Kenneth F. Kipp v. State of Indiana ( 2013 )

Sep 17 2013, 5:34 am
Pursuant to Ind. Appellate Rule 65(D), 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:
GILDA W. CAVINESS GREGORY F. ZOELLER
Caviness Law Office, LLC Attorney General of Indiana
Rushville, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH F. KIPP, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1211-CR-507
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack A. Tandy, Judge
Cause No. 73D01-0807-FA-10
September 17, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
After a night of victimizing three families in their own homes, appellant-defendant
Kenneth F. Kipp was convicted of Burglary,1 a class A felony; Armed Robbery,2 a class B
felony; two counts of Burglary,3 a class B felony; Attempted Carjacking,4 a class B
felony; two counts of Battery with a Deadly Weapon, 5 a class C felony; Attempted
Robbery,6 a class C felony; two counts of Theft,7 a class D felony; Resisting Law
Enforcement,8 a class D felony; and for being a Habitual Offender.9 Kipp now appeals
raising numerous arguments, including that the trial court erred by denying his two
motions for a mistrial, the photographic line-up was unnecessarily suggestive, the
charging information for three counts was deficient, the evidence was insufficient to
support three of his convictions, and his convictions on Counts I through V, which
involved the burglary, armed robbery, and battery of a family on their own property,
violated Indiana’s Double Jeopardy Clause. Finding no error and sufficient evidence, we
affirm.
1
Ind. Code § 35-43-2-1.
2
Ind. Code § 35-42-5-1.
3
I.C. § 35-43-2-1.
4
I.C. § 35-42-5-2; Ind. Code § 35-41-5-1.
5
I.C. § 35-42-2-1.
6
I.C. § 35-42-5-1; I.C. § 35-41-5-1.
7
I.C. § 35-43-4-2.
8
I.C. § 35-44-3-3.
9
Ind. Code § 35-50-2-8.
2
FACTS
On July 7, 2008, Anthony and Saundra Saba were at home with their daughter in
Fountaintown when they heard a loud noise. They searched around their house for the
source of the noise, but after finding nothing, they looked out the window to discover that
their barn doors were open and the light located on the side of the barn was on. This was
unusual because the Sabas kept their barn door closed and did not use the side light.
Anthony went outside to close the barn door, taking a golf club with him. Once
outside, Anthony was approached by a man who the Sabas would later identify as Kipp.
Kipp was carrying what Anthony believed was a gun but was later identified as an air
drill. Kipp told Anthony to put down the golf club, or he would shoot him. Anthony
explained, “[y]ou don’t need to do this” and tried to get his wife to go back inside. Tr. p.
226. Anthony kept his golf club raised while backing up towards the open garage, and
when he turned around to check on Saundra, Kipp struck him with the air drill. Anthony
fell to the ground, and Kipp kept striking and kicking him, until everything “was kind of
a blur.” Id. at 227. When Saundra saw Kipp beating Anthony, she grabbed a broom and
struck Kipp with it; however, Kipp got the broom away from Saundra and hit her with it,
knocking her against the garage.
The Sabas continued to battle Kipp near the entrance of the garage for a few
minutes, and told their daughter to go inside and call 911. The struggle at the entrance of
the garage continued and every time the Sabas tried to close the automatic garage door,
the struggle between the two men triggered the sensor system on the door causing it raise.
3
During the struggle, Kipp injured Anthony and Saundra, resulting in bruising to
Saundra’s arm and injuries to Anthony’s face, a blood clot, and chest pains. Anthony and
Saundra saw Kipp’s face during the struggle and would later identify him both in and out
of court. When the Sabas were able to return to the safety of their house, Saundra called
911, and Kipp left on a motorcycle.
Indiana State Police Corporal Dennis Scudder responded to the dispatch. The
Sabas described Kipp’s route, and Corporal Scudder found Kipp on the motorcycle in the
area. The motorcycle matched the description provided to Corporal Scudder, who then
followed Kipp and attempted to initiate a stop. Kipp, however, refused to cooperate and
continued to drive and eventually pulled into a driveway and then into a field. Corporal
Scudder followed, making contact with the back of Kipp’s motorcycle to end the pursuit.
