MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Sep 15 2015, 8:31 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
John C. Bohdan                                           Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry Hayden, Jr.,                                       September 15, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1501-CR-9
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1310-FB-205



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 1 of 19
[1]   Larry Hayden, Jr., appeals his convictions and sentences for robbery as a class

      C felony, unlawful possession of a firearm by a serious violent felon as a class B

      felony, escape as a class C felony, intimidation as a class D felony, and two

      counts of resisting law enforcement as class A misdemeanors. Hayden raises

      one issue which we revise and restate as whether his convictions and sentences

      violate double jeopardy principles or the continuing crime doctrine. We affirm.


                                      Facts and Procedural History

[2]   On October 21, 2013, a confidential informant (the “C.I.”) met with detectives

      regarding purchasing cocaine from Hayden in a controlled buy. A female

      officer searched the C.I. and placed a wire on her. The C.I. and Hayden made

      arrangements on the phone, but Hayden later called the C.I. and changed the

      location of the meeting. Fort Wayne Police Detective Shane Heath gave the

      C.I. $250 for the buy.


[3]   The C.I. drove to the meeting location in Allen County. Hayden entered the

      C.I.’s vehicle, sat in the passenger’s seat, and pulled out a gun. The C.I. started

      “freaking out” and said: “[P]lease don’t do this.” Transcript at 141. Hayden

      told the C.I. to take the keys out of the ignition, to put them out of the window,

      and to give him all her money. The C.I. was “very scared” and gave Hayden

      all the money that the police had given her. Id. at 142. Hayden then wiped his

      fingerprints off the door handle and exited the car.


[4]   Meanwhile, Fort Wayne Police Detective Greg Stier was listening to the wire

      and heard normal conversation “[a]nd then all of a sudden the [C.I.] starting


      Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 2 of 19
      begging for” her life. Id. at 227. One of the detectives asked uniform officers to

      come closer, then said that the C.I. was being robbed and “to go in for the

      rescue.” Id. at 160. Fort Wayne Police Detective Michael Long arrived at the

      scene in a few seconds. Sergeant Mark Brooks and Detectives Heath and

      Ripley arrived quickly as well.


[5]   Detective Long observed Hayden’s right hand tucked in the inside of the left

      portion of his coat and “[t]he way that his hand was positioned [he] could kind

      of see a bulge, and it looked like he had a handgun.” Id. at 161. Detective

      Long drew his handgun, ordered Hayden to show his hands, and Hayden went

      behind the back side of a van, stayed back there a couple of seconds, and then

      started to run. Detective Stier pursued Hayden in his vehicle. Sergeant Brooks

      also pursued Hayden in his vehicle and observed him enter a small wooded

      area but lost sight of him for a few moments. Sergeant Brooks eventually exited

      his vehicle when Hayden exited the wooded area. Detective Stier ordered

      Hayden to come out with his hands out. Sergeant Brooks drew his sidearm,

      pointed it at Hayden, advised Hayden that he was a police officer, and told him

      to “get down in a loud command voice, numerous times.” Id. at 180.


[6]   Hayden walked toward Sergeant Brooks while holding the money in his hand.

      Sergeant Brooks repeatedly ordered Hayden to “get down.” Id. Hayden looked

      around, went down to his knees, leaned forward, and started to eat the money.

      Hayden also put his hands in front of him and then back underneath him, and

      Sergeant Brooks eventually placed Hayden in handcuffs.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 3 of 19
[7]   Sergeant Brooks turned Hayden over to Detective Heath and began to search

      for the weapon. Sergeant Brooks called the fire department to search the roof of

      a barn in a location where Hayden had run and eventually retrieved a firearm

      from the top of the barn.


[8]   Meanwhile, Detective Mark Gerardot who was in full police uniform and

      driving a squad car transported Hayden to the hospital. After arriving at the

      hospital, Detective Gerardot opened the rear door of the car, and Hayden

      stepped out of the vehicle and “had somehow gotten one of the cuffs off his

      wrist and he fled, as soon as he got both feet on the ground, he took off

      running.” Id. at 271. Detective Gerardot pursued Hayden on foot, provided

      details of the pursuit to dispatch, and yelled “stop police.” Id. at 276. Hayden

      did not comply.


