Pursuant to Ind. Appellate Rule 65(D), this

                                                               FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
                                                             May 10 2012, 8:41 am
the defense of res judicata, collateral
estoppel, or the law of the case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
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ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                                  GREGORY F. ZOELLER
Frischkorn Law LLC                                  Attorney General of Indiana
Fortville, Indiana
                                                    ELLEN H. MEILAENDER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SHARON D. COLLINS,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 48A05-1109-CR-490
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Rudolph R. Pyle, III, Judge
                               Cause No. 48C01-0912-FB-684



                                           May 10, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Sharon D. Collins’s husband, Joshua, obtained a no-contact order against Collins and

had her removed from the marital residence. One morning, Collins went to the residence and

banged on the windows and rang the doorbell. Joshua threatened to call the police, and

Collins left. When Joshua left the residence that afternoon, Collins entered the home and

started a fire that destroyed the residence and damaged three neighboring homes. The State

charged Collins with four counts of class B felony arson and one count of class A

misdemeanor invasion of privacy. A jury found her guilty as charged. The trial court

imposed a ten-year sentence on each of the arson convictions and a one-year sentence on the

invasion of privacy conviction, with all sentences to run consecutively, for an aggregate

sentence of forty-one years, with twenty-eight years executed and thirteen years suspended to

probation.

       On appeal, Collins contends that her four arson convictions violate Indiana double

jeopardy principles because she set fire to only one house. She also contends that the trial

court erred in imposing consecutive sentences. In the alternative, she contends that her

aggregate sentence exceeds the statutory maximum for convictions arising out of an episode

of criminal conduct. The State disputes Collins’s double jeopardy and consecutive sentence

claims but concedes that her sentence exceeds the statutory maximum as to the arson

convictions. We find no merit in Collins’s double jeopardy argument and conclude that the

trial court did not err in imposing consecutive sentences because the fire impacted multiple

victims. Because the arson sentences violate the statutory maximum for felony convictions


                                             2
arising out of an episode of criminal conduct, however, we remand with instructions to

resentence Collins in accordance with applicable law.

                              Facts and Procedural History

       The evidence most favorable to the jury’s verdict indicates that Joshua obtained a no-

contact order against Collins that became effective November 5, 2009, and had her removed

from the marital residence on West Quarter Moon Drive in Pendleton. Early on the morning

of November 30, 2009, Collins arrived at the residence and banged on the windows and rang

the doorbell, demanding to be let in. Joshua threatened to call the police, and Collins left.

Collins then contacted their insurance company and cancelled their homeowners policy

retroactive to November 29. She drove her car around Joshua’s neighborhood several times,

attracting the attention of some neighbors.

       Around midday, Joshua left the residence and went to the Hamilton County

government center to file for divorce. During his absence, Collins entered the residence, set

several fires, and quickly left the neighborhood. The fire destroyed the residence and

damaged three neighboring homes.

       The State charged Collins with four counts of class B felony arson – one for each of

the four damaged homes – as well as one count of class A misdemeanor invasion of privacy

for violating the no-contact order. A jury found her guilty as charged. The trial court

imposed a ten-year sentence on each of the arson convictions and a one-year sentence on the

invasion of privacy conviction, with all sentences to run consecutively, for an aggregate




                                              3
sentence of forty-one years, with twenty-eight years executed and thirteen years suspended to

probation. Collins now appeals.

                                  Discussion and Decision

                                    I. Double Jeopardy

       Collins first contends that her four arson convictions violate Indiana double jeopardy

principles. Article 1, Section 14 of the Indiana Constitution says that “[n]o person shall be

put in jeopardy twice for the same offense.” Two offenses are the “same offense” in

violation of Indiana’s 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.’” Scott v. State, 859 N.E.2d 749, 752 (Ind. Ct. App. 2007) (quoting

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

       Collins concedes that the so-called “statutory elements test is inapplicable because this

challenge is premised upon convictions under multiple counts for the same offense.”

Appellant’s Br. at 5 (citing Peckinpaugh v. State, 743 N.E.2d 1238, 1242 (Ind. Ct. App.

2001), trans. denied). Collins relies instead on the actual evidence test, pursuant to which a

defendant must demonstrate a reasonable possibility that the evidentiary facts used to

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

essential elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

“The test is not merely whether the evidentiary facts used to establish one of the essential

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


                                               4
a second challenged offense.” Id. In other words, no double jeopardy violation occurs

“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.” Id.

