                                                                        Aug 31 2015, 8:28 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                        Gregory F. Zoeller
      Anderson, Indiana                                          Attorney General of Indiana
                                                                 Monika Prekopa Talbot
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Lamar Caldwell,                                    August 31, 2015
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 22A01-1411-CR-479
              v.                                                 Appeal from the Floyd Superior
                                                                 Court
      State of Indiana,                                          The Honorable Susan L. Orth,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 22D01-0712-FA-858



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Indiana Evidence Rule 404(b) provides that evidence of a crime, wrong, or

      other act is not admissible to prove a person’s character in order to show that on

      a particular occasion the person acted in accordance with the character.

      Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015                Page 1 of 20
      However, the evidence may be admissible for another purpose, such as proving

      identity. The identity exception was crafted primarily for “signature” crimes

      with a common modus operandi. The exception’s rationale is that the crimes,

      or the means used to commit them, are so similar and unique that it is highly

      probable that the same person committed all of them. Crimes that are only

      “generally similar” do not qualify under this exception; rather, the crimes must

      be “strikingly similar.”


[2]   Anthony Lamar Caldwell was charged with Class A felony burglary and Class

      A felony attempted rape for breaking into a woman’s house, badly beating her,

      and attempting to rape her. At trial, the State introduced evidence that

      Caldwell looked in the window at another woman’s house—which was in the

      same neighborhood—fifty-seven days later. The trial court admitted this

      evidence under the identity exception in Evidence Rule 404(b) because it found

      that the second crime was “sufficiently similar” to the first crime and the crimes

      demonstrated Caldwell’s “signature.” The jury found Caldwell guilty as

      charged, and the trial court sentenced him to an aggregate term of 100 years.


[3]   Although there are general similarities between the crimes, we find that the

      similarities are not striking, primarily because the second incident did not

      involve an entry into the woman’s house or a sexual assault. Because they are

      not signature crimes, we conclude that the trial court abused its discretion in

      admitting evidence of the second crime. Nevertheless, we find that the error is

      harmless in light of the fact that Caldwell’s DNA was found at the scene of the

      first crime and the jury was admonished to consider the second crime for

      Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 2 of 20
      identification purposes only. In addition, because the enhancements to

      Caldwell’s burglary and attempted-rape convictions violate the common-law

      prohibition against double jeopardy, we reduce Caldwell’s burglary conviction

      from a Class A felony to a Class B felony, thereby resulting in a new aggregate

      sentence of seventy years.



                             Facts and Procedural History
[4]   On July 21, 2003, fifty-six-year-old L.C. lived alone at 1770 Lynwood Drive in

      New Albany, Indiana. That night, L.C. went to bed around 9:45 p.m. Her

      laundry-room window, which did not have a screen, was closed at the time.

      While she was in bed, L.C. heard a noise coming from the laundry room. L.C.

      got out of bed, put on her robe, and walked down the hall, turning on the light.

      As L.C. rounded the corner into the living room, a man stepped out and

      grabbed her. According to L.C., the man wore a light-blue t-shirt, a brown belt,

      and blue jeans; was about 5’10” to 6’ tall; weighed about 175 pounds; and was

      about twenty-five to thirty years old. However, L.C. was unable to see the

      man’s face or ascertain his race, and she was never able to identify him. Tr. p.

      525, 527-28, 537, 547.


[5]   After the man grabbed L.C., he pulled her robe over her head and started

      pushing her back toward the bedroom. During this process, the man hit L.C. in

      the face with his fists. When L.C. tried to cover her face with her hands and

      screamed, the man hit her harder. He also ripped off her underwear. Once

      they got to the base of the bed in L.C.’s bedroom, the man hit her so hard that

      Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 3 of 20
      she briefly lost consciousness and fell to the floor. The next thing L.C.

      remembered was the man putting a bed pillow over her face. L.C., who

      thought she was going to die, struggled to push the pillow away. When the

      man touched the outside of L.C.’s vagina with his hand, she exclaimed, “Jesus,

      Jesus.” Id. at 132. The man then abruptly ended the attack and left.


[6]   L.C. called 911 at 10:14 p.m. An ambulance took L.C. to Floyd Memorial

      Hospital, where she was hospitalized for two days. She had a broken eye

      socket, a laceration below her right eye, and broken bones in her left hand and

      fingers. She also had significant bruising and swelling in her face. See State’s

      Ex. 6, 7.