[9]   Nicole Ferguson, who was then employed by Allen County Community

      Corrections and was wearing a full police uniform, observed Hayden running

      and said “stop, police,” pointed her Taser at him, and again ordered him to

      stop. Id. at 289. Hayden told Ferguson that he had a gun and that he was

      going to shoot her, and Ferguson unsuccessfully deployed her Taser. Hayden

      continued to run and eventually opened the passenger door of a vehicle driven

      by a civilian, locked the doors, and yelled at the driver to drive. Detective

      Gerardot told the panicked driver to open the door, and she complied.

      Detective Gerardot then forcefully removed Hayden from the car and directed

      him to the ground where Hayden struggled with officers. The officers were

      eventually able to handcuff him.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 4 of 19
[10]   At some point, Hayden told Detective Heath that he agreed to meet with the

       C.I. to sell her cocaine but he had no intention of selling the cocaine and only

       wished to take the C.I.’s money, and that he did not have a gun.


[11]   On October 21, 2013, the State charged Hayden with Count I, robbery as a

       class B felony; Count II, unlawful possession of a firearm by a serious violent

       felon as a class B felony; Count III, escape as a class C felony; Count IV,

       intimidation as a class D felony for his threat to Ferguson; Count V, resisting

       law enforcement as a class A misdemeanor for fleeing from Detective Gerardot;

       and Count VI, resisting law enforcement as a class A misdemeanor for forcibly

       resisting, obstructing, or interfering with Detective Gerardot.1


[12]   The jury found Hayden guilty of Counts I, III, IV, V, and VI. The court then

       proceeded to the next phase of the trial regarding Count II, unlawful possession

       of a firearm by a serious violent felon as a class B felony. Hayden stipulated

       that he had a qualifying prior conviction but argued that he did not possess the

       firearm. The jury found him guilty of Count II.


[13]   On December 19, 2014, the court entered judgments of conviction and ordered

       Hayden to serve six years for Count I, robbery as a class C felony, fifteen years

       for Count II, unlawful possession of a firearm by a serious violent felon as a

       class B felony, six years for Count III, escape as a class C felony, two years for




       1
        The State also charged Hayden with Count VII, possession of paraphernalia as a class A misdemeanor,
       which was later dismissed.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015       Page 5 of 19
       Count IV, intimidation as a class D felony, and one year each for Counts V and

       VI, resisting law enforcement as class A misdemeanors. The court ordered that

       the sentences for Counts I, II, III, and IV be served consecutive to each other

       and that Counts V and VI be served concurrent with each other and concurrent

       with Counts I, II, III, and IV. Thus, Hayden received an aggregate sentence of

       twenty-nine years.


[14]   On January 28, 2015, the court entered an order finding that there were double

       jeopardy issues in Count I, robbery as a class B felony as charged and Count II,

       possession of a firearm by a serious violent felon, due to the fact that the

       weapon used to enhance Count I from a class C felony to a class B felony was

       the same weapon which formed the basis of Count II, possession of a firearm

       by a serious violent felon. The court then entered judgment of conviction on

       Count I, robbery, as a class C felony.


                                                       Analysis

[15]   The issue is whether Hayden’s convictions and sentences violate double

       jeopardy principles or the continuing crime doctrine.2




       2
         Hayden also argues that the sentences for Counts I and II are disproportionate to the crime charged, but
       does not cite to authority or develop this argument. Consequently, this issue is waived. See Cooper v. State,
       854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it was
       “supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3
       (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015           Page 6 of 19
       A. Double Jeopardy under the Statutory and Actual Evidence Tests


[16]   Hayden argues that the trial court’s reduction of Count I from robbery as a class

       B felony to robbery as a class C felony failed to remedy the double jeopardy

       violation because his knowing and intentional possession of a firearm was an

       element the State needed to prove in order to convict him of armed robbery,

       and that these two convictions fail the statutory elements test as outlined in

       Richardson v. State, 717 N.E.2d 32 (Ind. 1999). He also asserts that the same

       evidence was used to prove the essential elements of Counts I and II, and that

       there is more than a reasonable possibility that the same evidentiary facts were

       used by the jury to convict him of both those Counts. He contends that the

       State employed evidence of the possession of a firearm to prove the requisite

       elements of a robbery. The State argues that the convictions for Counts I and II

       do not violate the statutory elements test or the actual evidence test.


