                                                                            Nov 06 2013, 5:35 am

FOR PUBLICATION




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              JAMES B. MARTIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHRISTOPHER CROSS,                            )
                                              )
       Appellant/Defendant,                   )
                                              )
              vs.                             )       No. 73A01-1303-CR-134
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee/Plaintiff.                    )


                    APPEAL FROM THE SHELBY SUPERIOR COURT
                          The Honorable Jack A. Tandy, Judge
                            Cause No. 73D01-0608-FA-22



                                   November 6, 2013


                              OPINION - FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       In August of 2006, Appellant-Defendant Christopher Cross engaged in the sale of

cocaine in Shelby County. As a result of his actions, he was convicted of Class A felony

dealing in cocaine, Class A felony possession of cocaine, Class D felony maintaining a

common nuisance, Class A misdemeanor resisting law enforcement, Class A misdemeanor

carrying a handgun without a permit, and Class C felony carrying a handgun without a permit

after felony conviction. Cross was also found to have committed the acts necessary to

warrant a sentence enhancement for using a firearm during the commission of a controlled

substance offense, and was found to be a habitual offender. Cross was sentenced to an

aggregate term of fifty years. Cross’s convictions and sentence were affirmed on direct

appeal.

       On January 31, 2013, Cross and Appellee-Plaintiff the State of Indiana filed a joint

petition for post-conviction relief and request for resentencing. The joint petition was

granted and, following resentencing, Cross was sentenced to an aggregate term of thirty-eight

years. On appeal, Cross contends that the classification of his acts of dealing in cocaine and

possession of cocaine as Class A felonies was disproportionate to the nature of his offenses

and that he suffered certain double jeopardy violations. We affirm in part, reverse in part,

and remand to the trial court with instructions.

                        FACTS AND PROCEDURAL HISTORY

       This court’s opinion in Cross’s prior direct appeal, which was handed down on July 9,

2008, instructs us as to the underlying facts leading to this subsequent direct appeal following

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resentencing:

               In August 2006, Larry Sizemore assisted the Shelbyville Police
       Department by setting up a drug transaction involving Sizemore, Cross, and
       John Mellentine. Sizemore attempted to call Cross, from whom he had bought
       drugs in the past. When Sizemore reached Cross’[s] voice mail, Sizemore
       called Mellentine, who told Sizemore he could reach Cross. Mellentine
       telephoned Cross and told him that Sizemore wanted to purchase $200.00
       worth of cocaine.
               Cross and Mellentine drove to Sizemore’s Shelbyville hotel room.
       Shelbyville Police Department Officer Bart Smith was parked down the street
       at [a youth center], which was about 120 feet from the hotel. When Cross and
       Mellentine arrived at the hotel, Officer Smith radioed the officers that were
       hiding in Sizemore’s hotel bathroom. When Cross pulled a bag of cocaine out
       of his pocket, the police entered the room and yelled, “Police. Down.” Tr. at
       120.
               Cross reached for his waistband, which led Officer Ed Hadley to
       believe that Cross was reaching for a weapon. Officer Hadley tackled Cross,
       and the two men fell on the floor. Cross continued to struggle with the officer
       and reach for his waistband. After subduing Cross, Officer Hadley felt a gun
       slide down Cross’[s] leg. A subsequent search of Cross revealed the gun and
       three grams of cocaine. The State charged Cross with multiple counts.
       Following a bench trial, the court convicted Cross of all counts and
       adjudicated him to be an habitual substance offender as well as an habitual
       offender.
               Following the sentencing hearing, the trial court “adopted” the
       following aggravating circumstances set forth in the presentence report: 1)
       Cross has a history of criminal behavior; 2) Cross is in need of correctional or
       rehabilitative treatment that can best be provided by commitment to a penal
       facility; and 3) Cross threatened the life of a witness/co-defendant by means of
       a letter. Appellant’s App. at 46. The court found no mitigating factors, and
       sentenced Cross to 1) thirty years for dealing in cocaine, 2) thirty years for
       possession of cocaine, 3) three years for maintaining a common nuisance, 4)
       one year for resisting law enforcement, and 5) eight years for carrying a
       handgun without a permit with a prior felony conviction, all sentences to run
       concurrently. The court enhanced Cross’[s] thirty-year sentence by twenty
       years for his habitual offender adjudication, for a total sentence of fifty years.

