he is an habitual offender. During the

       habitual offender phase, the State alleged only one burglary conviction from

       Ohio and the evidence submitted by the State contained the correct cause

       number for this conviction. Due to a scrivener’s error, however, the State

       included the incorrect cause number on the information and the trial court

       subsequently followed that information—not the evidence—when drafting the

       special verdict form, leading to the jury’s confusion. Therefore, the jury was

       not confused as to whether Brown was in fact convicted of burglary in Ohio;

       rather, the jury was confused on how to specifically find on the special verdict

       form that Brown was convicted under cause number 09CR56 when the

       evidence showed Brown was convicted under 09CR58. To clear this confusion,

       the trial court merely switched the special verdict form to a general verdict form

       thereby alleviating the need for the jury to specifically find that Brown was

       convicted of burglary in Ohio under a specific cause number. In addition, the

       switch from the special verdict form to a general verdict form still tasked the

       jury with finding whether Brown was an habitual offender based on the

       evidence admitted by the State. We conclude any error in amending the jury

       instructions and verdict form during jury deliberations did not prejudice Brown.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 15 of 20
                                        V. Double Jeopardy
[26]   Brown contends his convictions for conspiracy to commit robbery causing

       serious bodily injury and robbery causing serious bodily injury violate Indiana’s

       common law prohibition against double jeopardy because each charge was

       enhanced based upon evidence of the same injury to the same person.

       Specifically, he claims there is a reasonable probability the jury relied on

       evidence of Brown knocking out Amin’s teeth in finding him guilty on each

       count. We agree.


[27]   Article 1, Section 14 of the Indiana Constitution provides, “[n]o person shall be

       put in jeopardy twice for the same offense.” In addition to this constitutional

       protection, our supreme court has long adhered to a series of rules of statutory

       construction and common law that are often described as double jeopardy but

       are not governed by the constitutional test. Pierce v. State, 761 N.E.2d 826, 830

       (Ind. 2002). Among these common-law rules is the doctrine that where a

       felony conviction is enhanced based on the same bodily injury that forms the

       basis of or enhances another conviction, the two convictions cannot stand as is.

       See id.; Smith v. State, 872 N.E.2d 169, 176-77 (Ind. Ct. App. 2007) (“[W]e

       conclude that if the same bodily injury was used to enhance [the defendant’s]

       convictions of burglary to a Class A felony as was used to enhance his

       conviction of robbery to a Class A felony, entering a judgment of conviction for

       both counts would be improper.”), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 16 of 20
[28]   Here, the State charged Brown under Count I with conspiracy to commit

       robbery as a Level 2 felony, alleging Brown caused serious bodily injury by

       knocking out three of Amin’s teeth. As to Count II, the State charged Brown

       with robbery as a Level 2 felony, alleging the same serious bodily injury. The

       evidence admitted at trial demonstrates Amin also suffered injuries to his eye

       and face. Neither the trial court’s preliminary nor final instructions reference

       the specifics of Amin’s injuries except for the instructions restating the charging

       information. And during closing arguments when addressing the allegations of

       serious bodily injury on both counts, the State consistently referenced Brown’s

       act of knocking out Amin’s teeth. Therefore, despite there being evidence

       Amin suffered other injuries apart from losing his teeth, we conclude the

       serious bodily injury upon which each conviction rests is the injury to his teeth.


[29]   Because Brown’s convictions violate double jeopardy, we must next address the

       remedy. “When two convictions are found to contravene double jeopardy

       principles, a reviewing court may remedy the violation by reducing either

       conviction to a less serious form of the same offense if doing so will eliminate

       the violation.” Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999). Indiana

       Code section 35-42-5-1 provides,

               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;


       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 17 of 20
               commits robbery, a Level 5 felony. However, the offense is a
               Level 3 felony if it . . . 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.


[30]   Brown argues his conviction for robbery as a Level 2 felony must be reduced to

       a Level 5 felony which does not include an element of causing bodily injury.

       The State counters Brown’s conviction for robbery as a Level 2 felony should be

       reduced to robbery causing bodily injury as a Level 3 felony because there is

       evidence Brown also injured Amin’s eye and face. As noted above, the double

       jeopardy violation is that each of Brown’s Level 2 felony convictions were

       enhanced because Brown knocked out Amin’s teeth. If we were to accept the

       State’s argument that the robbery conviction should be reduced to a Level 3

       felony, the violation would not be cured because there would still be a double

       enhancement based on the evidence of Brown knocking out Amin’s teeth. The

       only way to cure this double jeopardy violation is to reduce one of Brown’s

       convictions to a lesser offense that does not include any bodily injury as a

       statutory element, that is, robbery as a Level 5 felony. See Montgomery v. State,

       21 N.E.3d 846, 866-67 (Ind. Ct. App. 2014), trans. denied. We therefore reverse

       Brown’s conviction for robbery as a Level 2 felony, instruct the trial court on

       remand to enter judgment of conviction for robbery as a Level 5 felony and

       sentence Brown to six years, the maximum sentence for a Level 5 felony, to be

       served consecutively to Brown’s thirty-year sentence on Count I. This sentence

       is in accord with the trial court’s original maximum and consecutive sentence.

       See Young v. State, 57 N.E.3d 857, 860 (Ind. Ct. App. 2016) (“Upon remedying a


       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 18 of 20
       double jeopardy issue, the trial court need not undertake a full sentencing

       reevaluation, but rather the reviewing court will make this determination itself,

       being mindful of the penal consequences that the trial court found

       appropriate.”) (citation and internal quotation marks omitted), trans. denied.


                                       VI. Sentencing Order
[31]   Brown contends the trial court’s sentencing order is at odds with the abstract of

       judgment and the trial court’s sentencing statement. Specifically, he argues the

       sentencing order does not reflect the trial court’s intent to vacate the battery

       conviction. The State agrees. On remand, the trial court is also instructed to

       amend its sentencing order to reflect that Brown’s conviction for battery is

       vacated.



                                               Conclusion
[32]   We conclude Brown was not deprived of his right to counsel at a critical stage

       of the proceedings, the trial court did not commit fundamental error in

       permitting the State to amend the charging information prior to trial, and the

       trial court did not err in admitting identification evidence. In addition, even

       assuming the trial court erred in modifying the jury instructions, Brown has not

       shown prejudice from the error. We further conclude, however, Brown’s

       convictions violate double jeopardy and the trial court’s sentencing order

       contains an error. On remand, the trial court is to enter judgment of conviction

       for robbery as a Level 5 felony and sentence Brown on that count to six years,

       the maximum for a Level 5 felony. The trial court is also instructed on remand
       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 19 of 20
       to amend the sentencing order to reflect that Brown’s conviction for battery is

       vacated. Accordingly, we affirm in part, reverse in part, and remand with

       instructions.


[33]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017   Page 20 of 20
