MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                       Jun 21 2019, 5:27 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                          Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Evan M. Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Cherry,                                           June 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2120
        v.                                               Appeal from the Putnam Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew L.
Appellee-Plaintiff                                       Headley, Judge
                                                         Trial Court Cause No.
                                                         67C01-1706-F1-156



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019                       Page 1 of 18
[1]   Justin Cherry appeals his convictions of Level 2 felony burglary, 1 Level 2 felony

      conspiracy to commit burglary, 2 Level 1 felony burglary, 3 Level 3 felony

      conspiracy to commit armed robbery, 4 Level 3 felony criminal confinement, 5

      Level 6 felony theft, 6 Level 6 felony auto theft, 7 and two counts of Level 3

      felony armed robbery. 8 Cherry argues there was insufficient evidence to place

      him at the scene of the crimes, there was insufficient evidence to prove he

      conspired to commit armed robbery or burglary, and numerous convictions

      violate his constitutional right to be free of double jeopardy. We affirm in part,

      reverse in part, and remand.



                                Facts and Procedural History
[2]   Around 4 a.m. on April 2, 2017, Terry McCarter heard a loud noise toward the

      front of his house. Terry and his wife, Patsy McCarter, were in bed at the time.

      Upon hearing the noise, Terry went to investigate. Terry was confronted in his




      1
          Ind. Code § 35-43-2-1(3) (2014).
      2
          Ind. Code § 35-41-5-2 (2014) (conspiracy); Ind. Code § 35-43-2-1(3) (2014) (burglary).
      3
          Ind. Code § 35-43-2-1(4) (2014).
      4
          Ind. Code § 35-41-5-2 (2014) (conspiracy); Ind. Code § 35-42-5-1(1) (2014) (robbery).
      5
          Ind. Code § 35-42-3-3(b)(2) (2014).
      6
          Ind. Code § 35-43-4-2(1)(A) (2014).
      7
          Ind. Code § 35-43-4-2.5(b)(1) (2014).
      8
          Ind. Code § 35-42-5-1(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019                Page 2 of 18
      dining room by a masked man with a gun. The man ordered Terry to lay face

      down on the floor.


[3]   Three more men came into the house, and one of them held Terry at gunpoint.

      Another man went to the bedroom, pointed a gun at Patsy, and said “we’re

      going to rob you.” (Tr. Vol. II at 176.) The man stuffed all of Patsy’s jewelry

      into a pillow case. He then took the jewelry and a safe he found out of the

      room, before returning and ransacking the room. The man ordered Patsy out of

      bed and flipped the mattress. The man found a gun on the nightstand and took

      it. Because the man was covered from head to toe in black clothing, Patsy was

      not able to describe any identifying characteristics of the robber, but she noticed

      he was wearing unique gloves with white patterns. While Patsy was being held

      in the bedroom, and Terry was being held in the dining room, the other two

      men searched the rest of the house and stole everything of value. Terry heard

      one of the men refer to another as “Dustin or Justin or something like that.”

      (Id. at 159.)


[4]   From the house, the men stole $500 from Terry’s wallet, $6,000 from the

      McCarters’ small business that was stored in a desk, $200 from Patsy’s purse, a

      .223 rifle, an antique musket loader, a .22 rifle, a single shot shotgun, a leaded-

      glass clock, multiple prescription medications, Patsy’s jewelry, the safe, and the

      handgun from the bedroom. From the McCarters’ barn, the men took a

      chainsaw, a tool set, and some smaller personal items. From the garage, the

      men took an air compressor and some drills.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 3 of 18
[5]   After about an hour, when the men had finished plundering the McCarters’

      property, the men ordered Terry and Patsy into a sunroom adjoining their

      bedroom. The men demanded to know where their “stash” was. (Tr. Vol. II at

      143.) Then, one of the men hit Terry in the back of the head with the butt of a

      rifle, knocking Terry unconscious. The men locked Terry and Patsy in the

      sunroom.


[6]   When Terry awoke, he and Patsy watched the four men walk to their garage

      and steal their 2003 Buick Rendezvous. After the men left, Terry escaped the

      sunroom through an unlocked, second entrance. He went to the garage, found

      his cell phone, and drove the couple’s other car to a location with sufficient cell

      service to call police. Officers responded and began their investigation. On a

      ramp leading up to the garage, police found a shoe print not belonging to Terry

      or Patsy.