Cross v. State, 73A01-0709-CR-427 *1 (Ind. Ct. App. July 9, 2008). On appeal, this court

concluded that the evidence was sufficient to sustain Cross’s convictions and that the trial

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court did not err in sentencing Cross. Id. at *2-3.

       On January 31, 2013, the State and Cross filed a joint petition for post-conviction

relief and request to set the matter for resentencing. In this joint motion, the parties requested

the trial court to vacate the habitual offender enhancement. The trial court granted the

parties’ joint petition and, after a sentencing hearing held on March 1, 2013, resentenced

Cross to an aggregate thirty-eight year sentence.

                              DISCUSSION AND DECISION

       On appeal, Cross contends that the classification of his acts of possessing more than

three grams of cocaine within 1000 feet of a youth program center with the intent to deliver

as Class A felonies was disproportionate to the nature of his offenses. Cross also contends

that he suffered certain double jeopardy violations.

                   I. Proportionality of Class A Felony Classification

       Cross contends that the classification of his convictions for dealing in cocaine and

possession of cocaine as a Class A felonies was disproportionate to the nature of his offenses.

“Article I, Section 16, of the Indiana Constitution requires that ‘[a]ll penalties shall be

proportioned to the nature of the offense.’” State v. Moss-Dwyer, 686 N.E.2d 109, 111 (Ind.

1997) (brackets in original). In cases such as the instant matter, where the statutory

punishment of a single crime is alleged to be constitutionally disproportionate, our analysis is

relatively straightforward. Id. (citing Conner v. State, 626 N.E.2d 803, 806 (Ind. 1993)).

              Indiana courts have consistently supported the proposition that “[t]he
       nature and extent of penal sanctions are primarily legislative considerations....”
       Person v. State, 661 N.E.2d 587, 593 (Ind. App. 1996), trans. denied. Our
       separation of powers doctrine requires we take a highly restrained approach
                                              4
       when reviewing legislative prescriptions of punishments. While legislative
       decisions do not completely escape review, “judicial review of a legislatively
       sanctioned penalty is very deferential.” Person, 661 N.E.2d at 593 (citing
       Conner, 626 N.E.2d at 806). We will not disturb the legislative determination
       of the appropriate penalty for criminal behavior except upon a showing of
       clear constitutional infirmity. [Steelman v. State, 602 N.E.2d 152, 160 (Ind.
       Ct. App. 1992)]. As the court stated in Person, “When considering the
       constitutionality of a statute, we begin with the presumption of constitutional
       validity, and therefore the party challenging the statute labors under a heavy
       burden to show that the statute is unconstitutional.” 661 N.E.2d at 592 (citing
       Jackson v. State, 634 N.E.2d 532, 535 (Ind. App. 1994)). A court is not at
       liberty to set aside the legislative determination as to the appropriate penalty
       merely because it seems too severe. Conner, 626 N.E.2d at 806; Clark v. State,
       561 N.E.2d 759 (Ind. 1990).

Id. at 111-12.

       In adopting Indiana Code section 35-48-4-1(a), the General Assembly decreed that a

person who knowingly or intentionally possesses cocaine with the intent to deliver commits

dealing in cocaine, a Class B felony. However, the offense is a Class A felony if the amount

of the drug involved exceeds three grams or the person delivered the drug in, on, or within

1000 feet of a school property, a public park, a family housing complex, or a youth program

center. Ind. Code § 35-48-4-1(b). Here, the State alleged and the evidence presented during

trial proved that Cross possessed, with the intent to deliver, more than three grams of cocaine

within 1000 feet of a youth program center.

       In raising the contention that the Class A felony classification for his act of possessing

more than three grams of cocaine within 1000 feet of a youth program center with the intent

to deal was disproportionate, Cross argues that the crimes of dealing in cocaine and

possession of cocaine should not be classified as Class A felonies because the offenses lack


                                               5
the serious physical harm that is inherent in other Class A felony offenses. We disagree.

       The Indiana Supreme Court has previously upheld the constitutionality of the “school-

zone enhancement,” concluding that “the ‘violent and dangerous criminal milieu’ created by

drug dealing and possession is a sufficient rationale to render [the enhancement]

constitutional.” Polk v. State, 683 N.E.2d 567, 571 (Ind. 1997) (quoting Reynolds/Herr v.