[7]   Responding officers determined that the perpetrator had entered L.C.’s house

      through the laundry-room window. There were no other signs of forced entry.

      Officers discovered blood on the blinds covering the laundry-room window,

      and an evidence technician took a swab of the blood for DNA testing. Officers

      also discovered mud on the wall below the laundry-room window, blood on a

      bed pillow and the carpet, and torn underwear. Nothing had been taken from

      the house.


[8]   Over four years later, in November 2007, the DNA from the blood on the

      laundry-room blinds matched Caldwell’s profile in the National DNA

      Database. As a result of the match, in December 2007 the State charged

      Caldwell with Count I: Class A felony burglary (bodily injury) and Count II:




      Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 4 of 20
      Class A felony attempted rape (deadly force),1 and the trial court issued a

      warrant for his arrest. Caldwell, however, was not arrested until six years later

      in December 2013. See Appellant’s App. p. 2.


[9]   Before trial, the State filed a notice of intent to present evidence regarding “[a]

      traffic stop of Anthony Caldwell on September 17, 2003[2] at or near 3309

      Mellwood Avenue, New Albany, Indiana and investigation into Caldwell

      attempting to look into a window at 3309 Mellwood Avenue.” Id. at 40. The

      State claimed that this evidence was admissible under the identity exception in

      Indiana Evidence Rule 404(b). Caldwell filed a motion in limine, seeking to

      exclude, among other things, “[a]ny discussion of the traffic stop on September

      17, 2003 involving [him].” Id. at 53. A hearing was held, and the parties

      discussed the events leading up to the traffic stop. Specifically, fifty-seven days

      after the break-in and attempted rape at L.C.’s house, sixty-year-old J.H.

      reported to the police at 11:06 p.m. that when she was home alone at 3309

      Mellwood Avenue, a black male was in her backyard looking in her window

      but left when she turned on the lights. See Tr. p. 70-97. J.H. lived

      approximately twelve or thirteen houses from L.C. Minutes after the report,

      the police pulled over Caldwell, who was driving away from the area at “a




      1
        The State originally charged Caldwell with four counts; however, in September 2014 the State amended
      Counts I and II and dismissed Count III (Class B felony aggravated battery) and Count IV (Class D felony
      criminal confinement). See Appellant’s App. p. 56-57.
      2
       The incident actually began on September 16 but continued into the early-morning hours of September 17.
      For consistency purposes, we refer to it as the September 17, 2003 incident.

      Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015                      Page 5 of 20
       fairly accelerated speed,” for an expired license plate. Id. at 584. The police

       noticed that Caldwell was sweating, the bottom of his pant legs were wet, and

       although he was wearing dry shoes, he had a pair of wet shoes covered in grass

       clippings in the backseat of his car. Caldwell told the police that he was in the

       area visiting a female friend, who lived at University Woods apartments.

       Although Caldwell’s route did not make sense to the police, they contacted the

       female, who confirmed that Caldwell had recently been staying with her and

       that they were romantically involved. The police took an audiotaped statement

       from Caldwell on the scene, during which Caldwell explained that he was

       initially wearing tennis shoes but later changed into different shoes after he cut

       through a yard and park while visiting his female friend. Caldwell was not

       arrested for the peeping incident at J.H.’s house and was allowed to leave.

       Because Caldwell’s car was towed due to the expired license plate, he left the

       scene on foot in the direction of University Woods.


[10]   On the first day of trial, the trial court ruled that the September 17, 2003

       incident was admissible. The court reasoned:


               [J.H.’s] home is twelve (12) to thirteen (13) houses over from the
               victim in our instant case, [L.C.’s] home. The homes are in very
               close proximity, about a block or block and a half away from
               each other. [T]he traffic stop incident or the peeping incident at
               [J.H.’s] home was fifty-seven (57) days after the attempted rape
               of [L.C.] and occurred at or near the same time in the evening.
               Both women were of similar age, fifty-six (56) to sixty (60). Both
               were Caucasian. Both were home alone. I find that to be a
               similar victim profile in this matter. The mode of entry into
               [L.C.’s] home was through a back window. The Defendant was

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 6 of 20
               seen looking into a back window of [J.H.’s] home and a ladder
               was found leaning up against a bedroom window. So I find there
               was a similar method of entry or peeping in the second matter.