[7]   Terry was evaluated by paramedics but opted not to go to the hospital. The

      back of Terry’s head turned black and blue. Three days after the robbery, Terry

      began to have severe headaches that continued to worsen. A nearby hospital

      diagnosed him with hemorrhaging near the brain. Terry was transferred to St.

      Vincent Hospital in Indianapolis, where the doctors determined the bleeding

      had stopped. Terry was told he had a large amount of blood on his brain and

      would continue to have headaches. After going home, Terry’s condition

      worsened. He returned to St. Vincent Hospital where the doctors discovered

      the bleeding had begun again. Terry underwent surgery and spent five days in

      the hospital recovering.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 4 of 18
[8]    A few days after the burglary, in Indianapolis, Christina Blair noticed a

       suspicious vehicle parked along the street outside her home. The driver

       appeared to be waiting until nobody was watching before he exited the car.

       Blair watched as the man exited the car and went to a house at 3835 Spann

       Avenue, which recently had been the site of police activity. Blair walked up to

       the car and noticed it had a handicapped license plate, despite the man not

       appearing to be handicapped. Blair reported the vehicle to the police.


[9]    The officer responding to Blair’s call ran the car’s plates. He discovered it was

       the vehicle stolen from the McCarters. The officer surveilled the vehicle for a

       while, and eventually he had it impounded. The vehicle was transported to the

       Putnam County Sheriff’s Department, where it was searched. Police found a

       receipt from a McDonald’s restaurant on Southeastern Avenue in Indianapolis,

       and the receipt had a timestamp after the robbery. Deputy McFadden of the

       Putnam County Sheriff’s Department travelled to Indianapolis and drove past

       the home at 3835 Spann Avenue to gather information. Deputy McFadden

       drove behind the home and noticed the garage partially open. A man, later

       identified as Justin Cherry, came out of the garage and watched Deputy

       McFadden drive by.


[10]   On April 9, 2017, officers with the Indianapolis Metropolitan Police

       Department (“IMPD”) executed a search warrant at 3835 Spann Avenue. In

       the garage, the police discovered pill bottles with the names of Terry and Patsy

       McCarter on them. Officers also seized a phone belonging to Daltyn

       Randolph, one of the home’s occupants.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 5 of 18
[11]   Deputy McFadden obtained his own warrant to search the 3835 Spann Avenue.

       IMPD officers secured the residence and ordered everyone out. After a delay,

       Daltyn Randolph, Steven Cosand, Michael Hostetler and Ronnie Sosby exited.

       Thirty minutes after those four exited, Cherry surrendered. Cherry’s boots were

       removed and compared to the print found at the McCarter’s home. In one of

       the bedrooms, deputies found multiple pieces of mail addressed to Cherry,

       along with pictures of Cherry and his daughter, and a safe containing pieces of

       jewelry belonging to Patsy. In an airduct in the same bedroom, police

       recovered the .38 handgun taken from the McCarter’s nightstand. Police also

       recovered a cell phone belonging to Cosand while searching the house.


[12]   On May 10, 2017, IMPD officers executed a search warrant on a storage unit

       rented by a girlfriend of Paul Reese, who was another suspect being investigated

       by police. The storage unit contained multiple items belonging to the

       McCarters. Police obtained search warrants for both of the phones they found

       at 3835 Spann Avenue. A search of Randolph’s phone revealed three contacts:

       Justin, Paul, and Drake. There was also a web search for “Couple held at

       gunpoint for an hour during home invasion.” (Tr. Vol. III at 38.) A search of

       Cosand’s phone revealed the same three contacts. The contact information for

       “Justin” matched a number Cherry had previously provided to a “state

       government official.” (Tr. Vol. III at 134.)


[13]   Using the information obtained, police secured a search warrant for cell phone

       records connected to Cherry’s phone number. The information showed Cherry

       travelled west on Interstate 70 on April 1 around 8:30 p.m. By 9:20 p.m.,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 6 of 18
       Cherry’s phone pinged on towers near Greencastle, Indiana, until 10:00 p.m.