[17]   The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double

       Jeopardy Clause . . . prevent[s] the State from being able to proceed against a

       person twice for the same criminal transgression.” Hopkins v. State, 759 N.E.2d

       633, 639 (Ind. 2001) (quoting Richardson, 717 N.E.2d at 49). The Indiana

       Supreme Court has held that “two or more offenses are the ‘same offense’ in

       violation of Article I, Section 14 of the Indiana Constitution, 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, 717 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 7 of 19
       49. “On appeal, the defendant bears the burden to show that his convictions

       violated his constitutional right to be free from double jeopardy.” Boyd v. State,

       766 N.E.2d 396, 400 (Ind. Ct. App. 2002) (citing Lutes v. State, 272 Ind. 699,

       401 N.E.2d 671, 672-673 (1980)).


[18]   In addition, Indiana courts “have long adhered to a series of 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.” Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d

       826, 830 (Ind. 2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J.,

       concurring))). “Even 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, 761 N.E.2d at 830),

       trans. denied. As enumerated in Justice Sullivan’s concurrence in Richardson and

       endorsed by the Indiana Supreme Court in Guyton, five additional categories of

       double jeopardy exist: (1) conviction and punishment for a crime which is a

       lesser-included offense of another crime for which the defendant has been

       convicted and punished; (2) 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; (3) conviction and punishment for a crime which

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

       defendant has been convicted and punished; (4) conviction and punishment for

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 8 of 19
       an enhancement of a crime where the enhancement is imposed for the very

       same behavior or harm as another crime for which the defendant has 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 has been

       convicted and punished. See Guyton, 771 N.E.2d at 1143; Richardson, 717

       N.E.2d at 55-56 (Sullivan, J., concurring).


[19]   To the extent that Hayden argues that his convictions for Count I, robbery as a

       class C felony, and Count II, unlawful possession of a firearm by a serious

       violent felon, violate the statutory elements test, we observe that the objective of

       the statutory elements test is to determine whether the essential elements of

       separate statutory crimes charged could be established hypothetically.

       Richardson, 717 N.E.2d at 50. The charged offenses are identified by comparing

       the essential statutory elements of one charged offense with the essential

       statutory elements of the other charged offense. Id.


               Inspecting the relevant statutes and the charging instrument to
               identify those elements which must be established to convict
               under the statute, this review considers the essential statutory
               elements to determine the identity of the offense charged, but
               does not evaluate the manner or means by which the offenses are
               alleged to have been committed, unless the manner or means
               comprise an essential element.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 9 of 19
       Id. “[I]dentity tests depend upon the evidence required [under the statute] to

       convict, not the evidence actually introduced at trial.” Id. at 50 n.39 (quoting

       Larry Simon, Note, Twice in Jeopardy, 75 Yale L.J. 262, 273 (1965)).


[20]   Ind. Code § 35-42-5-1 governs robbery as a class C felony and at the time of the

       offense provided that “[a] person who knowingly or intentionally takes property

       from another person or from the presence of another person: (1) by using or

       threatening the use of force on any person; or (2) by putting any person in fear;

       commits robbery, a Class C felony.”3 Ind. Code § 35-47-4-5 governs unlawful

       possession of a firearm by a serious violent felon and at the time of the offense

       provided in part that “[a] serious violent felon who knowingly or intentionally

       possesses a firearm commits unlawful possession of a firearm by a serious

       violent felon, a Class B felony.”4 Robbery contains the element of taking

       property, which is not an element of unlawful possession of a firearm by a

       serious violent felon. Possession of a firearm by a serious violent felon requires

       a showing that the person is a serious violent felon which is not an element of

       robbery. The convictions do not violate the statutory elements test.


[21]   We turn to whether Hayden’s convictions for Counts I and II violate the actual

       evidence test. In order to find a double jeopardy violation under the actual

       evidence test, a defendant must demonstrate and a reviewing court must




       3
           Subsequently amended by Pub. L. No. 158-2013, § 450 (eff. July 1, 2014).
       4
        Subsequently amended by Pub. L. No. 158-2013, § 590 (eff. July 1, 2014); Pub. L. No. 214-2013, § 40 (eff.
       July 1, 2014); Pub. L. No. 168-2014, § 88 (eff. July 1, 2014).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015        Page 10 of 19
       conclude that there is a reasonable possibility that the evidentiary facts used by

       the factfinder to establish the essential elements of an offense for which the

       defendant was convicted or acquitted may also have been used to establish all

       the essential elements of a second challenged offense. Hines v. State, 30 N.E.3d

       1216, 1222 (Ind. 2015); Vestal v. State, 773 N.E.2d 805, 806 (Ind. 2002), reh’g

       denied. “Application of this test requires the court to ‘identify the essential

       elements of each of the challenged crimes and to evaluate the evidence from the

       jury’s perspective . . . .’” Hines, 30 N.E.3d at 1222 (quoting Lee v. State, 892

       N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831, 832

       (Ind. 2002))). “In determining the facts used by the fact-finder, ‘it is appropriate

       to consider the charging information, jury instructions, [ ] arguments of

       counsel’ and other factors that may have guided the jury’s determination.” Id.