       Id. at 109. Based on these facts, the court concluded: “I find the specific

       features found in the uncharged event sufficiently similar, a type of signature

       plan unique and unusual in time, place and event to the charged crime that

       demonstrates a signature of this Defendant showing his modus operandi.” Id.

       at 110-11. And because L.C. could not identify her attacker, the court found

       that the probative value of this evidence outweighed its prejudicial effect. Id. at

       111.


[11]   During trial, the State, over Caldwell’s objection, introduced evidence of the

       September 17, 2003 incident through two police officers. Before the first police

       officer, Detective Gregory Pennell, testified, the trial court admonished the jury

       that evidence of the September 17, 2003 incident could be used for

       identification purposes only and Caldwell was not on trial for that incident. Id.

       at 210. Detective Pennell then testified briefly about the September 17, 2003

       incident. See id. at 210-12. And before the second police officer, Officer Shawn

       Kesling, testified, the court repeated the same admonishment to the jury. Id. at

       576-77. Officer Kesling then testified in great depth about the September 17,

       2003 incident. See id. at 578-644.


[12]   The State also presented testimony from Joanna Johnson, a forensic DNA

       analyst with the Indiana State Police Laboratory. Specifically, Johnson testified

       that the DNA from the blood on L.C.’s laundry-room blinds was “consistent

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 7 of 20
       with Anthony Caldwell . . . and would be expected to occur once in greater

       than eight trillion (8,000,000,000,000) unrelated individuals.” Id. at 483-84.


[13]   During closing argument, the State discussed the September 17, 2003 incident

       and argued that the similarities between the two incidents showed Caldwell’s

       “identity” and “signature.” See id. at 670-76. Specifically, the State argued:


               [T]his is the way these people operate that are predators, that
               prey [on] females that are older and that they look in the
               windows, they scope out the situation and they see who they can
               do this to. And if not for the report [and] what went on, [J.H.]
               would’ve been the next victim out there on Mellwood.


       Id. at 676. The jury found Caldwell guilty of Class A felony burglary and Class

       A felony attempted rape, and the trial court sentenced him to fifty years for

       each count, to be served consecutively, for an aggregate term of 100 years.


[14]   Caldwell now appeals.



                                  Discussion and Decision
[15]   Caldwell raises two issues on appeal. First, he contends that the trial court

       abused its discretion in admitting evidence of the September 17, 2003 incident

       under Evidence Rule 404(b). Second, he contends that the enhancements to his

       burglary and attempted-rape convictions violate the common-law prohibition

       against double jeopardy.



                                    I. Evidence Rule 404(b)
       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 8 of 20
[16]   First, Caldwell contends that the trial court abused its discretion in admitting

       evidence of the September 17, 2003 incident under Evidence Rule 404(b). A

       trial court has broad discretion in ruling on the admissibility of evidence, and

       we will disturb its ruling only on a showing of abuse of discretion. Thompson v.

       State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014), reh’g denied. When reviewing

       a decision under an abuse-of-discretion standard, we will affirm if there is any

       evidence supporting the decision. Id.


[17]   Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other

       act is not admissible to prove a person’s character in order to show that on a

       particular occasion the person acted in accordance with the character.”

       However, the evidence “may be admissible for another purpose, such as

       proving motive, opportunity, intent, preparation, plan, knowledge, identity,

       absence of mistake, or lack of accident.” Ind. Evidence Rule 404(b)(2).


[18]   The law governing the admissibility of specific-acts evidence for “another

       purpose” requires a trial court to make three findings. Camm v. State, 908

       N.E.2d 215, 223 (Ind. 2009), reh’g denied. First, the court must determine that

       the proponent has sufficient proof that the person who allegedly committed the

       act did, in fact, commit the act. Id. Second, the court must determine that the

       evidence of the crime, wrong, or other act is relevant to a matter at issue other

       than the defendant’s propensity to commit the charged act. Id. Last, the court

       must balance the probative value of the evidence against its prejudicial effect

       pursuant to Evidence Rule 403. Id.



       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 9 of 20
[19]   Caldwell first argues that the State failed to sufficiently connect him to the

       peeping incident at J.H.’s house. There must be sufficient proof from which a

       reasonable jury could find the uncharged conduct proven by a preponderance of

       the evidence. Id. at 224; Clemens v. State, 610 N.E.2d 236, 242 (Ind. 1993), reh’g

       denied. Direct evidence that the defendant perpetrated the similar act is not

       required; rather, “[s]ubstantial circumstantial evidence of probative value” is

       sufficient. Clemens, 610 N.E.2d at 242. In addition, testimony by the victim of

       the similar act is not required. Id. If the trial court finds the threshold showing

       has been met, then it properly admits the evidence and leaves to the jury the

       task of assessing its persuasive value. Camm, 908 N.E.2d at 224.


