MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           Dec 15 2015, 6:18 am
this 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
David Becsey                                            Gregory F. Zoeller
Zeigler Cohen & Koch                                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ryan Browne,                                            December 15, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1506-CR-487
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Anne Flannelly,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G04-1309-FB-63150



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015      Page 1 of 6
[1]   Ryan Browne appeals his convictions of Class B Felony Burglary 1 and Class C

      Felony Robbery,2 arguing that the entry of judgment on both offenses violates

      the prohibition against double jeopardy. Finding no double jeopardy violation,

      we affirm.


                                                    Facts
[2]   Ashley Collins was gifted a PlayStation Vita, but since neither she nor her three

      children played video games, she decided to sell it. In August 2013, she posted

      an advertisement on Craigslist that included photos of the item, her name, and

      her cell phone number.


[3]   Two days later, Collins received a text from someone going by the name of

      “Eric” inquiring about the Vita. They agreed on a price of $200. After a phone

      conversation, Collins set up a meeting at a local gas station. She told “Eric,”

      who later turned out to be Browne, what type of vehicle she drove. Collins

      arrived at the meeting, but Browne did not show up. She left after an hour.

      The two rescheduled, but again Browne did not show up.


[4]   Collins scheduled another meeting for August 22, 2013, at a Dollar General

      store that was within view of her house. When she arrived, she got out of her




      1
          Ind. Code § 35-43-2-1 (2013).
      2
          Ind. Code § 35-42-5-1 (2013).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015   Page 2 of 6
      car to look around, the Vita sticking out of her purse, but did not see anybody

      who looked like a purchaser. Again, she left without meeting up with Browne.


[5]   She returned to her house with her three children in the car. As her two older

      children went inside, Collins carried her six-month-old baby in the baby’s car

      seat. She placed the seat and her purse on the ground. When she turned

      toward the street, she saw a vehicle driving from the direction of the Dollar

      General. The vehicle pulled up to her driveway and a man, later identified as

      Browne, got out. When Browne began to speak, Collins recognized the voice

      from their phone conversations.


[6]   Browne sprinted toward Collins and her baby. She just managed to get her

      child in the door, but she was unable to fully close it. Browne was pushing the

      door open while she was pushing the other way. The two struggled for about a

      minute until Browne gave the door “a big shove,” enabling him to get inside.

      Tr. 27-28.


[7]   Once inside, Browne pushed Collins with both hands. She tripped over her

      sixth-month-old’s car seat and fell to the ground. All of her children were in the

      room, screaming. Browne grabbed Collins’s purse, took the Vita out of it,

      dropped the purse, called Collins a “b*tch,” and raced out of the house. Tr. 29.

      Collins immediately called the police.


[8]   On September 25, 2013, the State charged Browne with class B felony

      attempted burglary and class C felony robbery. The State later amended the

      charges to drop the former charge and to add class B felony burglary. After an

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015   Page 3 of 6
       April 23, 2015, jury trial, Browne was found guilty as charged. The trial court

       sentenced Browne to four years for robbery and ten years for burglary, to be

       served concurrently. Browne now appeals.


                                    Discussion and Decision
[9]    Browne’s only argument on appeal is that his two convictions constitute double

       jeopardy. The Fifth Amendment to the United States Constitution provides

       that “[no]… person [shall] be subject for the same offense to be twice put into

       jeopardy.” Article 1, Section 14 of our Indiana Constitution similarly provides

       that “no person shall be put in jeopardy twice for the same offense.” For the

       purposes of double jeopardy analysis, two offenses qualify as the “same

       offense” 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.

       Nicoson v. State, 919 N.E.2d 1203, 1205-06 (Ind. Ct. App. 2010) (citing

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).


[10]   To obtain the robbery conviction, the State had to prove beyond a reasonable

       doubt that (1) Browne intentionally took property, (2) from Collins, (3) by using

       or threatening force, or by putting Collins in fear. Ind. Code § 35-42-5-1 (2013).

       To obtain the burglary conviction, the State had to prove beyond a reasonable

       doubt that (1) Browne broke and entered Collins’s house, (2) with the intent to

       commit a felony inside. Ind. Code § 35-43-2-1 (2013).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015   Page 4 of 6
[11]   We note that the question of whether simultaneous convictions for burglary and

       robbery violate the double jeopardy clause is not an issue of first impression.

       We have previously explained that “convictions for robbery and burglary do

       not violate the Richardson actual evidence test as each crime requires proof of a

       fact that the other does not; robbery requires proof that the defendant took

       property from another person and burglary requires proof that the defendant

       broke and entered a structure.” Smith v. State, 872 N.E.2d 169, 176 (Ind. Ct.

       App. 2007). Such is the case here—the jury found that Browne broke into

       Collins’s house, and found separately that Browne took the Vita, which was

       Collins’s property. At the moment that Browne forced his way into the house,

       intending to commit theft, he had completed the burglary. The robbery took

       place after the burglary, when Browne actually took the Vita. Therefore, there

       is nothing improper with Browne being convicted of both offenses.


[12]   A double jeopardy violation can occur if a single fact—for example, one bodily

       injury—is used by the State to enhance more than one offense; in such a case,

       the appropriate remedy is to strike one of the twice-used enhancers and thereby

       reduce the level of one of the offenses. Pierce v. State, 761 N.E.2d 826, 830 (Ind.

       2002). But such is not the case here—class C robbery does not involve any

       enhancers, Ind. Code § 35-42-5-1 (2013); and while class B burglary does

       require an enhancer, Browne’s burglary was enhanced by the fact that it took

       place at Collins’s dwelling, Ind. Code § 35-43-2-1(1)(B)(i) (2013). The fact that

       the offense took place in a dwelling has no bearing on the elements of robbery.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015   Page 5 of 6
[13]   Browne’s central argument is that the jury could have understood the “force”

       that he used to break into the dwelling to be the same “force” used to establish

       the robbery. In other words, he believes that if the same push both opened the

       front door and knocked Collins to the ground, one of his convictions should be

       vacated.


[14]   This is an incorrect understanding of the actual evidence test. There is no

       violation of that test “when the evidentiary facts establishing the essential

       elements of one offense also establish only one or even several, but not all, of

       the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833

       (Ind. 2002). Even if the push that effectuated the breaking-in element of

       burglary was the same push used to prove the use-of-force element of robbery,

       the latter offense has the additional element of the actual taking of property. A

       partial overlap in evidence is not a violation of the actual evidence test. 3


[15]   In sum, since robbery and burglary require both different elements and different

       evidence, and since there was not a single fact giving rise to multiple

       enhancements, there was no double jeopardy violation.


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


       Bradford, J., and Pyle, J., concur.




       3
        In any event, Collins testified at trial that there were two pushes—Browne used “a big shove,” to get in the
       house, and then pushed Collins with both of his palms moving away from his body. Tr. 27-28. Therefore,
       even if Browne’s underlying argument had merit, he would not succeed.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015            Page 6 of 6