Kipp abandoned his motorcycle and ran towards the road. Corporal Scudder
followed on foot for about 150 to 200 feet before pulling his hamstring muscle. Corporal
Scudder then called for backup, describing Kipp’s location, and other police officers
responded. Shortly after calling for backup, Corporal Scudder learned that Kathy Davis,
another resident living on or near Michigan Road, had reported a home entry and based
on the report, Corporal Scudder concluded that it was the same perpetrator.
Kathy Davis lived with her husband, Phillip, and their daughter, near the scene of
the chase in Shelby County. Kathy’s daughter told her that the kitchen door had opened
on its own so Kathy retrieved her shotgun, loaded it, and went into the kitchen. Inside the
kitchen, she found Kipp and noticed his tattoos. Kathy immediately demanded, “Hey you
4
ol’ mother f**ker, what do you want?” Tr. p. 389. Kipp immediately ran from the Davis
house.
Not one to easily back down, Kathy decided to follow Kipp to her neighbor’s
house, thinking that he had fled in that direction. When Kathy went to her truck, she
noticed that a number of items were out of place inside. Kathy proceeded to her
neighbor, Max Stillabower’s house, where police officers were recovering evidence left
from their earlier pursuit of Kipp. Davis announced to the police that she had “just
chased some tall drink of water out of [her] house.” Tr. p. 391. She described Kipp as
wearing no shirt, which was consistent with what other witnesses had reported about
Kipp that night.
Davis returned home and another officer believed he spotted Kipp at the home of
Mohammad and Cynthia Khaliq. Mohammad and Cindy were home on the night of July
7, 2008, with their son in Fountaintown. Cindy called to her husband to come to the
kitchen when a strange man walked into the house. The man had a shirt wrapped around
his hand, holding what appeared to be a gun but was later determined to be a sprinkler
head.
Cindy’s mother, who was just a few doors down, knocked on the door and came
into the home during the intrusion. The man asked for the car keys and cash, so
Mohammad, who was trained in law enforcement, walked him outside toward
Mohammad’s vehicle, but the man became upset upon seeing police cars drive by. While
Mohammad and the man were outside, Cindy’s mother locked the door, but the man
5
kicked it in and went back inside. Shortly thereafter, Cindy along with her son and her
mother, left the house through the back. Mohammad also left the house and retrieved his
gun from his vehicle but was told to put it down before he made it back to the house.
During the investigation, police officers recovered from the Khaliq’s yard the tire
tool that was missing from Kathy’s truck. Police officers also found evidence on
Stillabowers’s property that had been left during the earlier pursuit of Kipp, namely, his
bandana and other property belonging to the Sabas such as their key fob.
Police officers and the Indiana State Police Lab would eventually match Kipp’s
fingerprints and DNA with samples taken from the evidence discovered at the crime
scenes, including samples taken from the bandana, the broom, and the vehicles owned by
the victims. Detective Roger Clark developed two leads, one of which turned out to be a
dead end when a caller identified a person named Niles Duncan. When Cindy Khaliq and
Saundra Saba viewed a photo array that included Niles Duncan but did not include Kipp,
Saundra identified Tyler Slage, who had nothing to do with the crimes. Cindy did not
identify anyone.
Detective Clark was dispatched to investigate on July 7, 2008, and when the
suspect was not apprehended that night, his investigation continued. Detective Clark first
learned of Kipp from Debra Collins, who had hired Kipp to do some work on her home.
Collins recognized Kipp’s motorcycle. Kipp worked for Collins from July 2, 2008,
through July 8, 2008, and she would pick him up at a gas station each day. However,
Kipp told Collins that he would ride his motorcycle to work on July 8, 2008. On that
6
day, Kipp appeared on the job without his motorcycle, explaining that he had been pulled
over in Indianapolis after having a few beers the night before. After Collins saw the
news reports about the burglaries in the neighborhood, she became suspicious and fired
Kipp.
An arrest warrant was issued for Kipp, and he turned himself in to law
enforcement officials in Louisville, Kentucky. Detective Clark drove to Louisville and
transported Kipp back to Indiana. Detective Clark, with the assistance of law
enforcement in Kentucky, prepared a second photographic line-up consisting of six
photographs. The photographic line-up was presented to the Sabas, Davis, and the
Khaliqs. The Khaliqs selected Kipp from the line-up as did Anthony and Saundra.