[20]   Here, the State did not present any direct evidence connecting Caldwell to the

       peeping incident at J.H.’s house. J.H. never identified Caldwell as the

       perpetrator. Instead, Officer Kesling testified that Caldwell matched the

       description given by J.H., which was a black male with short hair wearing gray

       or beige clothing. Tr. p. 581; see also State’s Ex. 42 (photograph of Caldwell

       taken during the September 17, 2003 traffic stop). Officer Kesling also found it

       suspicious that Caldwell was sweating, there was a pair of wet shoes covered in

       grass clippings in his car, and the bottom of his pants legs were wet. However,

       Caldwell admitted that he had recently cut through a yard and park while

       visiting a female friend and then changed his shoes afterwards. And although

       Officer Kesling doubted Caldwell’s reason for being in the area because it was

       not the “most rapid route” that the police would take to get to University

       Woods apartments, Tr. p. 606, Officer Kesling later checked with Caldwell’s


       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 10 of 20
       female friend, who confirmed that they were romantically involved. Finally,

       Officer Kesling did not arrest Caldwell in connection with the peeping incident

       at J.H.’s house. In fact, Officer Kesling—who had been instructed to be on

       heightened alert in that area due to the attempted rape of L.C. almost sixty days

       earlier—did not recall whether he even reported this stop to any detectives. Id.

       at 623. Although the evidence the State presented to connect Caldwell to the

       September 17, 2003 incident is circumstantial, we find that it is not

       “substantial” circumstantial evidence from which a reasonable jury could find

       the uncharged conduct proven by a preponderance of the evidence. This is so

       despite the great lengths the State went to during Caldwell’s trial to prove that

       he was the one who looked in J.H.’s window. Because the State failed to

       sufficiently connect Caldwell to the peeping incident at J.H.’s house, we

       conclude that the trial court abused its discretion in admitting evidence of the

       September 17, 2003 incident.


[21]   Caldwell also argues that the trial court abused its discretion in admitting

       evidence of the September 17, 2003 incident under the identity exception in

       Evidence Rule 404(b)(2). The identity exception was “crafted primarily for

       ‘signature’ crimes with a common modus operandi.” Thompson v. State, 690

       N.E.2d 224, 234 (Ind. 1997). The exception’s rationale is that the crimes, or the

       means used to commit them, were so similar and unique that it is highly

       probable that the same person committed all of them. Id.; see also Lafayette v.

       State, 917 N.E.2d 660, 666 n.5 (Ind. 2009). Crimes that are only “generally

       similar” do not qualify under this exception. Berry v. State, 715 N.E.2d 864, 867


       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 11 of 20
       (Ind. 1999). Rather, the crimes must be “strikingly similar.” Garland v. State,

       788 N.E.2d 425, 431 (Ind. 2003).


[22]   We agree with Caldwell that the attempted rape of L.C. and the peeping

       incident at J.H.’s house are generally similar, but not strikingly similar. Allen v.

       State, 720 N.E.2d 707 (Ind. 1999), illustrates just how similar two crimes must

       be in order to constitute a “virtual signature.” In Allen, the victim, Nikita

       Jackson, was found dead behind a business on the west side of Indianapolis

       with glue residue on her arms, legs, and from ear to ear, indicating that she had

       been bound with duct tape. In Nikita’s bedroom, the police found a note with

       Allen’s pager number and the name “Play.”


[23]   During the investigation of Nikita’s murder, Allen was arrested for an attack on

       Melanie Franklin and charged with criminal deviate conduct, rape,

       confinement, and robbery. Melanie claimed that she met Allen at a restaurant,

       he introduced himself as “Play,” and they exchanged pager numbers. Then,

       when she went to Allen’s house for a date, he threatened her with a box cutter,

       bound her hands with duct tape, threatened to bind her legs and mouth if she

       struggled, and raped her twice. The jury found Allen not guilty of robbery and

       criminal deviate conduct and hung on rape and confinement.


