Montrail Williams v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any
    Dec 17 2015, 8:19 am
    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
    Donald R. Shuler                                        Gregory F. Zoeller
    Barkes, Kolbus, Rife & Shuler, LLP                      Attorney General of Indiana
    Goshen, Indiana
    Michael Gene Worden
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Montrail Williams,                                      December 17, 2015
    Appellant-Defendant,                                    Court of Appeals Case No.
    20A04-1505-CR-406
    v.                                              Appeal from the Elkhart Circuit
    Court
    State of Indiana,                                       The Honorable Terry C.
    Appellee-Plaintiff.                                     Shewmaker, Judge
    Trial Court Cause No.
    20C01-1311-FB-132
    Bradford, Judge.
    Case Summary
    Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015         Page 1 of 24
    [1]   Appellant-Defendant Montrail Williams, together with four other individuals,
    planned a burglary, which they completed on the morning of November 4,
    2013. During the commission of the burglary, Williams and his cohorts entered
    the victims’ residence, forced two of the victims to kneel on the ground at
    gunpoint, tied another to a chair, and took property belonging to the victims.
    Williams was subsequently convicted of Class C felony robbery, Class B felony
    burglary, Class C felony criminal confinement, Class B felony conspiracy to
    commit burglary, and Class B felony possession of a firearm by a serious violent
    felon. He was sentenced to an aggregate term of sixty-eight years, with fifty-five
    years executed and thirteen years suspended to probation.
    [2]   On appeal, Williams contends that the evidence is insufficient to sustain his
    convictions, that his convictions for burglary and conspiracy to commit
    burglary violate the prohibitions against double jeopardy, and that his sentence
    is inappropriate. We affirm.
    Facts and Procedural History
    [3]   In November of 2013, Cynthia Contreras lived in a mobile home in Goshen
    with her husband, Jose; her daughter, Brenda Fernandez; and her daughter-in-
    law, Thaly Silvestre. Three minor children also lived in the mobile home.
    [4]   On the morning of November 4, 2013, Contreras’s husband left for work at
    approximately 5:20. After Contreras’s husband left for work, Williams,
    Antoine McDuffie, Davon Crenshaw, and Armando Gonzalez, Jr. acted on an
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    agreement to break into the mobile home. Upon breaking into the mobile
    home, the men concealed their identities by wearing “hoodie[s]”, masks on
    their faces, and gloves on their hands. Tr. p. 361. They were armed with at
    least three guns and carried flashlights. At the time of the break-in, the mobile
    home was occupied by Contreras, Fernandez, and the three children. Silvestre,
    who was pregnant, arrived home during the break-in.
    [5]   The men forced Contreras and Fernandez to kneel down at gunpoint. The men
    asked Contreras for “gold and dope.” Tr. p. 362. When Contreras indicated
    that the women did not have any gold or dope the men got upset and told
    Contreras that they thought she was lying. At some point, the men tied up
    Silvestre, who was approximately seven months pregnant. The men also
    threatened to kill everyone in the trailer if anyone called the police. The
    women were all scared for their safety as well as the safety of the children.
    [6]   Upon leaving the mobile home, the men stole an X-Box gaming system, a few
    X-Box games, $350.00 from Contreras’s purse, and Contreras’s pain
    medication. Once certain the men were gone, Silvestre freed herself.
    Sometime later, the women called the police.
    [7]   Fernandez subsequently told the police that she thought she recognized the
    voice of one of the intruders as Gonzalez, the boyfriend of someone with whom
    she worked. Fernandez identified where her co-worker lived with Gonzalez.
    Fernandez also informed police that she had previously seen Gonzalez with
    Crenshaw.
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    [8]    When members of the Goshen Police Department arrived at the apartment
    identified by Fernandez, they encountered Williams, Crenshaw, and Matthew
    Allen. The police were eventually allowed inside the apartment and, after
    receiving a search warrant, recovered the X-Box gaming system, the X-Box
    games, and a pill bottle containing pills. Officers also recovered two bags
    containing a bandana, gloves, dark clothing, a ski mask, and three loaded
    handguns. Williams’s DNA was subsequently recovered from the ski mask.