Detective Clark also took a sample of Kipp’s DNA which matched DNA found on
the bandana, the broom, and the Kaliqis’ van. In addition, Detective Clark took Kipp’s
fingerprints and compared them to fingerprints taken from Davis’s truck; they were a
match.
On October 1, 2008, the State filed its second amended information10 charging
Kipp with Count I, burglary resulting in serious bodily injury, a class A felony; Count II,
armed robbery, a class B felony; Count III, theft, a class D felony; Count IV, battery with
a deadly weapon, a class C felony; Count V, battery with a deadly weapon, a class C
felony; Count VI, resisting law enforcement, a class D felony; Count VII, burglary, a
class B felony; Count VIII theft, a class D felony; Count IX, burglary, a class B felony;
10
The State filed its initial information on July 15, 2008, and its first amended information on July 31,
2008.
7
Count X, attempted robbery, a class C felony; and Count XI, attempted carjacking, a
class B felony.11
Kipp’s jury trial commenced on October 2, 2012, and concluded on October 4,
2012. During trial, Kipp moved twice for a mistrial. The first time occurred when
Corporal Scudder testified that the motorcycle that Kipp was riding was stolen. The
second time occurred when Mohammed testified that Kipp’s tattoos were the type that
one would get in jail. Both motions were denied.
Over Kipp’s objection that the photographic line-up was unduly suggestive, the
trial court admitted Detective Clark’s testimony regarding the photographic line-up and
witness identifications of Kipp. Pertaining to the charging information, when the trial
court asked if there were any objections, Kipp stated, “No.” Tr. p. 6.
The jury found Kipp guilty as charged, and Kipp admitted to being a habitual
offender. On October 26, 2012, the trial court held a sentencing hearing during which it
ordered that Count III merge with Count II and sentenced Kipp to an aggregate term of
110 years imprisonment. Kipp now appeals.
DISCUSSION AND DECISION
I. Motion for Mistrial
A. Standard of Review
Kipp argues that the trial court erred by denying his motions for a mistrial. As
stated above, Kipp moved for a mistrial twice. The first motion was made after Corporal
11
It does not appear that Kipp was alleged as being a habitual offender at this point in the proceedings.
8
Scudder testified that the motorcycle that Kipp was riding was stolen, and the second
motion was made after Mohammed testified that Kipp’s tattoos were the type that one
would get in jail.
The decision to grant or deny a motion for mistrial lies within the sound discretion
of the trial court. Pavey v. State, 764 N.E.2d 692, 698 (Ind. Ct. App. 2002). “The trial
court’s decision is afforded great deference on appeal because the trial court is in the best
position to gauge the surrounding circumstances of the event and its impact on the jury.”
Id. An abuse of discretion occurs when the trial court’s decision is against the logic and
effect of the facts before it. Weis v. State, 825 N.E.2d 896, 900 (Ind. Ct. App. 2005).
The granting of a mistrial is an extreme remedy that is warranted only when a less
severe alternative cannot satisfactorily correct the error. Banks v. State, 761 N.E.2d 403,
405 (Ind. 2002). When appealing a motion for a mistrial, a defendant must prove that the
conduct in question “was so prejudicial and inflammatory that he was placed in a position
of grave peril to which he should not have been subjected.” Mickens v. State, 742
N.E.2d 927, 929 (Ind. 2001). The significance of the danger is determined by the
probable and persuasive effect on the jury’s decision. Mote v. State, 775 N.E.2d 687,
689 (Ind. Ct. App. 2002).
B. The Motorcycle
Regarding the first instance when Kipp requested a mistrial, Corporal Scudder
testified: “I realized I couldn’t catch him on foot at that point and I was concerned that
9
he might double back, so I went back to secure my vehicle and also the stolen veh . . . or
the motorcycle.” Tr. p. 349.