       The information also showed Cherry was in communication with Charles

       Maybaum by way of multiple text messages and phone calls on April 1.


[14]   Cherry was arrested and charged with Level 2 felony burglary, Level 2 felony

       conspiracy to commit burglary, Level 1 felony burglary with serious injury,

       Level 3 felony conspiracy to commit armed robbery, Level 3 felony criminal

       confinement, Level 6 felony theft, Level 6 felony auto theft, and two counts of

       Level 3 felony armed robbery. A jury found Cherry guilty of all nine counts.

       The trial court sentenced Cherry on all nine counts to an aggregate sentence of

       seventy-three years in prison.



                                  Discussion and Decision
                                          Sufficient Evidence
[15]   Cherry argues the State provided insufficient evidence to convict him of any of

       his nine convictions. When considering the sufficiency of evidence, “a

       reviewing court does not reweigh the evidence or judge the credibility of the

       witnesses.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm

       “if the probative evidence and reasonable inferences drawn from the evidence

       could have allowed a reasonable trier of fact to find the defendant guilty beyond

       a reasonable doubt.” Id. at 126 (internal citation omitted).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 7 of 18
                                                  Identification

[16]   To convict Cherry of burglary, criminal confinement, theft, auto theft, or armed

       robbery, the State had to prove Cherry was at the scene. See S.M. v. State, 74

       N.E.3d 250, 254 (Ind. Ct. App. 2017) (identification of defendant established

       guilt beyond reasonable doubt). Cherry contends the State had only

       circumstantial evidence, and that evidence does not create a reasonable

       inference that Cherry was involved in the crimes. “Where the evidence of guilt

       is essentially circumstantial, the question for the reviewing court is whether

       reasonable minds could reach the inferences drawn by the jury; if so, there is

       sufficient evidence.” Whitney v. State, 726 N.E.2d 823, 825 (Ind. Ct. App.

       2000).


[17]   The State provided cellphone data showing Cherry’s locations. Prior to the

       burglary, cellphone data showed Cherry traveling from Indianapolis to

       Greencastle. Cherry’s phone returned to Indianapolis the next morning several

       hours after the burglary. A boot print found at the scene was the same size and

       bore the same characteristics as boots worn by Cherry. Patsy McCarter

       identified gloves found in Cherry’s room as the gloves her captor wore. Finally,

       when searching Cherry’s bedroom, police found the McCarters’ handgun, safe,

       and jewelry. Despite the McCarters being unable to identify Cherry as one of

       the men at the scene, it is reasonable to infer Cherry was there and involved in

       the criminal acts that took place on April 2. See Parsley v. State, 119 N.E.3d 131,

       140 (Ind. Ct. App. 2019) (holding circumstantial evidence was enough to find

       the defendant guilty), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 8 of 18
                                           Evidence of Conspiracy

[18]   Cherry also argues the State had insufficient evidence of him being part of a

       conspiracy to convict him of conspiracy to commit burglary or conspiracy to

       commit armed robbery. “A person conspires to commit a felony when, with

       intent to commit the felony, the person agrees with another person to commit

       the felony.” Ind. Code § 35-41-5-2. In order to convict Cherry of these two

       crimes, the State needed to show Cherry knowingly conspired with Charles

       Maybaum, Paul Reese, and/or Daltyn Randolph to commit burglary and

       armed robbery, respectively.


[19]   Cherry argues the State does not have any evidence of any agreement. “The

       State is not required to present evidence of an express agreement.” Drakulich v.

       State, 877 N.E.2d 525, 531-32 (Ind. Ct. App. 2007), trans. denied. “An

       agreement can be inferred from circumstantial evidence, which may include the

       overt acts of the parties in furtherance of the criminal act.” Dickenson v. State,

       835 N.E.2d 542, 552 (Ind. Ct. App. 2005), trans. denied. Cellphone data from

       Cherry, Maybaum, Reese, and Randolph showed all four travelled to

       Greencastle on April 1. In addition, the cellphone data showed communication

       between the four of them on April 1 in the hours leading up to the burglary.


[20]   Cherry argues the State failed to prove Cherry was in possession of his own

       cellphone on the night in question. We have already found sufficient evidence

       of Cherry being at the McCarter’s home in the early morning of April 2, 2017.