    [9]    Police later encountered McDuffie, who was carrying a flashlight and whose
    shoes matched the shoe pattern found at the crime scene. When questioned
    about the robbery, McDuffie stated, “Man, I just drove.” Tr. p. 159. McDuffie
    indicated to the investigating officer that he, Crenshaw, Williams, and
    Gonzalez planned and committed the burglary and robbery. Gonzalez
    subsequently admitted to participating in the burglary and robbery.
    [10]   In addition, at trial, Allen testified that he and the other men had been “hanging
    out” at Gonzalez’s apartment drinking and smoking marijuana on the night
    before the crime was committed. Tr. p. 838. Allen further testified that while
    drinking and smoking marijuana, he had heard Gonzalez, McDuffie, and the
    other men talk about breaking into and robbing a home. Allen also observed
    the men passing around three handguns. Allen later observed the men dress in
    dark jackets and hooded sweatshirts and leave the apartment at approximately
    4:30 a.m. on November 4, 2013.
    Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015   Page 4 of 24
    [11]   On November 12, 2013, Appellee-Plaintiff the State of Indiana (the “State”)
    charged Williams with Count I, Class B felony robbery while armed with a
    deadly weapon; Count II, Class B felony burglary; Count III, Class B felony
    criminal confinement; Count IV, Class B felony conspiracy to commit burglary;
    and Count V, Class B felony unlawful possession of a firearm by a serious
    violent felon. Williams’s jury trial began on February 2, 2015, after which the
    jury found Williams guilty of Counts I through IV. Williams waived his right
    to a jury trial on Count V. On March 2, 2015, the trial court found Williams
    guilty of Count V.
    [12]   On April 16, 2015, Williams filed a petition asking the trial court to reconsider
    its guilty finding on Count V. The trial court subsequently denied Williams’s
    petition. The trial court also entered an amended judgment, reducing
    Williams’s convictions in Counts I and III from Class B felonies to Class C
    felonies. The amended judgment reflected that Williams was convicted of
    Count I, Class C felony robbery; Count II, Class B felony burglary; Count III,
    Class C felony Criminal Confinement; Count IV, Class B felony conspiracy to
    commit burglary; and Count V, Class B felony unlawful possession of a firearm
    by a serious violent offender.
    [13]   In sentencing Williams, the trial court found the following mitigating factors:
    Williams’s age, the statements made by Williams and Williams’s counsel, and
    Williams’s good conduct during the course of the trial in relation to one of
    Williams’s co-defendants. The trial court also found the following aggravating
    factors: Williams’s criminal history; the unsuccessful nature of prior attempts to
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    rehabilitate Williams; the fact that there were multiple crimes committed by
    multiple perpetrators against multiple victims, one of the victims was pregnant,
    and three of the victims were children; and Williams is considered a high risk to
    reoffend. Finding that the aggravating factors outweighed the mitigating
    factors, the trial court imposed the following sentence: Count I, eight years,
    with seven years executed and one year suspended to probation; Count II,
    twenty years, with sixteen years executed and four years suspended to
    probation; Count III, eight years, with seven years executed and one year
    suspended to probation; Count IV, twenty years, with sixteen years executed
    and four years suspended to probation; and Count V, twenty years, with sixteen
    years executed and four years suspended to probation. The trial court ordered
    that the sentences for each count should run consecutively for an aggregate
    sentence of sixty-eight years, with fifty-five years executed and thirteen years
    suspended to probation. The trial court also ordered that Williams’s sentence
    in the instant matter should be served consecutively to Williams’s sentence in
    Cause Number 20D02-1010-FB-25, for which Williams had been on probation
    when he committed the underlying offenses. This appeal follows.
    Discussion and Decision
    I. Sufficiency of the Evidence
    [14]   Williams contends that the evidence is insufficient to sustain his convictions for
    robbery, burglary, criminal confinement, conspiracy to commit burglary, and
    unlawful possession of a firearm by a serious violent felon.
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    When reviewing the sufficiency of the evidence to support a
    conviction, appellate courts must consider only the probative
    evidence and reasonable inferences supporting the verdict. It is
    the fact-finder’s role, not that of appellate courts, to assess
    witness credibility and weigh the evidence to determine whether
    it is sufficient to support a conviction. To preserve this structure,
    when appellate courts are confronted with conflicting evidence,
    they must consider it most favorably to the trial court’s ruling.