When defense counsel approached the bench for a side bar conference and
explained that Corporal Scudder had just referred to the motorcycle as stolen, which was
not in evidence, the trial court responded, “I think he, he mistakenly said that. I assume
there’s not [sic] evidence to that [e]ffect.” Id. at 350. The prosecutor explained to the
trial court that the motorcycle had been stolen; however, it appears that the individual
from whom that information was obtained had not testified. Accordingly, the defense
counsel moved for a mistrial based on irrelevance and because the proper individual had
not testified. Id. at 350-51.
In this instance, we cannot say that the trial court erred. More particularly, during
the side bar conference, the trial court expressed its belief that Corporal Scudder had
simply misspoke. The jury could have easily thought the same thing. Indeed, defense
counsel chose not to request an admonishment or a limiting instruction, which would
only draw further attention to the statement. Thus, it was more desirable to permit the
jury to draw its own conclusions. Likewise, a mistrial was a remedy too extreme in these
circumstances insofar as Kipp was not placed in grave peril by testimony. Accordingly,
this argument fails.
C. Jail Tattoos
Kipp requested a mistrial the second time when Mohammed testified that Kipp
had “[j]ail-type” tattoos. Tr. p. 436. Kipp asserts that Mohammed’s reference to his
10
tattoos was even more egregious in light of the fact that he had lodged an objection but
Mohammed continued to respond to the question.
In this instance, although the trial court denied Kipp’s motion for a mistrial, it
granted his motion to strike Mohammed’s statement regarding the tattoos. Additionally,
Mohammed was admonished that when an objection is made while he is testifying, he is
to “just stop talking and then we’ll resolve the objection and go forward from there.” Tr.
p. 438. Thus, the trial court rectified the situation without resorting to the extreme
remedy of a mistrial.
As for the probable persuasive impact on the jury, the significance of the danger in
each instance was minimal at most. As will be discussed in more detail below, the jury
heard testimony from multiple witnesses identifying Kipp as the perpetrator of the
offenses. This renders the origins of his tattoos or whether his motorcycle was stolen
rather insignificant. Therefore, this argument also fails.
II. Photographic Line-up
Kipp contends that the photographic line-up was unnecessarily suggestive and
should have been excluded. Rulings on the admissibility of evidence are reviewed for an
abuse of discretion. Goens v. State, 943 N.E.2d 829, 831 (Ind. Ct. App. 2011). A trial
court abuses its discretion if its decision is clearly against the logic and effect of the facts
and circumstances before it. Id.The Due Process Clause of the Fourteenth Amendment to the United States
Constitution requires the suppression of testimony regarding pre-trial identification when
11
the procedure used is unduly suggestive. J.Y. v. State, 816 N.E.2d 909, 912 (Ind. Ct.
App. 2004). Without the suppression of testimony regarding pre-trial identification
where overly suggestive means were used, “the defendant is subjected to the
unacceptable risk that the identification process was conducted in such a way that it
created a substantial likelihood of irreparable misidentification.” Id.Whether the procedure used was unnecessarily suggestive is determined under the
totality of the circumstances. Id. Our Supreme Court has held that a photo array is not
impermissibly suggestive if the defendant “does not stand out so strikingly in his
characteristics that he virtually is alone with respect to identifying features.” Farrell v.
State, 622 N.E.2d 488, 494 (Ind. 1993).
The factors to consider when evaluating the likelihood of a misidentification are:
(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the
witness’s degree of attention; (3) the accuracy of the witness’s prior description of the
criminal; and (4) the level of certainty demonstrated by the witness. Parker v. State, 698
N.E.2d 737, 740 (Ind. 1998).
Here, the witnesses were in close proximity to Kipp. Specifically, the Sabas
physically struggled with Kipp outside of their home, at or near their garage door. Tr. p.
226-235, 301-310.
Mohammed was also close to Kipp as he tried to coax him into leaving his house.
Id. at 425. They spoke to each other in Mohammed’s kitchen.
12
Detective Clark did not intentionally try to select photographs of individuals
wearing different clothing. Tr. p. 589-98. And when Detective Clark presented the
witnesses with the photo line-up, he presented it to them separately and under the
instruction that they not converse about the experience with one another. Id. at 624-36.
Furthermore, the six individuals in the photo array had the same basic physical
characteristics while displaying some differences from each other. Id. at 594-98.
