MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Aug 04 2017, 9:17 am
court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven Knecht                                            Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven James Burns, II,                                  August 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1701-CR-7
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D02-1608-F2-23



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017         Page 1 of 12
[1]   Steven Burns appeals his convictions for Level 2 Felony Burglary While Armed

      With a Deadly Weapon 1 and Level 4 Felony Serious Violent Felon in

      Possession of a Firearm,2 arguing that his convictions violate Indiana’s

      prohibition against double jeopardy under the state constitution and under

      common law. Finding no error, we affirm.


                                                     Facts
[2]   Around 11 p.m. on August 18, 2016, Burns and his brother Joseph Burns were

      at Adam Smith’s house in Lafayette. Burns, Joseph, and Smith planned to

      burglarize Jerry Mathews. Around midnight, Mackenzie Sanders picked up the

      three men and drove them to an area near a bar on Fourth Street. Burns exited

      the vehicle, went to the back of another vehicle, where he received two

      firearms, and returned to Sanders’s vehicle. Sanders then took Burns, Joseph,

      and Smith to a street near the home of Jerry and Linda Mathews. The three

      men walked to the Mathewses’ home. They covered the lower half of their

      faces with bandanas. Burns pulled the two firearms from underneath his

      sweatshirt and handed one to Joseph and kept one for himself. Burns saw that

      a window was open, and the three men entered the house through it.


[3]   Jerry and Linda Mathews were asleep in their bedroom when the men woke

      them up around 1:30 a.m. Burns pointed his gun at Jerry’s face, demanded that




      1
          Ind. Code § 35-43-2-1.
      2
          Ind. Code § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 2 of 12
      Jerry give him his money, and threatened to kill him. Burns struck Jerry in the

      head with his gun, and Jerry fell and began bleeding. Burns then took Jerry

      into the living room and continued demanding money and threatening Jerry’s

      life. Jerry gave Burns his wallet, and Burns took several rings and watches from

      the couple. Burns then returned Jerry to the bedroom and told him to stay there

      while again threatening his life. The three men then left the house.


[4]   On August 24, 2016, the State charged Burns with Level 2 felony conspiracy to

      commit burglary, Level 2 felony burglary while armed with a deadly weapon,

      two counts of Level 3 felony criminal confinement while armed with a deadly

      weapon, Level 3 felony robbery while armed with a deadly weapon, Level 3

      felony robbery resulting in bodily injury, two counts of Level 5 felony

      intimidation drawing or using a deadly weapon, Level 5 felony battery with a

      deadly weapon, Level 4 felony serious violent felon in possession of a firearm,

      Level 6 felony pointing a firearm, Class A misdemeanor theft, Class A

      misdemeanor carrying a handgun without a license, an unlawful use of a

      firearm enhancement, and a habitual offender enhancement. A jury trial took

      place on October 31 and November 1-4, 2016. The jury found Burns guilty of

      all charges except Level 5 felony battery with a deadly weapon.


[5]   Sentencing took place on November 29, 2016. After merging a number of

      offenses because of double jeopardy concerns, the remaining convictions for

      which Burns was sentenced and the sentences the trial court imposed were:


          • Thirty years for Level 2 felony conspiracy to commit burglary while
            armed with a deadly weapon;
      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 3 of 12
          • Thirty years for Level 2 felony burglary while armed with a deadly
            weapon;
          • Two and one-half years for each of two convictions for Level 6 felony
            criminal confinement;
          • Sixteen years for Level 3 felony robbery resulting in bodily injury;
          • Eight years for Level 4 felony serious violent felon in possession of a
            firearm; and
          • Sixteen years for the habitual offender enhancement.

      The trial court ordered Burns’s sentence for conspiracy to commit burglary and

      burglary to run concurrently; his sentences for criminal confinement to run

      consecutively to each other but concurrently with his sentence for robbery; his

      sentence for robbery to run consecutively to his sentence for burglary; his

      sentence for serious violent felon in possession of a firearm to run consecutively

      to his sentence for burglary; and his habitual offender enhancement to enhance

      his burglary sentence. In sum, the trial court sentenced Burns to an aggregate

      term of seventy years. Burns now appeals.