    Appellate courts affirm the conviction unless no reasonable fact-
    finder could find the elements of the crime proven beyond a
    reasonable doubt. It is therefore not necessary that the evidence
    overcome every reasonable hypothesis of innocence. The
    evidence is sufficient if an inference may reasonably be drawn
    from it to support the verdict.
    Drane v. State, 
    867 N.E.2d 144
    , 146-47 (Ind. 2007) (citations, emphasis, and
    quotations omitted). “In essence, we assess only whether the verdict could be
    reached based on reasonable inferences that may be drawn from the evidence
    presented.” Baker v. State, 
    968 N.E.2d 227
    , 229 (Ind. 2012) (emphasis in
    original). Upon review, appellate courts do not reweigh the evidence or assess
    the credibility of the witnesses, Stewart v. State, 
    768 N.E.2d 433
    , 435 (Ind. 2002),
    as the jury, acting as the trier-of-fact, is “‘free to believe whomever they wish.’”
    Klaff v. State, 
    884 N.E.2d 272
    , 274 (Ind. Ct. App. 2008) (quoting McClendon v.
    State, 
    671 N.E.2d 486
    , 488 (Ind. Ct. App. 1996)).
    [15]   “[A] conviction may be based purely on circumstantial evidence.” Hayes v.
    State, 
    876 N.E.2d 373
    , 375 (Ind. Ct. App. 2007) (citing Moore v. State, 
    652 N.E.2d 53
    , 55 (Ind. 1995)), trans. denied. “‘On appeal, the circumstantial
    evidence need not overcome every reasonable hypothesis of innocence.’” 
    Id.
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    (quoting Moore, 652 N.E.2d at 55). “It is enough if an inference reasonably
    tending to support the conviction can be drawn from the circumstantial
    evidence.” Id. (citing Moore, 652 N.E.2d at 55). Thus, where circumstantial
    evidence is used to establish guilt, “‘the question for the reviewing court is
    whether reasonable minds could reach the inferences drawn by the jury; if so,
    there is sufficient evidence.’” Klaff, 
    884 N.E.2d at 274-75
     (quoting Maxwell v.
    State, 
    731 N.E.2d 459
    , 462 (Ind. Ct. App. 2000)).
    [16]   Further, Indiana Code section 35-41-2-4 provides that “[a] person who
    knowingly or intentionally aids, induces, or causes another to commit an
    offense commits that offense” himself.
    In determining whether there was sufficient evidence for
    purposes of accomplice liability, we consider such factors as: 1)
    presence at the scene of the crime; 2) companionship with
    another at the scene of the crime; 3) failure to oppose
    commission of the crime; and 4) course of conduct before,
    during, and after occurrence of the crime. [ ] A defendant’s mere
    presence at the crime scene, or lack of opposition to a crime,
    standing alone, is insufficient to establish accomplice liability.
    Tobar v. State, 
    740 N.E.2d 109
    , 112 (Ind. 2000). Flight shows
    consciousness of guilt. State v. Torphy, 
    217 Ind. 383
    , 387-88, 
    28 N.E.2d 70
    , 72 (1940).
    These factors may be considered in conjunction with a
    defendant’s course of conduct before, during, and after the crime,
    and a defendant’s companionship with the one who commits the
    crime. 
    Id.
     Furthermore, accomplice liability applies to the
    contemplated offense and all acts that are a probable and natural
    consequence of the concerted action. Wieland v. State, 
    736 N.E.2d 1198
    , 1202 (Ind. 2000). Moreover, an accomplice is
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    equally culpable as the one who commits the actual crime. Hauk
    v. State, 
    729 N.E.2d 994
    , 998 (Ind. 2000).
    Tuggle v. State, 
    9 N.E.3d 726
    , 736 (Ind. Ct. App. 2014), trans. denied. It is not
    necessary for Williams to have participated in every element of the crime under
    a theory of accomplice liability. 
    Id.
     (citing Bruno v. State, 
    774 N.E.2d 880
    , 882
    (Ind. 2002)).
    A. Robbery
    [17]   In November of 2013, Indiana Code section 35-42-5-1 provided as follows: “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.” Thus, in order to convict Williams of robbery, the State was required
    to prove that Williams knowing or intentionally took property from the victims
    by threating the use of force or by putting the victims in fear.