[24]   The police concluded that the two crimes were similar: both Nikita and

       Melanie were bound with duct tape and sexually assaulted, and both had

       Allen’s pager number and knew him as “Play.” Accordingly, in Nikita’s case,

       the State charged Allen with murder and criminal deviate conduct. Then


       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 12 of 20
       during trial, the trial court allowed the State to introduce evidence of Melanie’s

       assault under the identity exception in Evidence Rule 404(b) in order to prove

       that Allen was the perpetrator in Nikita’s case.


[25]   On appeal, the Indiana Supreme Court found that the trial court did not abuse

       its discretion in admitting evidence of Melanie’s assault under the identity

       exception in Evidence Rule 404(b). Specifically, the evidence showed that both

       victims were black teenage girls and the crimes occurred in the same

       neighborhood within two months of each other. Melanie knew Allen as

       “Play,” and the police found a note in Nikita’s bedroom with Allen’s pager

       number and the name “Play.” Both incidents involved anal probing or

       penetration, and both victims were bound with duct tape, which the Supreme

       Court found to be “relatively rare” in sexual-assault cases. Id. at 712. The

       Court said that even if it would have reached a different result had it tried the

       case, the admission of evidence of Melanie’s assault in Nikita’s case was not an

       abuse of discretion. Id.


[26]   When comparing this case to Allen, it is apparent that the crimes in Allen

       involving Nikita and Melanie are more similar and unique than the crimes in

       this case involving L.C. and J.H. Although in both this case and Allen the

       victims were similar and the crimes occurred in the same area within two

       months of each other, there are additional facts in Allen that make those crimes

       strikingly similar. That is, Melanie knew Allen as “Play,” and the police found

       a note in Nikita’s bedroom with Allen’s pager number and the name “Play.”

       Both incidents involved anal probing or penetration, and both victims were

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 13 of 20
       bound with duct tape, which our Supreme Court found to be relatively rare in

       sexual-assault cases.


[27]   In this case, although the victims were similar and the crimes occurred in the

       same area within two months of each other, there are stark differences between

       the crimes. The crimes involving L.C. included a break-in and brutal attempted

       rape that resulted in a two-day hospital stay for L.C. But there was no break-in

       at J.H.’s house or sexual assault of J.H. Acknowledging this difference, the

       State argues that Caldwell “was interrupted in the act of peering in J.H.’s

       window.” Appellee’s Br. p. 11. But this is just speculation. See id. at 12 (the

       State noting that Caldwell “probably just committed a misdemeanor trespass

       offense” in J.H.’s case). Although there are general similarities between the

       crimes involving L.C. and J.H., the similarities are not striking; therefore, they

       are not signature crimes. Accordingly, we conclude that the trial court abused

       its discretion in admitting evidence of the September 17, 2003 incident under

       the identity exception in Evidence Rule 404(b). See Browning v. State, 775

       N.E.2d 1222, 1225 (Ind. Ct. App. 2002) (in a case for the attempted rape of

       Anderson University student A.B., this Court concluded that the trial court

       abused its discretion in admitting other bad acts of the defendant—mostly

       masturbation and exposing himself—involving other Anderson University

       students because “[a]lthough there are certainly striking similarities among the

       ‘other’ incidents in question, the same cannot be said when comparing those

       incidents with the attack upon A.B. In fact, the incident involving A.B. bore




       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 14 of 20
       little resemblance to the others. . . . [M]ost significantly, the incident involving

       A.B. was the only one involving a physical attack.”).


[28]   But not all errors in admitting evidence under Evidence Rule 404(b) require

       reversal. Errors in the admission of evidence are to be disregarded as harmless

       error unless they affect the substantial rights of the party. Lewis v. State, 34

       N.E.3d 240, 248 (Ind. 2015); see also Ind. Trial Rule 61. To determine whether

       an error in the introduction of evidence affected the defendant’s substantial

       rights, we must assess the probable impact of that evidence upon the jury.

       Lewis, 34 N.E.3d at 248.


[29]   We find that the trial court’s admission of evidence of the September 17, 2003

       incident was harmless in light of the DNA evidence connecting Caldwell to the

       crimes at L.C.’s house. That is, the police found blood on L.C.’s laundry-room

       blinds. Forensic DNA analyst Johnson testified that the DNA from the blood

       on the blinds was “consistent with Anthony Caldwell . . . and would be

       expected to occur once in greater than eight trillion (8,000,000,000,000)

       unrelated individuals.” Tr. p. 483-84; see also Maryland v. King, 133 S. Ct. 1958,

       1966 (2013) (“The advent of DNA technology is one of the most significant

       scientific advancements of our era. The full potential for use of genetic markers

       in medicine and science is still being explored, but the utility of DNA

       identification evidence in the criminal justice system is already undisputed.”).