       Collins asserts that the actual evidence test establishes a double jeopardy violation

because she set fire to only one house, and thus she committed only one act of arson. We

rejected a similar argument based on similar facts in Williamson v. State, 798 N.E.2d 450

(Ind. Ct. App. 2003), trans. denied (2004), in which each of the five arson charges named a

different victim “and each conviction required unique proof with respect to each victim.” Id.

at 456 (footnote omitted). Such is the case here, and thus Collins’s double jeopardy claim

fails. See Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (“A fire damaging properties

owned by multiple persons can however produce multiple crimes. Thus, one who sets fire to

a shop in a mall which spreads and destroys five other businesses in the mall commits five

arsons.”) (citing Williamson, 798 N.E.2d at 451).

                                II. Consecutive Sentences

       Next, Collins argues that the trial court erred in imposing consecutive sentences on the

arson convictions “because the action and the injuries were so close in time that they arose

out of a single episode of criminal conduct.” Appellant’s Br. at 9. Collins’s argument is

based on a pre-Richardson double jeopardy case involving only one victim, and therefore we

do not find it persuasive. The State correctly observes that “Indiana courts have repeatedly

recognized that where multiple victims are involved and discrete harms were inflicted on

separate individuals, consecutive sentences are proper and appropriate.” Appellee’s Br. at


                                              5
15; see, e.g., O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001) (“It is a well established

principle that the fact of multiple crimes or victims constitutes a valid aggravating

circumstance that a trial court may consider in imposing consecutive or enhanced

sentences.”); Tr. at 787 (trial court’s sentencing statement: “The other aggravator is that

there were multiple victims. [T]here were a number of families affected by these arsons and

… it was all testified to at the trial, the jury heard that and that was a part of their

conviction.”).1 As such, we find no error here.

                      III. Statutory Maximum for Consecutive Sentences

        Finally, Collins contends, and the State properly concedes, that her aggregate sentence

exceeds the maximum sentence allowed pursuant to Indiana Code Section 35-50-1-2. That

statute provides that, with certain exceptions not relevant here,

        the court shall determine whether terms of imprisonment shall be served
        concurrently or consecutively. The court may consider the:

                (1) aggravating circumstances in IC 35-38-1-7.1(a); and

                (2) mitigating circumstances in IC 35-38-1-7.1(b);

        in making a determination under this subsection. The court may order terms of
        imprisonment to be served consecutively even if the sentences are not imposed
        at the same time. However, except for crimes of violence, the total of the
        consecutive terms of imprisonment, exclusive of terms of imprisonment under
        IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for
        felony convictions arising out of an episode of criminal conduct shall not
        exceed the advisory sentence for a felony which is one (1) class of felony
        higher than the most serious of the felonies for which the person has been
        convicted.

        1
          We note that the title pages of the multivolume trial transcript do not indicate the total number of
volumes as required by Form Number Appellate Rule 28-1. See Ind. Appellate Rule 28(A)(7) (“The title page
of each volume shall conform to Form #App. R. 28-1 ….”).

                                                      6
Ind. Code § 35-50-1-2(c) (emphasis added). The phrase “terms of imprisonment” includes

“any period of incarceration a defendant is sentenced to, even if all or a portion of that period

of time is suspended.” Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005).

       Class B felony arson is not a “crime of violence” as defined by Indiana Code Section

35-50-1-2(a). An episode of criminal conduct is defined as “offenses or a connected series of

offenses that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-2(b).

With respect to timing, the offenses must be “‘simultaneous’” or “‘contemporaneous.’”

Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002) (quoting Tedlock v. State, 656 N.E.2d 273,

276 (Ind. Ct. App. 1995)). It is undisputed that Collins’s four arson convictions arose out of

an episode of criminal conduct, and therefore the maximum aggregate sentence that may be

imposed for those convictions pursuant to Indiana Code Section 35-50-1-2(c) is the advisory

sentence for a class A felony, which is thirty years. Ind. Code § 35-50-2-4.

       Collins contends that her misdemeanor invasion of privacy conviction arose out of the

same episode of criminal conduct and therefore should be subject to the thirty-year limitation.

We note, however, that Indiana Code Section 35-50-1-2(c) specifically applies only to felony

convictions, and we agree with the State that it would not apply here in any event because the

invasion of privacy offense was not committed simultaneously or contemporaneously with

the arson offenses and therefore did not arise out of the same episode of criminal conduct.

Based on the foregoing, we remand with instructions to resentence Collins in accordance

with Indiana Code Section 35-50-1-2(c), with the executed and suspended portions of her

sentence to be determined pursuant to the trial court’s discretion and applicable law.

                                               7
      Remanded.

BAKER, J., and BROWN, J., concur.




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