MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                              Jan 31 2019, 7:50 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Quintin M. Towles, Jr.,                                  January 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-888
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         84D01-1510-F2-2595
                                                         84D01-1301-FB-305



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-888 | January 31, 2019                Page 1 of 6
[1]   Quintin Towles, Jr., appeals his convictions for Level 2 Felony Burglary 1 and

      Level 5 Felony Carrying a Handgun Without a License,2 arguing that the

      convictions violate the prohibition against double jeopardy. Finding no double

      jeopardy violation, we affirm.


                                                     Facts
[2]   On October 19, 2015, a resident on Cleveland Avenue in Terre Haute heard

      fighting outside just after midnight. The resident looked outside and saw two

      people, one of whom was later identified as Towles, arguing. Multiple

      neighbors heard a gunshot in the location of the altercation. Someone called

      911 to report shots fired.


[3]   Among the neighbors who heard the gunshot were Ronald and Amber Sons.

      Amber went to their front porch to see what was happening. Towles

      approached and told Amber to mind her own business. Ronald told Towles not

      to talk to his wife that way and turned to go back inside. Towles entered the

      porch, pointing a gun at Ronald, and chased Ronald into the house. Terre

      Haute Police Officer Lance Sanders responded to the report of shots fired and

      heard a woman screaming, “get out of our f*cking house” from the direction of

      Ronald and Amber’s house. Tr. Vol. III p. 132.




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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-888 | January 31, 2019   Page 2 of 6
[4]   Officer Sanders announced his presence and entered the porch. He observed

      Towles, who had an empty holster on his waist and his hand down his pants.

      The officer commanded Towles to show his hands; Towles showed only one

      hand. Officer Sanders believed that Towles was about to draw a weapon and

      grabbed Towles’s arm; Towles then separated from the officer and drew his

      gun. Officer Sanders ordered him to drop it; Towles responded by pointing the

      gun at the officer’s face. Officer Sanders fired three times, hitting Towles.3

      Towles left the house and was apprehended by another officer, who rendered

      first aid.4


[5]   On October 23, 2015, the State charged Towles with Level 2 felony burglary,

      Level 5 felony criminal recklessness, Level 6 felony intimidation, two counts of

      Level 6 felony pointing a firearm, Level 6 felony resisting law enforcement, and

      carrying a handgun without a license as a Class A misdemeanor and as a Level

      5 felony based on his criminal history.


[6]   Towles’s jury trial took place from October 30 to November 2, 2017. At trial,

      the trial court entered a directed verdict of guilty on one of the counts of

      pointing a firearm. The jury returned guilty verdicts for burglary, criminal

      recklessness, resisting law enforcement, and the misdemeanor carrying a

      handgun without a license charge; it found Towles not guilty of intimidation




      3
       Officer Sanders was later cleared of any wrongdoing for the shooting following an investigation by the
      Indiana State Police.
      4
          Towles sustained gunshot wounds on his left arm and the left side of his back. He later recovered fully.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-888 | January 31, 2019                      Page 3 of 6
      and the remaining pointing a firearm charge. Towles admitted to his prior

      felony conviction, which elevated the carrying a handgun conviction to a Level

      5 felony.


[7]   On March 9, 2018, the trial court sentenced Towles to an aggregate term of

      twenty-two years imprisonment.5 Towles now appeals.


                                    Discussion and Decision
[8]   The sole argument raised by Towles on appeal is that the convictions for Level

      2 felony burglary and Level 5 felony carrying a handgun without a license

      violate the prohibition against double jeopardy.


[9]   Indiana’s double jeopardy clause was intended to prevent the State from being

      able to proceed against a person twice for the same criminal transgression.

      Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). Our Supreme Court

      has held that two or more offenses are the “same offense,” in violation of our

      Constitution’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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

      1999) (emphases original).




      5
       The trial court also revoked Towles’s term of probation that he was serving under Cause Number 84D01-
      1301-FB-305 (FB-305). That cause has been consolidated with this one for the appeal, but the facts of FB-305
      are not relevant here and regardless of the way in which we dispose of this appeal it will not affect the
      probation revocation of FB-305.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-888 | January 31, 2019                  Page 4 of 6
[10]   Here, Towles argues that his convictions violate the actual evidence test. Under

       that test, the “actual evidence presented at trial is examined to determine

       whether each challenged offense was established by separate and distinct facts.”

       Id. at 53. To establish a double jeopardy violation under this test, the 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. He

       contends that because the firearm used to convict him of carrying a handgun

       without a license was the same firearm used to elevate the burglary charge to a

       Level 2 felony, there is a reasonable possibility that the jury used the same

       evidentiary facts to establish the essential elements of both charges.


[11]   To convict Towles of carrying a handgun without a license, the State was

       required to prove beyond a reasonable doubt that he carried a handgun away

       from his property without a license. I.C. § 35-47-2-1. To convict Towles of

       Level 2 felony burglary, the State was required to prove beyond a reasonable

       doubt that, while armed with a deadly weapon, Towles knowingly broke and

       entered the building or structure of the victims with the intent to commit a

       felony inside. I.C. § 35-43-2-1.


[12]   At trial, the State presented evidence that before Towles entered the home of

       Ronald and Amber, a gunshot was heard in the vicinity of an argument Towles

       was having with someone. Then, Towles began arguing with Ronald and

       Amber and drew his gun before he entered their home. The deputy prosecutor

       and a detective had the following exchange during Towles’s trial:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-888 | January 31, 2019   Page 5 of 6
               Prosecutor: Now in order to be carrying this type of handgun
                           out on the street or the sidewalk out by 21st and
                           Cleveland, a person would have to have a permit to
                           be able to carry that in that fashion?


               Detective:       Yeah, it’s actually called a handgun license or a
                                firearms license.


       Tr. Vol. V p. 96. In other words, Towles had completed the crime of carrying a

       handgun without a license before he committed burglary.


[13]   Our Supreme Court has held that “[c]arrying [a] gun along the street was one

       crime and using it was another.” Mickens v. State, 742 N.E.2d 927, 931 (Ind.

       2001); see also Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (holding that

       repeated use of the same weapon to commit multiple separate crimes may

       support multiple convictions with no double jeopardy violation). Here, the

       State provided evidence that Towles carried the handgun on the street before he

       used it in the burglary. Under these circumstances, we find no reasonable

       possibility that the jury used the same evidentiary facts to establish the essential

       elements of more than one offense. Consequently, there was no double

       jeopardy violation.


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


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-888 | January 31, 2019   Page 6 of 6