    [18]   In arguing that the evidence is insufficient to sustain his robbery conviction,
    Williams claims that because none of the victims identified him as one of the
    perpetrators, the State failed to prove his involvement in the robbery beyond a
    reasonable doubt, but instead only proved that there was a possibility that he
    participated in the robbery. We disagree.
    [19]   Allen testified that on the night before the robbery, he was “hanging out” with
    Gonzalez, Williams, Crenshaw, and McDuffie and heard the men discussing a
    plan to break into and rob a home. Tr. p. 838. Allen also testified that he
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    observed the men passing around three handguns and that he later observed
    Gonzalez, Williams, Crenshaw, and McDuffie dress in dark jackets and
    hooded sweatshirts before leaving the apartment at approximately 4:30 a.m. on
    November 4, 2013.
    [20]   The State presented evidence that the perpetrators were armed with at least
    three loaded handguns, wore dark clothing, and covered their faces with masks
    during the commission of the crimes. The perpetrators forced two of the
    victims to kneel at gunpoint and tied another to a chair. They put the victims in
    fear for their safety as they threatened to come back and kill everyone if anyone
    called the cops. Upon leaving the residence, the perpetrators took an X-Box
    gaming system, a few X-Box games, $350.00 from Contreras’s purse, and
    Contreras’s pain medication. Williams’s DNA was subsequently recovered
    from a black ski mask which was recovered from Gonzalez’s apartment with
    the stolen property and other dark clothing. When, during the course of their
    investigation, police arrived at the apartment, Williams was present and was
    playing games on the stolen X-Box gaming system. One of the victims
    informed police that she recognized one of the perpetrators as Gonzalez.
    [21]   The above-stated evidence is sufficient to prove that Williams participated in
    the robbery. The State presented both circumstantial evidence and DNA
    evidence to prove Williams’s participation. Upon review, we conclude that the
    DNA evidence considered with Williams’s actions prior to the crime; his
    actions after the commission of the crime; and his companionship, both before
    and after commission of the robbery, with individuals who admitted to
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    committing the crime is sufficient to prove that Williams was an active
    participant in the commission of the robbery. Furthermore, even if the evidence
    were to be found to fall short of proving that Williams was an active participant
    in the commission of the robbery, Williams can nonetheless be held culpable
    because the evidence, at the very least, proves that he was an accomplice to the
    commission of the robbery. See Tuggle, 9 N.E.3d at 736.
    B. Burglary
    [22]   In November of 2013, Indiana Code section 35-43-2-1 provided as follows: “A
    person who breaks and enters the building or structure of another person, with
    intent to commit a felony in it, commits burglary, a Class C felony. However,
    the offense is: (1) a Class B felony if: (A) it is committed while armed with a
    deadly weapon or (B) the building or structure is a: (i) dwelling; or (ii) structure
    used for religious worship[.]” Thus, in order to convict Williams of burglary,
    the State was required to prove that Williams broke into the building of another
    with the intent to commit a felony, i.e., robbery, therein and that Williams was
    either armed with a deadly weapon, i.e., a handgun, or that the building was a
    dwelling.
    [23]   In arguing that the evidence is insufficient to sustain his burglary conviction,
    Williams again claims that because none of the victims identified him as one of
    the perpetrators, the State failed to prove his involvement in the burglary
    beyond a reasonable doubt, but instead only proved that there was a possibility
    that he participated in the burglary. Again, we disagree. For the same reasons
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    discussed above, we conclude that the evidence presented at trial is sufficient to
    sustain Williams’s burglary conviction.
    C. Criminal Confinement
    [24]   In November of 2013, Indiana Code section 35-42-3-3 provided as follows:
    (a) A person who knowingly or intentionally:
    (1) confines another person without the other
    person’s consent
    ****
    commits criminal confinement.…
    (b) The offense of criminal confinement defined in subsection (a)
    is:
    (1) a Class C felony if:
    (A) the person confined or removed is
    less than fourteen (14) years of age and
    is not the confining or removing
    person’s child;
    (B) it is committed by using a vehicle; or
    (C) it results in bodily injury to a person
    other than the confining or removing
    person; and
    (2) a Class B felony if it:
    (A) is committed while armed with a
    deadly weapon[.]
