Pursuant to Ind. Appellate Rule 65(D), this            Mar 31 2014, 6:16 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

ALEXANDER L. HOOVER                                GREGORY F. ZOELLER
Law Office of Christopher G. Walter                Attorney General of Indiana
Nappanee, Indiana
                                                   ELLEN H. MEILAENDER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVONTA K. JOHNSON,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 20A03-1307-CR-294
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry C. Shewmaker, Judge
                              Cause No. 20C01-1209-FB-97



                                         March 31, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Davonta K. Johnson appeals from the trial court’s sentencing order entered after

Johnson’s convictions of one count of burglary1 as a Class B felony and one count of

robbery2 as a Class B felony, contending that the trial court’s use of the same aggravating

factors to enhance both sentences was a violation of his double jeopardy protections under

the Indiana Constitution and the United States Constitution.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       Kevin and Sadie Mahone hired a woman known as Shea to babysit their two young

children while the Mahones were at work. Shea would come to the Mahones’ house to

pick up the children and care for the children elsewhere during the Mahones’ shifts at work.

Johnson, who was Shea’s boyfriend and the father of her child, would sometimes

accompany Shea when she picked up the children and entered the Mahones’ home with

Shea on those occasions.

       Prior to August 17, 2012, Shea failed to show up on one occasion when she was

scheduled to babysit for the Mahones’ children. The Mahones were forced to miss work

in order to care for their children and decided to withhold Shea’s pay until such time that

they could discuss Shea’s absence with her. On the evening of August 17, 2012, Johnson

came to the Mahones’ house to collect the money that Shea was purportedly owed. Johnson

and Kevin, who were both outside the Mahones’ house, argued, and the argument turned

into a physical altercation after some time. Both Kevin and Johnson left the premises.


       1
           See Ind. Code § 35-43-2-1.
       2
           See Ind. Code § 35-42-5-1.

                                             2
       Later that evening, when Sadie was giving her infant a bath, she heard a loud noise

that sounded like a door had been kicked open in the other room. Sadie went to investigate

the source of the sound and found Johnson inside her home holding a gun to the head of

her three-year-old daughter. The Mahones kept money in baby formula jars in the kitchen.

Johnson walked toward the kitchen shelves, took money out of a formula jar, and left the

Mahones’ home. Police who were dispatched to the scene found signs of forced entry at

the door.

       The State charged Johnson with burglary as a Class B felony, alleging that Johnson

broke and entered the Mahones’ home with the intent to commit theft, and armed robbery

as a Class B felony. At the conclusion of Johnson’s bench trial, the trial court found

Johnson guilty of both counts.

       At Johnson’s sentencing hearing, the trial court found as mitigating factors

Johnson’s age, 22, and the statements made at sentencing by Johnson and his counsel. The

trial court found the following aggravating factors: 1) Johnson’s moderate risk to reoffend;

2) Johnson’s criminal history, consisting of extensive juvenile and adult contacts with law

enforcement and multiple prior convictions; 3) Johnson was on probation at the time he

committed the offenses; 4) Johnson’s regular marijuana use, which was indicative of his

disregard for the law; 5) lesser sanctions had failed to rehabilitate Johnson; 6) Johnson

inserted himself into a dispute between other individuals; and 7) there were two small

children who were victimized due to their presence during the crimes and the fact that a

gun was held to the head of the three-year-old child. The trial court sentenced Johnson to

nineteen years executed on each count to be served concurrently. Johnson now appeals.

                                             3
                            DISCUSSION AND DECISION

       Johnson appeals from the trial court’s sentencing order, contending that using the

same aggravating factors to enhance both sentences was a violation of his double jeopardy

protections under the Indiana and federal constitutions.        Johnson concedes that his

convictions for burglary and robbery do not violate double jeopardy principles. Instead,

Johnson claims that his sentence violates Indiana’s common law double jeopardy rules

because the trial court used the same reasons, i.e., pointing a gun to the head of a three-

year-old, to impose a sentence above the advisory sentence for each offense.

       One of the common law rules prevents a “[c]onviction and punishment for an

enhancement of a crime where the enhancement is imposed for the very same behavior or

harm as another crime for which the defendant has been convicted and punished.” Guyton

v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson v. State, 717 N.E.2d 32,

56 (Sullivan, J., concurring)). In other words, the State cannot seek to enhance the level of

an offense from one felony level to another based on the same fact that constitutes another

offense for which the defendant is convicted. See Gross v. State, 769 N.E.2d 1136, 1139

(Ind. 2002) (“where a single act forms the basis of both a Class A felony robbery conviction

and also the act element of the murder conviction, the two cannot stand.”). This rule was

not violated in the present case because Johnson’s robbery conviction was enhanced to a

Class B felony because it was committed while armed with a deadly weapon, and Johnson’s

burglary conviction was enhanced to a Class B felony because the building was a dwelling,

i.e., the Mahones’ home.



                                             4
         Johnson has confused the concepts of the enhancement of an offense to a greater

level of felony with the enhancement of a sentence above the advisory sentence. In Miller

v. State, 790 N.E.2d 437, 439 (Ind. 2003) (quoting Gates v. State, 759 N.E.2d 631, 633 n.2

(Ind. 2001)), our Supreme Court reemphasized that “the use of a ‘single deadly weapon

during the commission of separate offenses may enhance the level of each offense.’” The

remedy for a double jeopardy violation is to vacate the conviction, or to reduce the

conviction to a lesser level of felony in recognition of the double-jeopardy problem. See

e.g., Orta v. State, 940 N.E.2d 370, 377 (Ind. Ct. App. 2011). What Johnson seeks here, is

a reduction of the length of his sentence, which demonstrates that his claim does not

actually implicate common law double jeopardy rules.

         To the extent that Johnson might be arguing that the trial court improperly used an

element of the offense of robbery to enhance the robbery sentence, the claim also fails.

“[T]he consideration of a material element of a crime as an aggravator ‘is no longer an

inappropriate double enhancement.’” Gomillia v. State, 993 N.E.2d 306, 310 (Ind. Ct. Ap.

2013).      Additionally, the particularized circumstances of an offense are valid

considerations for the purpose of sentencing. Id. at 310-11. The trial court observed that

there were two additional victims of Johnson’s crimes, namely the two young children who

were present during the commission of the crimes, and that one of the children had a gun

held to her head during the commission of the crimes. The trial court did not err.

         Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.



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