MEMORANDUM DECISION                                                     FILED
Pursuant to Ind. Appellate Rule 65(D), this                         Jul 17 2018, 9:32 am

Memorandum Decision shall not be regarded as                            CLERK
precedent or cited before any court except for the                  Indiana Supreme Court
                                                                       Court of Appeals
purpose of establishing the defense of res judicata,                     and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                     Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                Attorney General of Indiana
Evansville, Indiana                                    Caroline G. Templeton
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jarvice Sears,                                             July 17, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A01-1708-CR-1815
        v.                                                 Appeal from the Vanderburgh
                                                           Superior Court
State of Indiana,                                          The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           82D03-1510-F1-6635



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018        Page 1 of 10
                                          Case Summary
[1]   In October of 2015, Jarvice Sears and two others entered an Evansville

      apartment wearing masks and brandishing guns, having decided to rob the drug

      dealer within of cash and drugs. There were ten persons in the apartment at the

      time. When the intended victim attempted to shoot Sears, his handgun

      misfired. Sears shot the victim in the neck and chest. Meanwhile, a man in the

      next apartment came to investigate, and when he opened the door, Sears shot

      him in the abdomen.


[2]   The State ultimately proceeded against Sears on two counts of Level 1 felony

      burglary, Level 2 felony attempted robbery, four counts of Level 3 felony

      attempted robbery, and two counts of Level 3 felony aggravated battery, and a

      jury found Sears guilty as charged. The trial court entered judgment of

      conviction on all verdicts but did not sentence Sears for Level 2 felony

      attempted robbery or two counts of Level 3 felony aggravated assault. The trial

      court imposed an aggregate sentence of sixty-nine years of incarceration for the

      remaining convictions. Sears contends that (1) his two convictions for Level 1

      felony burglary violate prohibitions against double jeopardy, (2) his convictions

      for Level 2 felony attempted robbery and Level 3 felony aggravated battery

      violate common-law prohibitions against multiple punishment for the same

      harm, and (3) his sixty-nine-year sentence is inappropriately harsh. We agree

      with Sears’s first contention and, in part, with his second. We choose,

      however, not to address Sears’s third contention because we feel that our



      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018   Page 2 of 10
      disposition of Sears’s first two claims renders such review premature. We

      affirm in part, reverse in part, and remand with instructions.



                            Facts and Procedural History
[3]   There are two upstairs apartments above the 711 Tavern on 711 West Virginia

      Street in Evansville, Apartments A and B, which are accessed by a common

      hallway. In October of 2015, Jeremy Herbert lived in Apartment A, and Logan

      Orth used the apartment to deal marijuana. On October 25, 2015, Diego

      Thomas and Marquell Jackson decided to rob Orth because Thomas knew that

      Orth was a drug dealer and believed that he would have money and drugs. On

      October 26, 2015, Thomas went the home of his cousin Sears to retrieve his

      rifle and asked Sears to procure an additional firearm. Jackson recruited O’Neil

      Bruin and Cory Cain to participate in the robbery.


[4]   Later on October 26, 2015, Bruin, Jackson, Thomas, and Sears exited their

      vehicle at 711 West Virginia Street, while Cain, the driver, stayed behind. The

      quartet entered the building and went upstairs, and three of them entered

      Apartment A with masks on and guns drawn. Orth, Herbert, Emily Todisco,

      Leah Walker, Colton Claybrooks, Kaylee Rocca, Brayden Scott, and three of

      Herbert’s friends were smoking marijuana in Apartment A at the time. Sears

      threw a bag on the table and demanded that everyone in the room fill it with

      their valuables. Orth managed to retrieve his handgun from under a couch and

      attempted to fire it twice at the intruders, but it misfired. Sears shot Orth in the

      throat and chest.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018   Page 3 of 10
[5]   Meanwhile, Cameron Kendall was helping his brother, who lived in Apartment

      B, move out that evening. Kendall happened to have a concealed-carry permit

      and was armed. Kendall’s brother was loading items into a vehicle when

      Kendall heard shots, and he decided to check on his brother. As soon as

      Kendall opened the door to Apartment B, Sears shot him in the abdomen.