       (quoting Lee, 892 N.E.2d at 1234 (citing Spivey, 761 N.E.2d at 832 and

       Richardson, 717 N.E.2d at 54 n.48)).


[22]   We note that Hayden’s Appendix and the transcript do not contain a copy of

       the jury instructions.5 The charging information for Count I, robbery as a class

       B felony, alleged that Hayden “while armed with a deadly weapon, to wit: a

       firearm, knowingly or intentionally [took] property, to wit: United States

       currency; from the person or presence of another person, to wit: CI 1921, by

       using or threatening the use of force, or by putting said CI 1921 in fear . . . .”



       5
        The transcript merely states: “ACCORDING TO LAW, PRELIMINARY JURY INSTRUCTIONS ARE
       READ TO THE JURY BY THE COURT” and “ACCORDING TO LAW, THE COURT READ THE
       BALANCE OF THE FINAL INSTRUCTIONS TO THE COURT.” Transcript at 123-124, 385.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 11 of 19
Appellant’s Appendix at 18. The charging information for Count II alleged that

Hayden, “a serious violent felon, did knowingly or intentionally possess a

firearm . . . .” Id. at 19. The record reveals that Hayden entered the C.I.’s

vehicle with the gun, exited the vehicle with the gun, and later threw the gun on

top of the barn. Based upon the record, we cannot say that Hayden has

demonstrated a reasonable possibility that the evidentiary facts used by the

factfinder to establish the essential elements of robbery may also have been used

to establish all the essential elements of possession of a firearm by a serious

violent felon. See Guyton, 771 N.E.2d at 1142-1143 (observing that the

defendant claimed his convictions for murder and carrying a handgun without a

license violated the Double Jeopardy provisions of the Indiana Constitution and

cited Richardson, and holding that carrying a gun along the street was one crime

and using it was another); Guyton, 771 N.E.2d at 1145-1146 (Dickson, J.,

concurring in result) (observing that the State demonstrated that the defendant

caused a death by shooting the victim and also showed that the defendant

possessed the gun before and after the shooting and that it was not reasonably

possible that the jury ignored this evidence and based its finding of guilt for the

handgun offense solely on the defendant’s possession of the weapon at the time

he fired it); Thy Ho v. State, 725 N.E.2d 988, 992-993 (Ind. Ct. App. 2000)

(holding that distinct evidentiary facts were used to prove that the defendant

committed robbery while armed with a handgun while a lack of evidentiary

facts were used to prove that the defendant did not have a license to carry that

handgun and that the defendant’s convictions were not the same offense under

Indiana’s Double Jeopardy Clause).
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 12 of 19
[23]   Moreover, the trial court reduced the conviction for Count I, robbery, from a

       class B felony to a class C felony due to the fact that the weapon used to

       enhance Count I from a class C felony to a class B felony was the same weapon

       which formed the basis of Count II, possession of a firearm by a serious violent

       felon. This reduction removed the requirement that the robbery was committed

       while armed with a deadly weapon. See Ind. Code § 35-42-5-1 (2004)

       (providing that robbery is a class B felony if it is committed while armed with a

       deadly weapon). Even assuming that a double jeopardy concern existed under

       the actual evidence test, any concern was removed by the reduction of Count I

       from robbery as a class B felony to a class C felony.6 See Spears v. State, 735

       N.E.2d 1161, 1166 (Ind. 2000) (holding that the remedy for double jeopardy

       violations has routinely been to reduce or vacate one of the convictions), reh’g

       denied.


[24]   Hayden also argues that mere possession of a firearm or being armed with a

       deadly weapon is not enough to impose multiple punishments and cites Nicoson

       v. State, 938 N.E.2d 660 (Ind. 2010); and Cross v. State, 15 N.E.3d 569 (Ind.