State, 582 N.E.2d 833, 839 (Ind. Ct. App. 1991)). In coming to this conclusion, the Indiana

Supreme Court noted that

       [t]he opinions of this Court are filled with tales of drug possession and dealing
       that spun out of control and erupted into violence. The conclusion is
       inescapable that the General Assembly believed that possession of cocaine or a
       Schedule IV controlled substance near a school, distinct from any effort to
       distribute them there, presented its own dangers to children. In short, it is
       within the legislature’s prerogative to determine that a drug-free zone deters
       possible spillover effects, and to provide enhanced penalties for controlled
       substance violations in proximity to schools.

Id. Accordingly, the Indiana Supreme Court held that the enhancement is rationally related

to a legitimate legislative objective. Id. We conclude that this same rationale also applies to

youth program centers.

       Likewise, the Indiana Supreme Court has also previously upheld the constitutionality

of the enhancement for possessing, with the intent to deliver, three grams or more. See

Coleman v. State, 588 N.E.2d 1335, 1339 (Ind. Ct. App. 1992) (citing Marts v. State, 432

N.E.2d 18, 22 (Ind. 1982); Hall v. State, 273 Ind. 425, 434-35, 403 N.E.2d 1382, 1388

(1980)). Relying on the Indiana Supreme Court’s opinions in Marts and Hall, in Coleman,

this court concluded that the Class A felony enhancement for possessing, with the intent to


                                              6
deliver, three grams or more did not violate the proportionality requirement of Article 1,

Section 16 of the Indiana Constitution. Id. We find no reason to depart from the binding

precedent established by Marts and Hall.

       Moreover, we find Cross’s claim that the Class A felony classifications should be

found to be disproportionate in light of the upcoming overhaul to the criminal classifications

and sentencing structure, which has been approved by the General Assembly in House

Enrolled Act 1006, to be unpersuasive.            The upcoming overhaul to the criminal

classifications and sentencing structure is scheduled to take effect on July 1, 2014. Nothing

in House Enrolled Act 1006 suggests that the overhaul of the criminal classifications and

sentencing structure should apply retroactively. To the contrary, House Enrolled Act 1006

indicates that crimes committed before July 1, 2014, should be charged and sentenced

pursuant to the old classifications and sentencing structure. See HEA 1006 § 652. This

language falls in line with the controlling Indiana precedent that states that courts must

sentence defendants under the statute in effect at the time the defendant committed the

offense. See Jacobs v. State, 835 N.E.2d 485, 491 n.7 (Ind. 2005).

       Cross claims that by approving the overhaul, the General Assembly has shown that it

believes that the Class A felony classifications were disproportionate because, under the

criminal classifications and sentence structure that takes effect on July 1, 2014, dealing in

cocaine and possession of cocaine will no longer qualify as the highest level of felonies in

Indiana. We disagree. The overhaul of criminal classifications and sentence structure did

not only affect drug crimes, but all crimes. As such, we believe that the overhaul represents a

                                              7
broad “revamp” of Indiana’s criminal system, not a statement regarding the proportionality of

one singular criminal offense. Cross has failed to demonstrate that the Class A felony

classifications of his act of possessing more than three grams of cocaine within 1000 feet of a

youth program center with the intent to deliver constitutes a “clear constitutional infirmity,”

and, accordingly, we reject Cross’s proportionality claim.

                              II. Double Jeopardy Concerns

                      A. Enhancement for Use of Handgun During
                        Commission of Underlying Criminal Act

       Next, Cross contends that his conviction for Class C felony carrying a handgun

without a license and the sentence enhancement imposed due to Cross’s use of a firearm

during the commission of the offense of dealing in cocaine violate the Indiana Constitution’s

Double Jeopardy Clause.

       That Clause, found in Article 1, Section 14 of the Indiana Constitution, “was
       intended to prevent the State from being able to proceed against a person twice
       for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49
       (Ind. 1999). Two or more offenses are the “same offense” in violation of the
       Indiana Double Jeopardy Clause, 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. Id. Under the “actual evidence” test,
       the evidence presented at trial is examined to determine whether each
       challenged offense was established by separate and distinct facts. Id. at 53. 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 all of the essential elements
       of a second challenged offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.
       2002). To determine what facts were used, we consider the evidence, charging
       information, final jury instructions (if there was a jury), and arguments of
       counsel. Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005).