       Because the cellphone data showed Cherry travelled to Greencastle on April 1

       and the evidence demonstrates Cherry was at the McCarters’ home during the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 9 of 18
       burglary, it reasonably can be inferred Cherry was in possession of his own

       cellphone and was communicating with the others in regard to their plans to

       commit burglary and armed robbery. See Meehan v. State, 7 N.E.3d 255, 259

       (Ind. 2014) (evidence a jury could infer guilt from is sufficient for a conviction).


                                            Double Jeopardy
[21]   Cherry next argues his nine convictions violate his constitutional right to be free

       from double jeopardy. See Ind. Const. art. 1, § 14 (“No 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. Spivey v. State, 761 N.E.2d

       831, 832 (Ind. 2002). “[W]here the same act or transaction constitutes a

       violation of two distinct statutory provisions, the test to be applied to determine

       whether there are two offenses or only one, is whether each provision requires

       proof of an additional fact which the other does not.” Blockburger v. United

       States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).


[22]   We review de novo whether a defendant’s convictions violate this provision.

       Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied. “When two

       convictions are found to contravene double jeopardy principles, a reviewing

       court may remedy the violation by reducing either conviction to a less serious

       form of the same offense if doing so will eliminate the violation. If it will not,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 10 of 18
       one of the convictions must be vacated.” Richardson v. State, 717 N.E.2d 32, 54

       (Ind. 1999), holding modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013)

       (modification as to cases involving hung jury or acquittal).


                    Burglary Resulting in Serious Bodily Injury and Burglary

[23]   Cherry argues his convictions of both burglary counts violate the “actual

       evidence” test and the Blockburger test for same offense. The actual evidence

       test requires us to “determine whether each challenged offense was established

       by separate and distinct facts.” Richardson, 717 N.E.2d at 53. To determine

       what facts were used to convict, we consider the charging information, the final

       jury instructions, the evidence, and the arguments of counsel. Davis v. State, 770

       N.E.2d 319, 324 (Ind. 2002), reh’g denied.


[24]   The single burglary used to satisfy both counts took place on April 2 at the

       McCarter’s home. To convict Cherry of Level 2 felony burglary, the State had

       to prove: (1) Cherry (2) broke and entered into a building or structure of another

       person, (3) with the intent to commit a felony of theft in it (4) while armed with

       a deadly weapon or resulting in serious bodily injury to any person other than

       the defendant. Ind. Code § 35-43-2-1(3)(A)(B). This becomes a Level 1 felony

       if the “building or structure is a dwelling; and [the crime] results in serious

       bodily injury to any person other than the defendant.” Ind. Code § 35-43-2-

       1(4)(A)(B). The State concedes these two convictions violate double jeopardy

       because the jury had to rely on the same evidence when convicting Cherry of

       Level 2 felony burglary as they would for Level 1 felony burglary. See Bradley v.

       State, 113 N.E.3d 742, 755 (Ind. Ct. App. 2018) (convictions reversed when
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 11 of 18
       reasonably possible jury relied on the same acts for convictions). Accordingly,

       we vacate Cherry’s conviction of Level 2 felony burglary.


        Conspiracy to Commit Burglary and Conspiracy to Commit Armed Robbery

[25]   “A person conspires to commit a felony when, with intent to commit the

       felony, the person agrees with another person to commit the felony. A

       conspiracy to commit a felony is a felony of the same level as the underlying

       felony.” Ind. Code § 35-41-5-2(a) (2014). Cherry again argues these

       convictions violate the “actual evidence” test. The State used cellphone data to

       demonstrate Cherry conspired with at least one other person; however there is

       no specific evidence showing which crime Cherry conspired to commit or

       separate communications to demonstrate both. The State again concedes these

       two convictions violate double jeopardy because the jury had to rely on the

       same evidence when convicting Cherry of Level 2 conspiracy to commit

       burglary as it would for Level 3 felony conspiracy to commit armed robbery.

       See Bradley, 113 N.E.3d at 755 (convictions reversed when reasonably possible

       jury relied on the same acts for convictions). Accordingly, we vacate Cherry’s

       conviction of Level 3 felony conspiracy to commit armed robbery.