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    Although the jury found Williams guilty of Class B felony criminal
    confinement, the trial court entered a judgment of conviction for Class C felony
    criminal confinement. In order to prove that Williams committed criminal
    confinement as a Class C felony, the State was required to prove that Williams
    knowingly or intentionally confined a person under the age of fourteen without
    the other person’s consent and that the person confined was not Williams’s
    child.
    [25]   In arguing that the evidence is insufficient to sustain his conviction for criminal
    confinement, Williams again claims that because none of the victims identified
    him as one of the perpetrators, the State failed to prove his involvement in the
    confinement beyond a reasonable doubt, but instead only proved that there was
    a possibility that he participated in the confinement. Again, we disagree.
    [26]   The State presented evidence that three of the victims were children under the
    age of fourteen. Nothing in the record suggests that any of the children had any
    relation to Williams. Thus, for the same reasons discussed above, we conclude
    that the evidence presented at trial is sufficient to sustain Williams’s conviction
    for criminal confinement.
    D. Conspiracy to Commit Burglary
    [27]   In November of 2013, Indiana Code section 35-41-5-2 provided that “A person
    conspires to commit a felony when, with intent to commit the felony, he agrees
    with another person to commit the felony. A conspiracy to commit a felony is
    a felony of the same class as the underlying felony.” Indiana Code section 35-
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    41-5-2 further provided that “The state must allege and prove that either the
    person or the person with whom he agreed performed an overt act in
    furtherance of the agreement.” Here, the State alleged that Williams conspired
    to commit Class B felony burglary. As such, the State was required to prove
    that Williams agreed to commit the crime of burglary, as is defined above, and
    that Williams committed an overt act in furtherance of the agreement.
    [28]   In arguing that the evidence is insufficient to sustain his conviction for
    conspiracy to commit burglary, Williams claims that the State failed to present
    evidence of any agreement to commit the burglary or an overt act committed by
    Williams in furtherance of the agreement. We disagree.
    [29]   The State alleged that Williams committed the overt act of masking his face.
    The recovery of Williams’s DNA recovered from the ski mask found with the
    other dark clothing and some of the property taken from the victims is evidence
    that Williams did, in fact, commit the overt act of masking his face. The State
    also presented evidence that the men came up with the plan, i.e., the agreement,
    to commit the burglary on the night before they committed it. Thus, for the
    same reasons discussed above, we conclude that the evidence presented at trial
    is sufficient to sustain Williams’s conviction for conspiracy to commit burglary.
    E. Possession of a Firearm by a Serious Violent Felon
    [30]   In November of 2013, Indiana Code section 35-47-4-5(c) provides that “A
    serious violent felon who knowingly or intentionally possesses a firearm
    commits unlawful possession of a firearm by a serious violent felon.” Indiana
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    Code section 37-47-4-5(a) defined a “serious violent felon” as one who has been
    convicted of committing a serious violent felony or attempting to commit a
    serious violent felony in either Indiana or any other jurisdiction “in which the
    elements of the crime for which the conviction was entered are substantially
    similar to the elements of a serious violent felony.” Thus, in order to prove that
    Williams committed possession of a firearm by a serious violent felon, the State
    was required to prove that Williams possessed a firearm after having been
    convicted of committing a serious violent felony.
    [31]   Williams does not contest the fact that he has previously been convicted of a
    serious violent felony. Instead, in arguing that the evidence is insufficient to
    sustain his conviction for criminal confinement, Williams again claims that
    because none of the victims identified him as one of the perpetrators, the State
    failed to prove his involvement in the break-in beyond a reasonable doubt.
    Williams alternatively argues that because there were five alleged perpetrators
    but only three alleged firearms, the State presented nothing more than
    speculation as to which of the men possessed the firearms. We disagree.
    [32]   The State presented evidence that the men were in possession of three handguns
    on the night before the commission of the burglary. The victims testified to
    observing at least three handguns during the commission of the crime. Three
    handguns matching the descriptions of these guns were recovered from the
    perpetrators and Gonzalez’s apartment after the commission of the crime.
    Further, Gonzalez told investing officers that he was not armed during the
    robbery, and McDuffie told investigating officers that he “just drove.” Tr. p.