       2014). In Nicoson, the defendant argued that he was placed in double jeopardy

       because the mere use of a firearm not only subjected him to the higher




       6
         We note that Hayden focuses his double jeopardy argument on Counts I and II. He does not allege that his
       convictions for Count III, escape, which merely alleged that Hayden fled from lawful detention, and Count
       V, resisting law enforcement as a class A misdemeanor for fleeing from Detective Gerardot violate double
       jeopardy principles. As noted, the record does not include the jury instructions. We cannot say that Hayden
       has argued or demonstrated that Counts III and V both relate to his act of running from Detective Gerardot
       or that he has met his burden of demonstrating double jeopardy with respect to these counts.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015        Page 13 of 19
       sentencing range imposed for class B felonies but also subjected him to an

       additional enhancement under Ind. Code § 35-50-2-11, which provided that the

       State could seek to have a person who allegedly committed a certain offense

       sentenced to an additional fixed term of imprisonment if the State could show

       that the person knowingly or intentionally used a firearm in the commission of

       the offense. 938 N.E.2d at 662-664. The Court stated that mere possession of a

       firearm or being armed with a deadly weapon was not enough under the

       statute. Id. at 665. In Cross, the defendant argued that the post-conviction court

       violated Indiana double jeopardy principles by entering convictions and

       imposing sentences for both carrying a handgun without a permit and an

       enhancement of a dealing conviction based on possessing the same handgun.

       15 N.E.3d at 571. The Court cited Nicoson and vacated the defendant’s

       sentence imposed under the handgun enhancement charge. Id. at 573. Unlike

       Nicoson and Cross, the trial court reduced the conviction from a class B felony to

       a class C felony due to the fact that the weapon used to enhance Count I from a

       class C felony to a class B felony was the same weapon which formed the basis

       of Count II, possession of a firearm by a serious violent felon. We cannot say

       that Nicoson or Cross require reversal.


       B. Continuous Crime Doctrine


[25]   The Indiana Supreme Court recently clarified the application of the continuous

       crime doctrine. In Hines v. State, the Court disagreed with Buchanan v. State, 913

       N.E.2d 712 (Ind. Ct. App. 2009), trans. denied, to the extent it stood for the

       proposition that the continuous crime doctrine may be judicially extended to

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 14 of 19
       two distinct criminal offenses. 30 N.E.3d at 1220. The Court held that the

       continuous crime doctrine is a rule of statutory construction and common law

       limited to situations where a defendant has been charged multiple times with

       the same offense. Id. at 1219. The Court held that it “applies only where a

       defendant has been charged multiple times with the same ‘continuous’ offense.”

       Id. at 1220. The Court also held that the doctrine did not apply to the facts of

       that case because the defendant was convicted of criminal confinement as a

       class C felony and battery as a class D felony, and he was not convicted of

       multiple charges of criminal confinement, nor multiple charges of battery. Id. at

       1220-1221. The Court also observed that battery was not a crime for which all

       of the elements necessary to impose criminal liability were also elements found

       in criminal confinement or vice versa. Id. at 1221. The Court concluded that

       criminal confinement and battery were two distinct chargeable crimes to which

       the continuous crime doctrine did not apply. Id.


[26]   Hayden asserts that the trial court’s order that some of his sentences be served

       consecutive to each other violates the continuous crime doctrine. He concludes

       by requesting that his sentences for Counts I and II be served concurrent with

       each other and that the sentences for Counts III through VI be served

       concurrent with each other. He does not cite authority that the continuous

       crime doctrine addresses whether sentences should be served consecutively.


[27]   He contends that “[i]mposition of consecutive sentences in Counts I and II is

       also violative of double jeopardy principles in that the charged robbery and the

       charged firearm possession were demonstrably part of a single episode of

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 15 of 19
       criminal conduct.” As to whether Counts I and II were part of a single episode

       of criminal conduct, we observe that the continuous crime doctrine is distinct

       from the concept of an “episode of criminal conduct,” which applies under Ind.