      Kendall returned fire until he ran out of ammunition, shooting Bruin in the

      right leg and left shoulder, Thomas in the hip, and Sears in the chest and back.


[6]   The State ultimately proceeded to jury trial on charges of two counts of Level 1

      felony burglary resulting in serious bodily injury where Orth and Kendall were

      the victims; Level 2 felony attempted robbery resulting in serious bodily injury

      where Orth was the victim; four counts of Level 3 felony attempted robbery

      threatening to use force while armed where Herbert, Todisco, Walker, and

      Claybrooks were the victims; and two counts of Level 3 felony aggravated

      battery where Orth and Kendall were the victims. The jury found Sears guilty

      as charged. The trial court entered judgment of conviction on all of the jury’s

      verdicts but did not impose sentences for Level 2 felony attempted robbery or

      the two counts of Level 3 felony aggravated battery due to double jeopardy

      concerns. The trial court sentenced Sears to thirty years of incarceration for

      each of the Level 1 felony burglary convictions, to be served consecutively, and

      nine years for each of the Level 3 felony attempted robbery convictions, to be

      served concurrent with each other but consecutive to the burglary sentences, for

      an aggregate sentence of sixty-nine years.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018   Page 4 of 10
                                    Discussion and Decision
                       I. Whether Sears Can Be Convicted of
                       Two Counts of Level 1 Felony Burglary
[7]   Sears contends that one of his two convictions for Level 1 felony burglary must

      be vacated. Although Sears frames his challenge as being based on the same-

      actual-evidence test,1 it is actually a claim based on interpretation of Indiana’s

      burglary statute. However styled, the challenge is one that we conclude has

      merit. In a pair of recent decisions, including Paquette v. State, 2018 WL

      3198866 (Ind. June 29, 2018), the Indiana Supreme Court squarely held that

      conduct-based crimes could only support one conviction per act, no matter the

      number of victims. In Paquette, the Court examined the question of whether a

      single act of resisting law enforcement that resulted in three deaths could

      support three convictions. Pursuant to Indiana Code section 35-44.1-3-1,


               (a) A person who knowingly or intentionally:
               [….]
                    (3) flees from a law enforcement officer after the officer has,
                    by visible or audible means, including operation of the law
                    enforcement officer’s siren or emergency lights, identified
                    himself or herself and ordered the person to stop;
               commits resisting law enforcement,




      1
        In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court 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 … the actual evidence used to convict, the essential elements of one challenged offense also establish the
      essential elements of another challenged offense.” Id. at 49–50.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018                  Page 5 of 10
               [….]
                   (3) [a] Level 3 felony if, while committing any offense
                   described in subsection (a), the person operates a vehicle in a
                   manner that causes the death of another person[.]
[8]    The Court concluded that Paquette’s single act of resisting law enforcement

       could support only one conviction, despite causing three deaths:


               Since our legislature has drafted the resisting law enforcement
               statute without such explicit authorization and has otherwise
               remained silent, we glean its intent to allow only one resisting
               law enforcement conviction for each act of resisting. Subsection
               (b) merely enhances the underlying offenses in subsection (a),
               thus the number of resulting deaths does not affect the number of
               convictions allowed—only one is permissible.
       Paquette, 2018 WL 3198866 at *6.


[9]    Moving to this case, Indiana Code section 35-43-2-1 provides, in part, as

       follows:


               A person who breaks and enters the building or structure of
               another person, with intent to commit a felony or theft in it,
               commits burglary, a Level 5 felony. However, the offense is:
               [….]
                   (4) a Level 1 felony if:
                        (A) the building or structure is a dwelling; and
                        (B) it results in serious bodily injury to any person other
                        than a defendant.
[10]   As with resisting law enforcement, the crime of burglary is conduct-based (as

       opposed to result-based), complete when a person breaks and enters the

       building or structure of another person with the intent to commit a felony or


       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018   Page 6 of 10
       theft within. The circumstances and/or results of the crime, such as those listed

       in Indiana Code section 35-43-2-1(4), serve to enhance the penalty for the

       burglary, but the statute does not contain language explicitly allowing for

       multiple convictions in cases where multiple victims are involved.