                                   Discussion and Decision
           I. Double Jeopardy Under the Indiana Constitution
[6]   Burns argues that his convictions and sentences for Level 2 felony burglary

      while armed with a deadly weapon and Level 4 serious violent felon in




      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 4 of 12
      possession of a firearm violate Indiana’s prohibition against double jeopardy

      under the state constitution.3


[7]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

      shall be put in jeopardy twice for the same offense.” Two or more offenses are

      the same offense in violation of this section “if, with respect to either the

      statutory elements of the challenged crimes or the actual evidence used to

      convict, the essential elements of one challenged offense also establish the

      essential elements of another challenged offense.” Richardson v. State, 717

      N.E.2d 32, 49 (Ind. 1999). Double jeopardy is violated when “a defendant’s

      conviction for one crime is enhanced for . . . causing particular additional

      harm” because that “harm cannot also be used as an enhancement of a separate

      crime.” Id. at 56 (Sullivan, J., concurring). When two convictions are found to

      violate 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, 717 N.E.2d at 54. Whether

      multiple convictions violate double jeopardy is a question of law, which this

      Court reviews de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App.

      2012).


[8]   Burns argues that these convictions violate the actual evidence test, pursuant to

      which “the actual evidence presented at trial is examined to determine whether




      3
          Burns does not make a double jeopardy argument under the federal constitution.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 5 of 12
       each challenged offense was established by separate and distinct facts.” Id. “To

       show that two challenged offenses constitute the ‘same offense’ in a claim of

       double jeopardy, a defendant must demonstrate a reasonable possibility that the

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

       one offense may also have been used to establish the essential elements of a

       second challenged offense.” Id. To determine what facts were used, we

       consider the evidence, charging information, final jury instructions, and

       arguments of counsel. Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App.

       2005).


[9]    Here, the record shows that Sanders drove Burns, Joseph, and Smith to an area

       near a bar on Fourth Street, where Burns obtained two firearms. Later that

       same night, Burns gave his brother one of the firearms and kept one for himself.

       The three men then broke into the Mathewses’ home; Burns used his firearm

       during the burglary to threaten and strike Jerry Mathews.


[10]   The charging information for carrying a handgun without a license4 alleged:


                On or about August 19, 2016, in Tippecanoe County, State of
                Indiana, Steven James Burns II did knowingly or intentionally
                carry a handgun in a vehicle or on or about his body without
                being licensed under Indiana Code 35-47-2 to carry a handgun.




       4
         The trial court merged Burns’s conviction for Class A misdemeanor carrying a handgun without a license
       into his conviction for Level 4 felony serious violent felon in possession of a firearm.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017            Page 6 of 12
       Appellant’s App. Vol. II p. 26. The final jury instruction set out the following

       for carrying a handgun without a license:


               On or about August 19, 2016, in Tippecanoe County, State of
               Indiana, Steven James Burns II did knowingly or intentionally
               carry a handgun in a vehicle or on or about his body without
               being licensed under Indiana Code 35-47-2 to carry a handgun.


       Id. at 159. The State made the following comments during its closing argument

       of the first phase of the jury trial regarding whether it had proved the required

       elements of carrying a handgun without a license:

               You heard testimony from [Smith] that [Burns] had a gun with
               him when the group arrived at [the Mathewses’ residence].
               Linda and Jerry also both testified that the man in the red mask
               displayed a firearm. Now, the next element is being away from
               the Defendant’s dwelling, property, or fixed place of business. . . .
               Steven Burns is not a resident [of the Mathewses’ residence]. . . .
               [B]ased on review of police records, Steven Burns does not have
               a license under Indiana law to carry a handgun. Therefore, the
               Defendant is guilty [of carrying a handgun without a license].


       Tr. Vol. IV p. 85-86. The closing argument by the State indicates that, in

       proving this charge, the State primarily relied on the fact that Burns possessed a

       firearm before committing the burglary. This is significant because the State

       used this conviction to help prove that Burns was a serious violent felon in

       possession of a firearm.


[11]   The charging information for serious violent felon in possession of a firearm

       alleged:


       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 7 of 12
        On or about August 19, 2016, in Tippecanoe County, State of
        Indiana, Steven James Burns II did knowingly or intentionally
        possess a firearm, to wit: a handgun(s), having been convicted of
        committing attempting to commit, or conspiring to commit a
        serious violent felony.


Appellant’s App. Vol. II p. 27. The final jury instruction set out the
following:


        On or about August 19, 2016, in Tippecanoe County, State of
        Indiana, Steven James Burns II did knowingly or intentionally
        possess a firearm, to wit: a handgun(s), having been convicted of
        committing, attempting to commit, or conspiring to commit a
        felony enumerated in IC 35-47-4-5.


Id. at 231. In the third phase of the trial, by which time the jury had already

found Burns guilty as charged for carrying a handgun without a license, the

State argued in closing that:


        Now, you’ve already evaluated elements 1, 2, and 3 for this
        offense and so, all that is left for you to do is evaluate the certified
        prior conviction records for the Robbery, the prior Robbery
        offense.