       Code § 35-50-1-2 to limit the aggregate term of consecutive sentences when the

       convictions are not for crimes of violence and the “offenses or a connected

       series of offenses . . . are closely related in time, place, and circumstance.” See

       Seal v. State, (filed July 15, 2015), Ind. App. No. 48A02-1410-CR-775, slip op. at

       11 n.3, trans. pending. Hayden does not cite Ind. Code § 35-50-1-2, and we

       cannot say that the consecutive sentences of six years for Count I, robbery as a

       class C felony, and fifteen years for Count II, unlawful possession of a firearm

       by a serious violent felon as a class B felony, violate Ind. Code § 35-50-1-2. See

       Ind. Code § 35-50-1-2 (providing that “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”);

       Ind. Code § 35-50-2-4 (providing that the advisory sentence for a class A felony

       is thirty years).


[28]   To the extent that Hayden raises the continuous crime doctrine to challenge his

       convictions, we will address his arguments. With respect to Counts I and II,

       Hayden was not convicted of multiple charges of robbery, nor multiple charges

       of unlawful possession of a firearm by a serious violent felon. Robbery is not a


       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 16 of 19
       crime for which all of the elements necessary to impose criminal liability are

       also elements found in unlawful possession of a firearm by a serious violent

       felon or vice versa. Accordingly, we conclude that robbery and unlawful

       possession of a firearm by a serious violent felon are two distinct chargeable

       crimes to which the continuous crime doctrine does not apply. See Hines, 30

       N.E.3d at 1221.


[29]   Hayden also argues that the continuous crime doctrine applies to Count III,

       escape as a class C felony, Count IV, intimidation as a class D felony, Count V,

       resisting law enforcement as a class A misdemeanor, and Count VI, resisting

       law enforcement as a class A misdemeanor. We note that Hayden was not

       convicted of multiple charges of escape or intimidation, and he does not

       develop an argument that the elements necessary to impose criminal liability for

       escape, intimidation, or resisting law enforcement are the elements found in

       another charge. Thus, we cannot say that the continuous crime doctrine applies

       to the convictions for escape or intimidation.


[30]   To the extent that Hayden was convicted of two counts of resisting law

       enforcement as a class A misdemeanor, in Armstead v. State, 549 N.E.2d 400,

       401 (Ind. Ct. App. 1990), we noted that the offense of resisting law enforcement

       does not constitute a crime against the person. We further noted that the

       offense is an interference with governmental operations constituting an offense

       against public administration. 549 N.E.2d at 401. We stated that a person who

       commits such an offense “harms the peace and dignity of the State of Indiana

       and its law enforcement authority.” Id. We held, therefore, that the “harm

       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 17 of 19
       caused by one incident is the same regardless of the number of police officers

       resisted. It is the act of resisting duly constituted authority which the statute

       prohibits, not resisting individual representatives of that authority.” Id. We

       noted that multiple violations of the statute occur when “more than one

       incident occurs.” Id. at 402.


[31]   Count V alleged that Hayden “did knowingly or intentionally flee from”

       Detective Gerardot after Detective Gerardot ordered him to stop. Appellant’s

       Appendix at 22. Count VI alleged that Hayden “did knowingly or intentionally

       forcibly resist, obstruct or interfere with” Detective Gerardot. Id. at 23. The

       record reveals that Detective Gerardot transported Hayden to the hospital and

       opened the rear door of his vehicle when Hayden “took off running” and did

       not comply with Detective Gerardot’s order to stop. Transcript at 271. At a

       later time in the pursuit and another place, Detective Gerardot forcefully

       removed Hayden from a woman’s car and Hayden struggled with officers.

       Under the circumstances, we cannot say that the continuous crime doctrine

       precludes the imposition of two convictions of resisting law enforcement as

       class A misdemeanors because he was not charged with the same continuous

       offense. See Williams v. State, 755 N.E.2d 1183, 1186 (Ind. Ct. App. 2001)

       (holding that the defendant perpetrated two separate offenses of resisting law

       enforcement and the trial court properly entered convictions for both counts

       where the defendant fled from officers after being commanded to stop and also

       forcibly resisted those officers when they caught up with him and inflicted

       bodily injury upon them); see also Arthur v. State, 824 N.E.2d 383, 386 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 18 of 19
       App. 2005) (recognizing that “resisting law enforcement by fleeing is a different

       ‘species’ from resisting law enforcement by force”), trans. denied, disapproved on

       other grounds by Brock v. State, 955 N.E.2d 195 (Ind. 2011), cert. denied, 132 S. Ct.

       1801 (2012).


                                                   Conclusion

[32]   For the foregoing reasons, we affirm Hayden’s convictions and sentence.


[33]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015   Page 19 of 19