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    1059. These statements support the inference that of the five alleged
    perpetrators, Williams was one of the three who were armed with a handgun.
    [33]   Again, because a conviction may be based purely on circumstantial evidence,
    the jury, acting as the trier of fact, is free to believe the witnesses as it sees fit,
    and we, acting as the reviewing court, will not reweigh the evidence or assess
    the credibility of the witnesses, we conclude that the evidence is sufficient to
    sustain Williams’s conviction for possession of a firearm by a serious violent
    felon. See Stewart, 768 N.E.2d at 435; Klaff, 
    884 N.E.2d at 274
    ; Hayes, 
    876 N.E.2d at 375
    .
    II. Double Jeopardy
    [34]   Williams also contends that his convictions for Class B felony burglary and
    Class B felony conspiracy to commit burglary violate Indiana’s prohibitions
    against double jeopardy. “Whether convictions violate double jeopardy is a
    pure question of law, which we review de novo.” Ellis v. State, 
    29 N.E.3d 792
    ,
    797 (Ind. Ct. App. 2015), trans. denied. Article 1, Section 14 of the Indiana
    Constitution prohibits double jeopardy, providing that “[n]o person shall be put
    in jeopardy twice for the same offense.” “In Richardson v. State, 
    717 N.E.2d 32
    ,
    49 (Ind. 1999), our supreme court held that two or more offenses are the ‘same
    offense’ in violation of Article 1, 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
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    establish the essential elements of another challenged offense.” James v. State,
    
    953 N.E.2d 1191
    , 1194 (Ind. Ct. App. 2011).
    [35]   In the instant matter, Williams makes no claim under the statutory elements
    portion of the Richardson test. Instead, he claims that his convictions constitute
    double jeopardy under the “actual evidence” portion.
    Under the actual evidence test, we examine the actual evidence
    presented at trial in order to determine whether each challenged
    offense was established by separate and distinct facts.
    [Richardson, 717 N.E.2d at 53]. To find a double jeopardy
    violation under this test, we must conclude that there is “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. The actual evidence test is applied to all
    the elements of both offenses. “In other words ... the Indiana
    Double Jeopardy Clause is not violated when the evidentiary
    facts establishing the essential elements of one offense also
    establish only one or even several, but not all, of the essential
    elements of a second offense.” Spivey v. State, 
    761 N.E.2d 831
    ,
    833 (Ind. 2002).
    Our precedents “instruct that a ‘reasonable possibility’ that the
    jury used the same facts to reach two convictions requires
    substantially more than a logical possibility.” Lee v. State, 
    892 N.E.2d 1231
    , 1236 (Ind. 2008) (citing cases). The reasonable
    possibility standard “fairly implements the protections of the
    Indiana Double Jeopardy Clause and also permits convictions for
    multiple offenses committed in a protracted criminal episode
    when the case is prosecuted in a manner that insures that
    multiple guilty verdicts are not based on the same evidentiary
    facts.” Richardson, 717 N.E.2d at 53 n. 46. The existence of a
    “‘reasonable possibility’ turns on a practical assessment of
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    whether the [fact finder] may have latched on to exactly the same
    facts for both convictions.” Lee, 892 N.E.2d at 1236. We
    evaluate the evidence from the jury’s perspective and may
    consider the charging information, jury instructions, and
    arguments of counsel. Id. at 1234.
    Garrett v. State, 
    992 N.E.2d 710
    , 719-20 (Ind. 2013) (brackets in original).
    [36]   Again, Williams argues on appeal that his convictions for burglary and
    conspiracy to commit burglary violate the actual evidence test set forth in
    Richardson. In making this argument, Williams acknowledges that the jury
    instruction for the conspiracy charge directs the jury to consider the masking of
    faces as the overt act in furtherance of the conspiracy. Williams argues,
    however, that “[b]y tying the conspiracy to commit burglary charge to the act of
    masking, once the jury concluded that [Williams] had participated in the
    burglary, it had no choice but to also find him guilty of the conspiracy to
    commit burglary charge.” Appellant’s Br. p. 19. Thus, Williams asserts that
    “[t]his results in a reasonable possibility that the jury relied on the same facts for
    both the burglary and conspiracy to commit burglary convictions, because the
    conspiracy to commit burglary offense cannot be established without
    considering the facts of the burglary itself.” Appellant’s Br. p. 19.