However, the differences are minor when compared with the significant similarities that
the individuals shared. Consequently, we cannot say that the photographic line-up was
unduly suggestive, and the trial court did not err by admitting testimony regarding
witness identification pertaining to it.
III. Deficient Charging Information
Kipp asserts that the charging information for burglary as alleged in Counts I, VII,
and IX is deficient. More particularly, Kipp argues that “it is not sufficient to merely
allege an intent to commit a felony without specifying the particular felony intended.”
Appellant’s Br. p. 11.
At the outset, the State maintains that Kipp has waived this argument because he
failed to challenge the charging information prior to trial. Any alleged defect in the
charging information should be addressed before trial to avoid waiver. Stroud v. State,
809 N.E.2d 274, 287 (Ind. 2004).
Here, Kipp did not file a motion before trial challenging the charging information.
Appellant’s App. p. 1-4. Furthermore, when the proceedings began, Kipp offered no
13
objection to the charging information even when specifically asked if he had any
objections to the amended charging information. Tr. p. 5-6. Accordingly, Kipp has
waived this argument.
Waiver notwithstanding, Kipp directs us to Reed v. State, 438 N.E.2d 704 (Ind.
1982). In Reed, our Supreme Court opined:
In a charge of burglary, it is not sufficient merely to allege an intent to
commit a felony without specifying the particular felony intended.
However, the particularities of the intended or “ulterior” felony need not be
charged. The critical aspect of a charge of burglary, in addition to the
breaking and entering is the intent with which the breaking and entering
were done. The information alleged the intent to commit a theft, and the
evidence clearly sustained a finding that such intent was present.
Id. at 706 (emphasis added) (internal citations omitted).
Additionally, in Stwalley v. State, the defendant had waived his argument that the
charging information was deficient because he had failed to raise the argument before
trial. 534 N.E.2d 229, 232 (Ind. 1989), abrogated on other grounds. Nevertheless, our
Supreme Court conducted a fundamental error analysis, concluding that “[w]hile the
intended felony was not specified in the information, the burglary count was
accompanied by the child molesting and rape charges.” Id. Furthermore,
“[c]ircumstantial and direct evidence showed that he broke and entered the home with the
intent to commit rape. Under these circumstances the harm to Stwalley caused by the
insufficient burglary information was not substantial.” Id. at 233.
The implication of our Supreme Court’s reasoning in Reed is that while the
ulterior felony need not be separately charged, it must be at least described in the
14
burglary charging information. Alternatively, the ulterior felony if separately charged
would also be sufficient. More directly, in Stwalley, because the burglary count was
accompanied by the ulterior felonies, the defendant failed to show fundamental error.
In this case, because Kipp failed to object to the charging information before trial,
he must show fundamental error. Stwalley, 534 N.E.2d at 232. And because the
charging informations also alleged that Kipp committed the ulterior felonies, Kipp has
failed to show fundamental error.
IV. Sufficiency of the Evidence
Kipp contends that there was insufficient evidence to support his convictions in
Count I, burglary resulting in bodily injury; Count II, armed robbery; and Count VII,
burglary. When reviewing the sufficiency of the evidence, this court will neither reweigh
the evidence nor judge the credibility of witnesses. Dillard v. State, 755 N.E.2d 1085,
1089 (Ind. 2001). It is the fact-finder who must determine whom to believe and what
portions of conflicting testimony to believe. In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App.
1999). This Court will reverse only if no rational finder of fact could have found the
defendant guilty. Hyppolite. v. State, 774 N.E.2d 584, 598 (Ind. Ct. App. 2002).
A. Count I – Burglary Resulting in Bodily Injury
To convict Kipp under Count I, the State was required to prove that Kipp
knowingly or intentionally broke and entered the Sabas’ barn while armed with a deadly
weapon with the intent to commit a felony therein, and that his crime resulted in bodily
injury. Appellant’s App. p. 68; Ind. Code § 35-43-2-1. Anthony testified that he looked
15
outside and saw that his barn door was unexpectedly open and the light was on. Tr. p.