                                  Armed Robbery and Armed Robbery

[26]   Cherry next argues that, although there were two victims, there was only one

       act of armed robbery. Cherry believes there was only one act of armed robbery

       because both robberies occurred in the same house at the same time. “The

       continuing crime doctrine essentially provides that actions that are sufficient in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 12 of 18
       themselves to constitute separate criminal offenses may be so compressed in

       terms of time, place, singleness of purpose, and continuity of action as to

       constitute a single transaction.” Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct.

       App. 2005), trans. denied.


[27]   One count of armed robbery was charged for the crime against Terry McCarter.

       (App. Vol. II at 53.) When Terry went to investigate the noise he heard, he was

       ordered to lay on the ground and held at gunpoint. The other count was

       charged for the crime against Patsy McCarter. (App. Vol. II at 54.) Patsy was

       still in bed when she was held at gunpoint while one of the men stole her

       jewelry. Patsy was in a separate section of the house away from her husband,

       and they were held at gunpoint by different men. While both armed robberies

       did happen close together in time and in the same residence, the acts are

       separate and distinct from each other. See Borum v. State, 951 N.E.2d 619, 630

       (Ind. Ct. App. 2011) (continuity of defendant’s actions did not negate the fact

       there were different criminal acts committed at different times). Accordingly,

       Cherry could be convicted of both crimes.


                                 Armed Robbery, Theft, and Auto Theft

[28]   Cherry next argues his convictions of armed robbery, theft, and auto theft

       violate double jeopardy. Cherry again argues these convictions violate the

       actual evidence test. The elements of Level 3 felony armed robbery require

       proof (1) the defendant; (2) knowingly or intentionally; (3) took property; (4)

       from another person or from the presence of another person; (5) by using or

       threatening the use of force; (6) while armed with a deadly weapon. Ind. Code
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 13 of 18
       § 35-42-5-1(a). The elements for Level 6 felony theft are: (1) the defendant; (2)

       knowingly or intentionally; (3) exerted unauthorized control; (4) over the

       property of another person; (5) with intent to deprive the other person of any

       part of its value or use; and (6) the value of the property is at least $750 and less

       than $50,000. Ind. Code § 35-43-4-2(a). The elements of auto theft include: (1)

       a defendant; (2) knowingly or intentionally; (3) exerted unauthorized control;

       (4) over the property of another person; (5) with intent to deprive the other

       person of any part of its value or use; and (6) the property at issue is a motor

       vehicle as defined under Indiana Code Section 9-13-2-105(a). Ind. Code § 35-

       43-4-2(a)(1)(B).


[29]   In its closing argument, the State mentioned the Buick Rendezvous as fulfilling

       a required element of both theft and auto theft. As to theft, the prosecutor said:

       “Count 6, theft. In Indiana, theft has to be more than $750 for this count and

       less than $50,000. . . . All of her jewelry, the Rendezvous was taken, the guns

       were taken.” (Tr. Vol. III at 234-235.) When explaining auto theft, the

       prosecutor said “obviously the Buick Rendezvous was taken . . . so we get auto

       theft.” (Id. at 235.) Additionally, the jury instruction for theft did not specify

       which evidence supported that conviction. Because the State argued the Buick

       Rendezvous was evidence to satisfy both theft and auto-theft, it is reasonable to

       believe the jury could have relied on it to support both convictions.


[30]   The State argues that although the statutes for Level 6 felony theft and Level 3

       felony armed robbery are similar, each crime had a separate element that

       needed to be proven in order to convict Cherry. Cherry, on the other hand,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 14 of 18
       argues theft “is an element of robbery, because robbery requires the taking of

       property.” (Appellant Br. at 28-29.) In closing argument, the State explained,

       armed robbery “is you take property by the use of force or threaten the use of

       force.” (Tr. Vol. III at 234.) The State did not separate the evidence taken

       during the theft from the evidence taken during the armed robbery. The State

       simply asserted property was taken from the McCarters while they were held at

       gunpoint. Because the statute required the same element of taking of property

       and the State did not distinguish separate acts, the actual evidence test was

       again violated. See Clark v. State, 732 N.E.2d 1225, 1229 (Ind. Ct. App. 2000)

       (vacating two attempted arson convictions when all three convictions were

       based on one act).