    [37]   We disagree and observe that the Indiana Supreme Court has held that “a
    defendant may be convicted of both conspiracy to commit a felony and
    commission of the underlying felony.” Johnson v. State, 
    749 N.E.2d 1103
    , 1108
    (Ind. 2001) (citing Griffin v. State, 
    717 N.E.2d 73
    , 89 (Ind. 1999), cert. denied). A
    double jeopardy violation occurs only where the same evidence used to prove
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    the overt act committed in furtherance of the conspiracy also proves the
    commission of the underlying crime. 
    Id.
     (citing Turnley v. State, 
    725 N.E.2d 87
    ,
    91 (Ind. 2000); Griffin, 717 N.E.2d at 89), emphasis added.
    [38]   Here, both the charging information and jury instructions specified that the
    overt act used to prove the conspiracy charge was the masking of faces. The
    charging information relating to the burglary charge reads as follows:
    The undersigned affiant swears that on or about the 4th day of
    November, 2013, at the County of Elkhart, State of Indiana,
    [Williams], [Allen], [McDuffie], [Crenshaw], and [Gonzalez],
    and they and each of them, did break and enter the dwelling of
    another person, to wit: Brenda Fernandez, with the intent to
    commit a felony therein, to wit: Theft, that is to knowingly or
    intentionally exert unauthorized control over property of another
    person with the intent to deprive the other person of any part of
    its value or use; all of which is contrary to the form of I.C. § 35-
    43-2-1(1)(B)(i) & § 35-41-2-4; contrary to the form of the statute
    in such cases made and provided; and, against the peace and
    dignity of the State of Indiana.
    Appellant’s App. p. 16. The charging information relating to the conspiracy to
    commit burglary charge reads as follows:
    The undersigned affiant swears that on or about the 4th day of
    November, 2013, at the County of Elkhart, State of Indiana, one
    [Williams] did, with the intent to commit a felony, agree with
    other persons, to wit: [Crenshaw], [Allen], [McDuffie], and
    [Gonzalez], to commit the felony Burglary, defined in I.C. § 35-
    43-2-1(1), as to break and enter the dwelling of another person
    with intent to commit a felony therein, and did engage in
    conduct constituting an overt act toward said Burglary by
    masking their faces; all of which is contrary to the form of I.C. §
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    35-41-5-2(a) & § 35-43-2-1(1)(B)(i); contrary to the form of the
    statute in such cases made and provided; and, against the peace
    and dignity of the State of Indiana.
    Appellant’s App. p. 16. The final jury instructions also reflected that the overt
    act relied on by the State to prove the conspiracy charge was Williams’s act of
    masking his face. As such, the record demonstrates that the conspiracy to
    commit robbery was alleged to have been consummated when Williams
    masked his face and the robbery was alleged to have taken place when Williams
    and his cohorts took property belonging to the victims from the victims’ home.
    The evidence relating to the masking of faces was separate evidence of that
    proffered to prove the burglary charge itself.
    [39]   We find the facts of the instant matter to be similar to the facts presented in our
    opinion in James v. State, 
    953 N.E.2d 1191
     (Ind. Ct. App. 2011). In James, we
    concluded that the defendant’s convictions for burglary and conspiracy to
    commit burglary did not violate the actual evidence test of the Indiana
    prohibitions against double jeopardy because the conspiracy was alleged to
    have been consummated when the defendant covered his face and the robbery
    charge was alleged to have taken place when the defendant and his cohorts took
    property from the victims’ home. Id. at 1194-95. We also find that this case is
    easily distinguishable from the Indiana Supreme Court’s decision in Johnson. In
    Johnson, neither the charging information nor the final jury instructions
    contained any mention of what overt acts the State relied upon in proving the
    conspiracy charge. 749 N.E.2d at 1109. The Indiana Supreme Court found
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    that in that case, there was a reasonable possibility that the evidence proving
    conspiracy to commit burglary also established the essential elements of the
    burglary charge. Id.
    [40]   Similar to our conclusion in James, we conclude in the instant matter that there
    is not a reasonable possibility that the jury relied on all of the same evidence in
    finding Williams guilty of both burglary and conspiracy to commit burglary.