       Consequently, we conclude that Sears’s one act of burglary may support only

       one conviction. We remand with instructions to vacate Sears’s conviction for

       burglary as a Level 1 felony because it resulted in serious bodily injury to Orth,

       with the reason for vacating that particular conviction made clear in the next

       section.


                         II. Double Punishment for the Same
[11]   Sears argues that his convictions for Level 2 felony attempted robbery and two

       counts of Level 3 felony aggravated battery must be vacated, as they are

       allegedly enhanced or based on the same harms that enhanced his two Level 1

       felony burglary convictions. “[W]e 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.”

       Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Among these rules is the one

       “prohibiting conviction and punishment ‘for 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.’” Miller v.

       State, 790 N.E.2d 437, 439 (Ind. 2003) (quoting Richardson, 717 N.E.2d at 56

       (Sullivan, J., concurring) (emphasis removed)).



       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018   Page 7 of 10
             A. The Level 2 Felony Attempted Robbery Conviction
[12]   The trial court entered judgment of conviction for attempted robbery resulting

       in serious bodily injury where Orth was the victim. While it is true that this

       attempted robbery conviction was enhanced by the same serious bodily injury

       that enhanced one of Sears’s Level 1 felony burglary convictions, because we

       have ordered the vacation of Sears’s Level 1 felony burglary conviction as to

       Orth, the double enhancement has been eliminated. Sears’s Level 2 felony

       attempted robbery conviction is no longer being enhanced by the same harm

       that was also used to enhance a burglary conviction to a Level 1 felony and so

       does not need to be vacated or reduced in degree.


           B. The Two Level 3 Felony Aggravated Battery Convictions
[13]   The trial court entered judgment of conviction for two counts of aggravated

       battery, with Orth and Kendall as the victims. In both cases the same harm

       (i.e., shooting) that formed the basis of Sears’s two aggravated battery

       convictions was used to enhance his burglary conviction to a Level 1 felony (for

       serious bodily to Kendall) and his attempted robbery conviction to a Level 2

       felony (for serious bodily injury to Orth), which results in impermissible double

       punishments. The State also concedes that these violations cannot be cured by

       reducing Sears’s aggravated battery convictions to a less serious form. 2




       2
        “A person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death
       […] commits aggravated battery, a Level 3 felony.” Ind. Code § 35-42-2-1.5.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018              Page 8 of 10
       Consequently, we remand with instructions to vacate Sears’s two Level 3 felony

       aggravated battery convictions.


                III. Whether Sears’s Sentence is Inappropriate
[14]   Sears also contends that his sentence was inappropriately harsh. In that this

       matter is being remanded for resentencing, it would be premature to address

       this argument.



                                               Conclusion
[15]   We conclude that Sears’s convictions for two counts of Level 1 felony burglary

       cannot stand, and we remand with instructions to vacate the burglary

       conviction based on the harm to Orth. This vacation also means that Sears’s

       conviction for attempted robbery conviction need not be reduced in degree.

       Sears’s convictions for two counts of Level 3 felony aggravated battery,

       however, violate common-law prohibitions against multiple punishments for

       the same harm and must be vacated. Finally, under the circumstances of this

       case, we will not evaluate Sears’s drastically reduced sentence for

       appropriateness. We remand with instructions to (1) vacate Sears’s Level 1

       felony burglary conviction based on serious bodily injury to Orth, (2) vacate his

       two convictions for Level 3 felony aggravated battery, and (3) resentence him.


[16]   We affirm the judgment of the trial court in part, reverse in part, and remand

       with instructions.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018   Page 9 of 10
Robb, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1815 | July 17, 2018   Page 10 of 10