232. Additionally, Anthony kept an old dresser to store his tool box. Anthony stated that
the dresser is “always all closed up. The only time it’s opened . . . like that is if I’m
looking in it for a nut or bolt or something that I need for a project and then I close it
back up.” Id. at 241-42. However, after Kipp left the Sabas’ barn on July 7, 2008, all of
the drawers were open. Id. This is sufficient to show that Kipp entered the Sabas’ barn
with intent to commit a felony therein, namely, theft.
As for bodily injury, Anthony testified that Kipp confronted him armed with an air
drill and kicked him in the face and head and he was “out.” Tr. p. 226-27. A few days
later, Anthony consulted a doctor to discover that he had a blood clot underneath his skin,
had severe chest pains and required triple bypass heart surgery. Id. at 232. This evidence
was sufficient to show bodily injury while armed with a deadly weapon under Count I.
Consequently, the State presented sufficient evidence to sustain Kipp’s conviction under
Count I.
B. Count II – Armed Robbery
To convict Kipp of Count II, the State was required to prove beyond a reasonable
doubt that while Kipp knowingly or intentionally took the Sabas’ key fob by using or
threatening to use force on any person and that he did so while armed with a deadly
weapon and/or it resulted in bodily injury to Saundra and/or Anthony. Appellant’s App.
p. 68; Ind. Code § 35-42-5-1.
16
As stated above, Anthony testified that Kipp was armed with the Sabas’ air drill
when they confronted him. Tr. p. 226. Furthermore, the fact-finder could reasonably
infer that Kipp took the Sabas’ key fob, which was later found at Stillabower’s house
along with Kipp’s bandana. Accordingly, the State presented sufficient evidence under
Count II.
Count VII – Burglary
To convict Kipp of burglary, the State had to prove beyond a reasonable doubt that
Kipp knowingly or intentionally broke and entered into a dwelling belonging to Kathy
Davis with intent to commit a felony therein. Appellant’s App. p. 69-70; I.C. § 35-43-2-
1. In this case, Davis, armed with her shotgun, encountered Kipp in her kitchen and
quickly scared him away. Tr. p. 389. Nonetheless, Davis noticed “a sunburst tattoo” and
identified the man as “six foot tall.” Id. at 387-88. Davis’s description of Kipp matched
his appearance. Appellant’s App. p. 236. Moreover, the property that was missing from
Davis’s truck was later found at the Khaliqs’ home. Tr. p. 393. Thus, a reasonable fact-
finder could have concluded that Kipp entered the Davis home with intent to commit a
felony therein, and Kipp’s sufficiency arguments fail.
V. Double Jeopardy
Finally, Kipp argues that double jeopardy violations occurred with respect to his
convictions for the offenses at the Saba residence. Kipp essentially contends that these
convictions arise from the same factual evidence.
17
Article I, Section 14 of the Indiana Constitution provides: “No person shall be put
in jeopardy twice for the same offense.” Under the actual evidence test, multiple
convictions constitute double jeopardy if 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.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999). Our Supreme Court has
stated that “the possibility must be reasonable, not speculative or remote.” Griffin v.
State, 717 N.E.2d 73, 89 (Ind. 1999).
Moreover, 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) (emphasis added). To determine which facts were
used by the jury, a reviewing court will examine the charging information, evidence,
arguments, and jury instructions. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002).
In his Reply Brief, Kipp asserts:
The State’s evidence for the burglary, robbery, theft, and battery boils down
to these facts: Kipp broke and entered the Saba barn, took a key fob and
coins from somewhere on the Saba property, and when confronted by the
Sabas, struck Anthony Saba with an air drill and struck Saundra Saba with
her broom.
Reply Br. p. 8.
At first blush, Kipp’s argument is convincing insofar as its simplicity seems to
indicate that perhaps the State elevated numerous offenses based on the same evidence.
18
However, a closer inspection of the Sabas’ testimony, the charging information, and the
detailed jury instructions reveal that the circumstances were not so simple.
To begin, a brief summary of the Sabas’ testimony is helpful. Anthony testified
that Kipp confronted him outside the barn with what appeared to be a gun, but was later
determined to be Anthony’s air drill, which was stored in the barn. Tr. p. 226-27, 229.
Kipp struck Anthony in the face with the air drill, knocking Anthony to the ground,
causing him injury. Kipp then proceeded to kick Anthony in the face and head, causing
him further injury. Id. at 227.