       In addition, the trial court admonished the jury before both Detective Pennell

       and Officer Kesling testified that evidence of the September 17, 2003 incident

       could be used for identification purposes only and Caldwell was not on trial for

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 15 of 20
       that incident. Just as our Supreme Court found in Allen, we too find that the

       error here was harmless. See Allen, 720 N.E.2d at 712 (concluding that even if

       the trial court abused its discretion in admitting evidence of another crime

       under the identity exception in Evidence Rule 404(b), the error was harmless in

       light of the DNA evidence linking Allen to the crime he was on trial for).



                                       II. Double Jeopardy
[30]   Caldwell was convicted of Class A felony burglary and Class A felony

       attempted rape. The burglary was enhanced to a Class A felony because of

       “bodily injury” to L.C., and the attempted rape was enhanced to a Class A

       felony because L.C. was compelled by “deadly force.” See Appellant’s App. p.

       57 (charging information); see also Ind. Code Ann. §§ 35-43-2-1(2)(A) (West

       2012) (burglary can be enhanced to Class A felony “if it results in . . . bodily

       injury . . . to any person other than a defendant”) & 35-42-4-1(b)(1) (West 2012)

       (rape can be enhanced to Class A felony if “it is committed by using or

       threatening the use of deadly force”). Caldwell argues that because “both

       enhancements involve the same ‘injurious consequences,’” the enhancements

       “violate the common law prohibition against double jeopardy.” Appellant’s

       Reply Br. p. 9; Appellant’s Br. p. 30. He therefore asks us to reduce one of his

       convictions to a Class B felony.


[31]   Under the rules of statutory construction and common law that constitute one

       aspect of Indiana’s double-jeopardy jurisprudence, where one conviction “is

       elevated to a class A felony based on the same bodily injury that forms the basis

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 16 of 20
       of [another] conviction, the two cannot stand.” Ramon v. State, 888 N.E.2d 244,

       253 (Ind. Ct. App. 2008) (quotation omitted). To remedy such a double-

       jeopardy violation, a court may reduce the sentencing classification on one of

       the offending convictions. Id. When determining what facts a jury used to

       establish each element of an offense, we consider the evidence, charging

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


[32]   In support of his argument, Caldwell relies on Campbell v. State, 622 N.E.2d 495

       (Ind. 1993).3 In that case, the defendant was convicted of Class C felony battery

       (deadly weapon) and Class A felony burglary (serious bodily injury). On

       appeal, the Indiana Supreme Court noted:

                The Court of Appeals remanded this cause to the trial court with
                instructions to vacate the class C felony battery conviction and
                resentence appellant for battery as a class B misdemeanor,
                because the enhanced felony level of both crimes was based upon
                the same injurious consequences, violating state and federal
                double jeopardy prohibitions. We agree. Although the battery
                information alleged use of a deadly weapon and the burglary information
                alleged serious bodily injury, the basis for the elevation of both crimes was
                the same slashing of Fritz's face. Appellant was improperly
                sentenced for battery as a class C felony.


       Id. at 500 (emphasis added).




       3
        This Court recently relied on Campbell and explained that although Richardson v. State, 717 N.E.2d 32 (Ind.
       1999), appeared to supercede Campbell, Campbell is “still good law.” Street v. State, 30 N.E.3d 41, 48 (Ind. Ct.
       App. 2015), trans. denied; see also Pierce v. State, 761 N.E.2d 826, 830 n.4 (Ind. 2002).

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015                          Page 17 of 20
[33]   This Court reached the same result in Street v. State, 30 N.E.3d 41 (Ind. Ct. App.

       2015), trans. denied. In that case, the defendant was convicted of, among other

       things, Class C felony battery (deadly weapon) and Class A felony burglary

       (bodily injury). Relying on Campbell, this Court held that although the battery

       information alleged use of a deadly weapon and the burglary information

       alleged bodily injury, “the basis for the elevation of both crimes was the same

       injury to the victim—namely, [the victim] being shot by [the defendant’s] use of

       the deadly weapon.” Id. at 49 (quotation omitted). Accordingly, because the

       enhancement for battery was “based on the same facts that resulted in [the]

       enhancement [for burglary],” we reduced the defendant’s Class C felony battery

       conviction to a Class B misdemeanor. Id.