                                              8
Stewart v. State, 866 N.E.2d 858, 863-64 (Ind. Ct. App. 2007). In addition to the situations

covered by Richardson, the Indiana Supreme Court has “long adhered to a series of rules of

statutory construction and common law that are often described as double jeopardy” although

not covered by the constitutional test set forth in Richardson. Guyton v. State, 771 N.E.2d

1141, 1143 (Ind. 2002). One of these rules prevents conviction and punishment for both a

criminal act and sentence enhancement where the enhancement is imposed for the very same

behavior that constituted another crime for which the defendant has been convicted. Id.

       In the instant appeal, Cross claims that the prohibition against double jeopardy was

violated because he was convicted of carrying a handgun without a license and that his

possession of the handgun was also the basis for the five-year sentence enhancement relating

to his dealing in cocaine conviction. Thus, Cross argues that he was punished twice for the

same act. While we agree that double jeopardy principles would prohibit double punishment

for merely possessing the handgun in question, we find persuasive the State’s claim that the

sentence enhancement did not violate the prohibition against double jeopardy because the

enhancement was based not only on Cross’s possession of the handgun but also on Cross’s

use of said handgun.

       Indiana Code section 35-50-2-13 provides that the State may seek “to have a person

who allegedly committed an offense of dealing in a controlled substance … sentenced to an

additional fixed term of imprisonment if the [S]tate can show beyond a reasonable doubt that

the person knowingly or intentionally: (1) used a firearm; or (2) possessed a: (A) handgun …

while committing the offense.” Cross argues that this court should not consider his alleged

                                             9
use of the handgun because the State’s theory of separate conduct, i.e., both possession and

use, was not presented to the fact-finder through the charging information filed by the State

or in the State’s closing argument. In the instant matter, the body of the charging information

alleged that Cross possessed a handgun while committing the offense of dealing in cocaine.

The charging information, however, did not limit the State’s claim that Cross committed the

actions necessary to justify a sentence enhancement under Indiana Code section 35-50-2-13

by listing only the subsection relating to possession of a handgun. Furthermore, the evidence

presented at trial varied from the language contained in the body of the charging information

in that it tended to demonstrate that the State believed that the enhancement was proper in

light of Cross’s use of the handgun in question.

       It is well-established that not all variances between a charging information and the

proof presented at trial are fatal. Daniels v. State, 957 N.E.2d 1025, 1029-30 (Ind. Ct. App.

2011) (citing Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997)).

       The test to determine whether a variance between the proof at trial and a
       charging information or indictment is fatal is as follows:
              “(1) was the defendant misled by the variance in the evidence
              from the allegations and specifications in the charge in the
              preparation and maintenance of his defense, and was he harmed
              or prejudiced thereby;
              (2) will the defendant be protected in the future criminal
              proceeding covering the same event, facts, and evidence against
              double jeopardy?”

Mitchem, 685 N.E.2d at 677 (quoting Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987)).

       Here, the record is devoid of any indication that Cross was prejudiced in the

preparation or maintenance of his defense by the variance. The charging information listed

                                              10
Indiana Code section 35-50-2-13 generally and did not limit the State’s allegation that Cross

violated the statute to any particular subsection contained therein. Moreover, Cross’s defense

did not distinguish between possession and use. While Cross’s defense did not contain any

argument that he possessed but did not use the handgun, nothing in the record suggests that

he would have been precluded from doing so. In addition, nothing in the record indicates

that Cross could potentially face a subsequent prosecution for his actions relating to the

commission of the underlying offenses. As such, we conclude that the variance between the

language contained in the body of the charging information and the proof presented at trial

was not fatal.