Saundra witnessed her husband being kicked, retrieved a heavy broom, and tried
to hit Kipp with the broom. Id. at 303. Saundra managed to strike Kipp several times,
but was never able to knock him down. Id. Kipp took the broom away from Saundra and
struck her hard with it, causing her injury. Id. at 307. The Sabas eventually made it back
into their home and called 911, and Kipp drove away on his motorcycle. Id. at 308-09.
The Sabas’ key fob was missing but was later found on a neighbor’s property along with
Kipp’s bandana.
Beginning with Count I, class A felony burglary, the charging information alleged
that “Kipp did knowingly or intentionally break and enter . . . the barn or Anthony and/or
Saundra Saba, with intent to commit a felony therein, FURTHER, said offense resulted in
bodily injury to Anthony and/or Saundra Saba . . . all while armed with a deadly weapon.
Appellant’s App. p. 68. Likewise, the jury instruction stated that for the jury to convict
19
Kipp for a Class A felony the offense had to result in bodily injury, and Kipp had to be
armed with a deadly weapon. Id. at 98.
Here, as stated above, Kipp was armed with an air drill. Although it was not a gun
as the Sabas first thought, no one contends that it is not a deadly weapon. As for the
bodily injury, both Anthony and Saundra testified that Kipp kicked Anthony multiple
times while Anthony was down and that Anthony sustained injuries from this. There is
nothing in the Indiana Code section 35-43-2-1, the charging information, or the jury
instruction that states that the bodily injury must result from the deadly weapon with
which the defendant is armed. See Toney v. State, 961 N.E.2d 57, 60 (Ind. Ct. App.
2012) (holding that evidence was sufficient to establish class A felony burglary resulting
in bodily injury where the victim experienced physical pain as the result of the
defendant’s action of grabbing her hand and twisting her phone out of her hand).
Moving forward to Count II, class B felony armed robbery, the charging
information stated Kipp knowingly or intentionally took the “change and/or key fob from
Anthony and/or Saundra Saba . . . all while armed with a deadly weapon, and/or which
resulted in bodily injury to Anthony and/or Saundra Saba.” Appellant’s App. p. 68.
Similarly, the jury was instructed that to convict Kipp of armed robbery, he had to
knowingly or intentionally take the Sabas’ property by using or threatening the use of
force and that for a class B felony, Kipp had to be armed with a deadly weapon or while
committing the robbery, bodily injury had to result to Anthony or Saundra. Id. at 101.
20
In this case, the Sabas’ key fob was missing after their traumatic ordeal with Kipp
and was later found with his bandana on their neighbor’s property. Additionally, Kipp
threatened Anthony and Saundra while armed with an air drill. And the fact that Kipp
was armed with the air drill to commit the burglary does not present a double jeopardy
violation. Indeed, our Supreme Court has opined that a “defendant’s use of the same
weapon in the commission of separate and distinct offenses [] does not present a violation
of the Indiana Double Jeopardy Clause.” Miller v. State, 790 N.E.2d 437, 439 (Ind.
2003).
Count III alleged that “Kipp did knowingly or intentionally exert unauthorized
control over the property of the [Sabas].” Appellant’s App. p. 68-69. This conviction is
easily resolved inasmuch as Kipp exerted unauthorized control over Anthony’s air drill,
which Anthony testified he kept in the barn.
Count IV and Count V can be resolved simultaneously. Count IV alleged that
Kipp “knowingly or intentionally touch[ed] Saundra Saba in rude, angry or insolent
matter, by means of a deadly weapon, to-wit: a broom, resulting in bodily injury.”
Appellant’s App. p. 69. Count V alleged that “Kipp did knowingly or intentionally touch
Anthony Saba in a rude, angry or insolent manner, by means of a deadly weapon,
resulting in bodily injury.” Id.In the instant case, Saundra testified that Kipp struck her hard with a broom
knocking her into the garage, causing bruising to her arm. And Anthony testified that
Kipp struck him in the head with the air drill, knocking him to the ground. Thus, Counts
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IV and V were supported by evidence not used in any of the previous convictions, and
there is no double jeopardy violation, and this argument fails.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.
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