Tr. Vol. IV p. 201. The closing argument by the State indicates that it was

relying on Burns’s conviction for carrying a handgun without a license—for

which it primarily relied on the fact that Burns possessed a handgun before the

burglary—to prove one element of the serious violent felon in possession of a

firearm charge. Indeed, the crime of serious violent felon in possession of a

firearm was complete before Burns broke into the Mathewses’ house because


Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 8 of 12
       Burns had two firearms in his possession before committing the crime of

       burglary.


[12]   With respect to the conviction for burglary while armed with a deadly weapon,

       the charging information alleged:


               On or about August 19, 2016, in Tippecanoe County, State of
               Indiana, Joseph Ira Burns, Steven James Burns II, and Adam
               Lane Smith did break and enter the building or structure of
               another person, to: wit: Jerry Mathews and Linda Mathews,
               with the intent to commit a felony or theft in it, to wit: Robbery
               and/or Theft, committed while armed with a deadly weapon, to
               wit: a handgun(s).


       Appellant’s App. Vol. II p. 16. The final jury instruction set out the following

       elements for burglary with a deadly weapon:


               On or about August 19, 2016, in Tippecanoe County, State of
               Indiana, Steven James Burns II did break and enter the building
               or structure of another person, to: wit: Jerry Mathews and Linda
               Mathews, with the intent to commit a felony or theft in it, to wit:
               Robbery and/or Theft, committed while armed with a deadly
               weapon, to wit: a handgun(s).


       Id. at 157. In closing, the State argued to the jury about each piece of evidence

       supporting each element of burglary before stating that “the offense was

       committed while armed with a deadly weapon, that being the handgun that

       Steven Burns had pointed at Jerry Mathews[’] head.” Tr. Vol. IV p. 92-93. For

       this conviction, the State relied on the fact that Burns possessed a firearm during

       the burglary.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 9 of 12
[13]   The charging information, final jury instructions, and especially the State’s

       closing arguments for these three charges show that the jury relied on the facts

       that Burns possessed two firearms before the burglary and one during the

       burglary to convict him of both serious violent felon in possession of a firearm

       and burglary while armed with a deadly weapon without overlap in the

       evidence. In short, Burns did not meet his burden of showing a reasonable

       possibility that the jury used the same possession of a firearm to convict Burns

       of both charges. Accordingly, we do not find a constitutional double jeopardy

       violation.


                          II. Common Law Double Jeopardy
[14]   Burns also argues that the same convictions violate Indiana’s prohibition

       against double jeopardy under common law.


[15]   In addition to our constitution, Indiana common law also protects against

       double jeopardy, and “[e]ven where no constitutional violation has occurred,

       multiple convictions may nevertheless violate the ‘rules of statutory

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

       are not governed by the constitutional test set forth in Richardson.’” Vandergriff

       v. State, 812 N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting Pierce v. State, 761

       N.E.2d 826, 830 (Ind. 2002)). Five additional categories of double jeopardy

       exist: (1) conviction 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 had been convicted and punished; (2) conviction and


       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 10 of 12
       punishment for a crime which is a lesser-included offense of another crime for

       which the defendant has been convicted and punished; (3) conviction and

       punishment for a crime which consists of the very same act as another crime for

       which the defendant has been convicted and punished; (4) conviction and

       punishment for a crime which consists of the very same act as an element of

       another crime for which the defendant had been convicted and punished; and

       (5) conviction and punishment for the crime of conspiracy where the overt act

       that constitutes an element of the conspiracy charge is the very same act as

       another crime for which the defendant had been convicted and punished.

       Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002).


[16]   At issue here is the first category in which conviction 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 had been convicted

       and punished. The record shows that Burns possessed two firearms before the

       burglary and one during the burglary. Here, the record shows that Sanders

       drove Burns, Joseph, and Smith to an area near a bar on Fourth Street, where

       Burns obtained two firearms. Later that same night, Burns gave his brother one

       of the firearms and kept one for himself. The three men then broke into the

       Mathewses’ home; Burns used his firearm during the burglary to threaten and

       strike Jerry Mathews. Accordingly, Burns was guilty of the crime of serious

       violent felon in possession of a firearm before he broke into the Mathewses’

       house because he possessed two firearms before the three men arrived at the

       house, and he possessed one while they committed the burglary. In short,


       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 11 of 12
       Burns was not punished for mere possession of a firearm twice; he was

       punished for being a previously convicted felon in possession of a firearm and

       then convicted for using that firearm to commit a violent offense. See Mickens v.

       State, 742 N.E.2d 927, 930 (Ind. 2001) (“Carrying the gun along the street was

       one crime and using it was another”). Burns’s argument based on common law

       double jeopardy is unavailing.


[17]   The judgment of the trial court is affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-7 | August 4, 2017   Page 12 of 12