    The record clearly demonstrates that the State relied upon evidence proving that
    Williams masked his face to prove that he committed the overt act necessary to
    prove the conspiracy charge. This evidence was not necessary to prove any
    element of the burglary charge. As such, we conclude that Williams’s
    convictions for both Class B felony burglary and Class B felony conspiracy to
    commit burglary do not violate the prohibitions against double jeopardy.
    III. Appropriateness of Sentence
    [41]   Again, the trial court sentenced Williams to an aggregate term of sixty-eight
    years, with fifty-five years executed and 13 years suspended to probation.
    Williams contends on appeal that his sentence is inappropriate in light of the
    nature of his offenses and his character. Indiana Appellate Rule 7(B) provides
    that “The Court may revise a sentence authorized by statute if, after due
    consideration of the trial court’s decision, the Court finds that the sentence is
    inappropriate in light of the nature of the offense and the character of the
    offender.” In analyzing such claims, we “‘concentrate less on comparing the
    facts of [the case at issue] to others, whether real or hypothetical, and more on
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    focusing on the nature, extent, and depravity of the offense for which the
    defendant is being sentenced, and what it reveals about the defendant’s
    character.’” Paul v. State, 
    888 N.E.2d 818
    , 825 (Ind. Ct. App. 2008) (quoting
    Brown v. State, 
    760 N.E.2d 243
    , 247 (Ind. Ct. App. 2002), trans. denied). The
    defendant bears the burden of persuading us that his sentence is inappropriate.
    Sanchez v. State, 
    891 N.E.2d 174
    , 176 (Ind. Ct. App. 2008).
    [42]   With respect to the nature of Williams’s offenses, the record demonstrates that
    Williams and the other men burgled the residence of Contreras and her family.
    While in the residence, the men ordered Contreras and Fernandez to the
    ground at gunpoint and tied Silvestre, who was approximately seven months
    pregnant, to a chair. Children were present in the residence at the time of the
    burglary and theft. The men took an X-Box gaming system, some X-Box
    games, cash, and prescription medication from the residence. The men also
    threatened to come back and kill everyone in the trailer if anyone called the
    police.    The men’s actions placed Contreras, Fernandez, and Silvestre in fear
    for their own safety, as well as the safety of the children present in the
    residence. The records demonstrate that Williams participated in a very serious
    and violent course of events.
    [43]   Further, we disagree with Williams’s assertion that the record indicates that he
    is of good character. Rather, we find that Williams is of troubling character.
    Review of the record indicates that since 2007, Williams has amassed a rather
    extensive criminal history which includes juvenile adjudications and both
    misdemeanor and felony convictions. As a juvenile, Williams was adjudicated
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    to be delinquent for committing what would have the following offenses if
    committed by an adult: Class A misdemeanor criminal mischief, Class A
    misdemeanor battery, Class A misdemeanor resisting law enforcement, Class D
    felony theft, and Class B felony burglary. William’s adult criminal history
    includes a prior conviction for misdemeanor operating a motor vehicle without
    ever receiving a license and two prior convictions for Class B felony burglary.
    It is also of note that Williams was on probation for his two prior adult
    convictions for Class B felony burglary when he committed the instant offenses.
    Williams’s criminal history, which appears to be escalating in seriousness,
    indicates that he has repeatedly engaged in criminal behavior. In addition,
    Williams’s failure to effectuate any positive change on his behavior as a result
    of his repeated interactions with the criminal justice system indicates an
    unwillingness by Williams to reform his behavior to conform to the rules of
    society.
    [44]   In light of the facts surrounding the nature of Williams’s offenses and his
    character, we conclude that Williams has failed to meet his burden of
    persuading us that his aggregate sixty-eight-year sentence, of which thirteen
    years were suspended to probation, is inappropriate.
    Conclusion
    [45]   In sum, we conclude that the evidence is sufficient to sustain Williams’s
    convictions, Williams’s convictions for burglary and conspiracy to commit
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    burglary do not violate the prohibitions against double jeopardy, and Williams’s
    sentence is not inappropriate.
    [46]   The judgment of the trial court is affirmed.
    Baker, J., and Pyle, J., concur.
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