[31]   Because the State did not distinguish the specific evidence that supported each

       of the three separate charges, we must vacate the convictions of Level 6 felony

       theft and Level 6 felony auto theft.


                              Criminal Confinement and Armed Robbery

[32]   Cherry’s final argument is that convictions of both criminal confinement and

       armed robbery violates double jeopardy. Cherry claims his convictions violate

       the actual evidence test. The actual evidence test requires us to “determine

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

       Richardson, 717 N.E.2d at 53. To determine what facts were used to convict, we

       consider the charging information, the final jury instructions, the evidence, and

       the arguments of counsel. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002), reh’g

       denied.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 15 of 18
[33]   In order to convict Cherry of criminal confinement, the State had to prove

       Cherry “knowingly or intentionally confined another person without the other

       person’s consent.” Ind. Code § 35-42-3-3 (2014). This becomes a Level 3

       felony if it is committed with a deadly weapon. When reviewing the count of

       criminal confinement at closing the prosecutor explained where and how the

       McCarters were confined. “They were confined on the porch. One was on the

       dining room floor, held at gunpoint, one was on the bed in the bedroom. They

       were confined.” (Tr. Vol. III at 234.) The jury instruction for criminal

       confinement does not inform the jury where the confinement occurred.

       Instead, it states “the Defendant did knowingly or intentionally confine Terry

       and Patsy McCarter without their consent, while armed with a deadly weapon,

       to-wit: a firearm.” (App. Vol. II at 123.)


[34]   In order to convict Cherry of armed robbery, the State presented evidence of

       Terry McCarter being held at gunpoint on the dining room floor and Patsy

       being held at gunpoint while she was in bed. The prosecutor explicitly told the

       jury it could rely on Terry and Patsy being held at gunpoint to support both

       armed robbery and criminal confinement. Although the McCarters were also

       locked on their porch, neither the prosecutor nor the jury instruction singled out

       that evidence as the only evidence supporting the confinement charge. As there

       is a reasonable probability the jury relied on the McCarters being held at

       gunpoint to find Cherry guilty of all three counts, we must vacate his

       confinement conviction. See D.J. v. State, 88 N.E.3d 236, 242 (Ind. Ct. App.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 16 of 18
       2017) (acts used to convict defendant of armed robbery cannot be used to

       support a conviction of criminal confinement).


                                        Double Jeopardy Conclusion

[35]   Cherry’s conviction of Level 2 felony burglary must be vacated because it rested

       on the same evidence as Cherry’s conviction of Level 1 felony burglary, and

       Cherry’s conviction of Level 3 felony conspiracy to commit armed robbery

       must be vacated because it rested on the same evidence as Cherry’s conviction

       of Level 2 felony conspiracy to commit burglary. Cherry’s convictions of Level

       6 felony theft and Level 6 felony auto theft must be vacated due to the State’s

       failure to clarify for the jury which specific evidence supported each charge.

       Finally, we must vacate Cherry’s conviction of Level 3 felony criminal

       confinement because of the probability the jury relied on the same acts of

       confinement to support the convictions of Level 3 felony armed robbery.


[36]   Thus, Cherry remains convicted of Level 1 felony burglary, Level 2 felony

       conspiracy to commit burglary, and two counts of Level 3 felony armed

       robbery.



                                               Conclusion
[37]   The evidence demonstrates Cherry was at the McCarters home and was

       involved in the criminal acts that took place. In addition, cellphone data

       revealing Cherry’s communications with a co-perpetrator leading up to the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019   Page 17 of 18
       crime support his conviction of conspiracy. Therefore, there is sufficient

       evidence to find Cherry guilty on all counts.


[38]   However, to avoid subjecting Cherry to double jeopardy, we must vacate his

       convictions of Level 2 felony burglary, Level 3 felony conspiracy to commit

       armed robbery, Level 3 felony criminal confinement, Level 6 felony theft, and

       Level 6 felony auto theft. We remand for the trial court to resentence Cherry

       for his remaining convictions. 9


[39]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Tavitas, J., concur.




       9
         As we vacate five of Cherry’s convictions and the trial court will be resentencing Cherry for his four
       remaining convictions, we need not address the appropriateness of the seventy-three-year sentence imposed
       for Cherry’s nine convictions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2120 | June 21, 2019                 Page 18 of 18