       Having determined that the variance between the language contained in the body of

the charging information and the proof presented at trial was not fatal, we must next

determine whether the evidence is sufficient to support a determination that Cross “used” the

handgun while committing the offense of dealing in cocaine. The Indiana Supreme Court

has previously held that mere possession of a handgun is not enough to constitute use of said

handgun. See Nicoson v. State, 938 N.E.2d 660, 665 (Ind. 2010) (providing that mere

possession of a firearm is not enough to satisfy the requirement that a defendant used the

firearm in the commission of an underlying offense). “Although it appears no Indiana cases

have addressed what it means to ‘use’ a weapon, it seems to be accepted that ‘[t]he word

‘use,’ in statutes prohibiting the use of a firearm in the commission of an offense, includes

brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to

fire, a firearm.’” Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011) (quoting 94

                                             11
C.J.S. Weapons § 37 (2001)).

       We conclude that the record demonstrates that Cross did not merely possess the

handgun during the commission of the offense of dealing in cocaine but also used the

handgun during the commission of said offense.               The evidence presented at trial

demonstrated that Cross reached for the handgun during a struggle with police. Again, police

officers were hiding in the hotel room in which Cross intended to sell cocaine to Sizemore.

The officers made their presence known after watching Cross pull a bag of cocaine from his

pocket. As the officers made their presence known, Cross reached for a handgun that was

located in or around the waistband of his pants. Cross continued to reach for the handgun

while he struggled with police in an apparent attempt to avoid arrest. Eventually, the

handgun was recovered by one of the officers. We believe that Cross’s act of reaching for

the handgun in an attempt to evade detention during the commission of the offense of dealing

in cocaine moved beyond mere possession of said handgun, and, as a result, is sufficient to

demonstrate use of said handgun. Because we conclude that the record contains independent

evidence which demonstrates that Cross used the handgun during the commission of the act

of dealing in cocaine, we further conclude that Cross was not punished twice for the same

behavior.

       Moreover, Cross has failed to demonstrate that there is a reasonable probability that

the trier of fact, the trial judge, relied on the same evidence to establish the essential elements

of both the carrying a handgun without a license charge and the use enhancement. As is

stated above, the trial judge was presented with independent evidence that Cross used the

                                                12
handgun during the commission of his act of dealing in cocaine. Because the trial judge was

presented with independent evidence to support Cross’s conviction and the sentence

enhancement, we find no reasonable possibility that the evidentiary facts used by the trial

judge to establish the essential elements of carrying a handgun without a license were also

used to establish the sentence enhancement for use of a handgun during the commission of

his act of dealing in cocaine. Any such possibility would be speculative and remote. See Thy

Ho v. State, 725 N.E.2d 988, 992 (Ind. Ct. App. 2000) (providing that because we presume

that the trial judge knows the law and considers only the evidence properly before the court

in reaching a decision, any possibility that the trial judge used the same evidence to establish

the essential elements of both theft and robbery would have been speculative and remote).

Cross, therefore, has not met his burden to establish an Indiana double jeopardy violation in

this regard. See id. Accordingly, Cross’s sentence for carrying a handgun without a license

and the sentence enhancement for using said handgun during the commission of the act of

dealing in cocaine did not violate the prohibitions against double jeopardy.

                                B. Lesser-Included Offense

       Cross also contends that his conviction for Class A misdemeanor carrying a handgun

without a license should be vacated. Cross was convicted of both Class C felony and Class A

misdemeanor carrying a handgun without a license. The State concedes that Class A

misdemeanor carrying a handgun without a license is a lesser-included offense of the Class C

felony. Accordingly, the State concedes that Cross’s conviction for the lesser-included Class

A misdemeanor conviction must be vacated. See Ind. Code § 35-38-1-6 (providing that

                                              13
judgment and sentence may not be entered against a defendant for the included offense

whenever the defendant is charged with and convicted of both an offense and an included

offense in separate counts).

                                      CONCLUSION

       In sum, we reject Cross’s contention that the classification of Cross’s acts of dealing

in cocaine and possession of cocaine as Class A felonies was disproportionate to the nature

of his offenses. With regard to his use of a handgun during the commission of the dealing

offense, we conclude that Cross was not punished twice for the same act in violation of the

prohibitions against double jeopardy. We also conclude that Cross’s conviction for the

lesser-included offense of Class A misdemeanor carrying a handgun without a license must

be vacated. As such, we affirm in part, reverse in part, and remand to the trial court with

instructions to vacate the conviction for Class A misdemeanor carrying a handgun without a

license.

       The judgment of the trial court is affirmed in part, reversed in part, and the matter

remanded to the trial court with instructions.

BAILEY, J., and MAY, J., concur.




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