[34]   In this case, the State enhanced burglary to a Class A felony based on “bodily

       injury” to L.C.: “a lacerated cheek, bruised and swollen hands, and bruising

       and swelling to the facial area.” Appellant’s App. p. 57. And the State

       enhanced attempted rape to a Class A felony because L.C. was compelled by

       “deadly force”: “[Caldwell] struck [L.C.], drug her to her bedroom, ripped her

       underwear off, placed a pillow over her face, and touched her vagina.” Id. At

       trial, the State presented evidence that after entering L.C.’s house and

       encountering her in the hall, Caldwell pulled L.C.’s robe over her head and

       started hitting her in the face as he pushed her back toward the bedroom.

       Caldwell also ripped off L.C.’s underwear. When they got to the base of the

       bed in L.C.’s bedroom, Caldwell hit L.C. so hard that she briefly lost

       consciousness and fell to the floor. Caldwell also put a pillow over L.C.’s face.


       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015   Page 18 of 20
       When Caldwell touched the outside of L.C.’s vagina with his hand, she

       exclaimed, “Jesus, Jesus.” Caldwell abruptly ended the attack and left. As a

       result of the attack, L.C. suffered a broken eye socket, a laceration below her

       right eye, broken bones in her left hand and fingers, and significant bruising and

       swelling in her face.


[35]   During closing argument, the State argued that the burglary “resulted in bodily

       injury” to L.C., including “severe, significant injuries, lacerations, a broken

       orbital eye bone, fractures to her hand . . . .” Tr. p. 678-79. And for the deadly

       force element of attempted rape, the State argued that “serious bodily injury”

       occurred: “[L.C.] certainly had a broken eye bone, she had lacerations, she had

       fractures in her hand, she certainly had extreme pain . . . .” Id. at 680. The

       State claimed that this serious bodily injury occurred when Caldwell was

       “striking her, hitting her, she fell down, [and] the attempt was made to suffocate

       her with that pillow.”4 Id. at 681.


[36]   Although burglary was elevated to a Class A felony based on bodily injury to

       L.C. and attempted rape was elevated to a Class A felony because L.C. was

       compelled by deadly force, the basis for the elevation of both crimes was the

       same injury to L.C.—namely, L.C. suffered a broken eye socket, laceration




       4
         The State argues that the deadly force used during the attempted rape was Caldwell’s “act of placing a
       pillow over L.C.’s face, during which she felt like she could die.” Appellant’s Br. p. 18. However, given the
       charging information, the evidence presented at trial, and the State’s closing argument—during which it did
       not confine the deadly force to the act of placing a pillow over L.C.’s face—it is clear that the basis for the
       elevation of both crimes was the same.

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015                         Page 19 of 20
       below her right eye, broken bones in her left hand and fingers, and significant

       bruising and swelling in her face based on Caldwell’s use of deadly force. In

       other words, the deadly force that was used to commit the attempted rape was

       the very force that gave rise to all of L.C.’s bodily injuries that occurred during

       the burglary. Because both enhancements were based on the same facts, we

       reduce Caldwell’s burglary conviction to a Class B felony. See Ind. Code Ann.

       35-43-2-1 (West 2012) (burglary can be enhanced from a Class C felony to a

       Class B felony if the building or structure is a dwelling). Because we are

       convinced that the trial court would impose the maximum sentence for Class B

       felony burglary—just as it did for Class A felony burglary—we reduce

       Caldwell’s burglary sentence from fifty to twenty years.5 We therefore remand

       this case to the trial court with instructions to enter a new judgment of

       conviction and abstract of judgment reflecting that Caldwell’s burglary

       conviction is a Class B felony and his sentence for that count is twenty years,

       for a new aggregate term of seventy years.


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


       Robb, J., and Pyle, J., concur.




       5
        Indiana Code section 35-50-2-5(a) provides that for a crime committed before July 1, 2014, a person who
       commits a Class B felony shall be imprisoned for a fixed term of between six and twenty years, with the
       advisory sentence being ten years.

       Court of Appeals of Indiana | Opinion 22A01-1411-CR-479 | August 31, 2015                     Page 20 of 20
