Talon L. Roper v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Jul 27 2016, 5:41 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Talon L. Roper, July 27, 2016
Appellant-Defendant, Court of Appeals Case No.
02A04-1601-CR-110
v. Appeal from the Allen Superior
Court.
The Honorable Frances C. Gull,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 02D05-1505-F2-9
Garrard, Senior Judge
[1] Following a bench trial, Talon Roper was found guilty of robbery as a Level 2
1
felony. The trial court also found beyond a reasonable doubt that Roper used a
1
Ind. Code § 35-42-5-1 (2014).
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2
firearm when he committed the robbery. The sole issue Roper raises on
appeal, as restated, is whether his sentence enhancement for committing
robbery resulting in serious bodily injury by use of a firearm violated double
jeopardy. We affirm.
[2] On April 27, 2015, the victim, Bacilio Garcia, left work early due to illness and
returned to his home in Fort Wayne, Indiana, sometime between 8:00 a.m. and
9:30 a.m. While Garcia stood on the back patio smoking a cigarette, he
observed Roper pulling on the door handles of the cars parked on the street.
When Roper pulled on the door handle of a car belonging to Garcia’s neighbor,
Garcia called to Roper and told him to “get away from that vehicle, [sic] I
know it’s not your property.” Tr. p. 14. Roper replied, “What the [expletive]
are you going to do about it.” Id. at p. 15. Garcia, with his cell phone in hand,
made a gesture indicating Roper should leave the car alone.
[3] Roper brandished a handgun and fired twice at Garcia – walking closer to
Garcia between shots. Both shots missed Garcia. Roper fired the gun a third
time and a bullet struck Garcia in the abdomen. Garcia collapsed on the porch.
While Garcia lay on the porch wounded, Roper walked to Garcia, grabbed
Garcia’s cell phone from his hand, and jogged away.
2
See Ind. Code § 35-50-2-11 (2014).
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[4] Garcia managed to crawl inside his house. He called to his mother-in-law, who
was asleep on the couch, and told her he had been shot. Garcia’s mother-in-
law called 911.
[5] Police officers from the Fort Wayne Police Department and medics arrived at
Garcia’s house. Garcia told the officers what happened to him and provided a
description of the person who shot him. While Garcia was tended to medically,
the police officers began looking for the individual Garcia had described. One
of the officers observed an individual walking near the scene of the shooting
who matched the description provided by Garcia. The individual later was
identified as Roper. When Roper saw the officer, he began to run away. The
officer pursued Roper and watched him walk into a backyard of a house and
“throw a black object.” Id. at 53.
[6] The officer eventually ordered Roper to stop; Roper complied; and, the officer
placed Roper in handcuffs. Roper was patted down and Garcia’s cell phone
was found in his pocket. The handgun used to shoot Garcia was found in the
yard where Roper had discarded it.
[7] When Garcia arrived at the hospital, he underwent the first of three surgeries
due to the seriousness of his injuries. His wounds were repaired and he
eventually was released from the hospital. The bullet could not be removed
surgically and remains lodged in Garcia’s hip.
[8] Roper was arrested and charged with Level 2 felony robbery and Level 3 felony
aggravated battery. The State filed an amended information, seeking a
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sentencing enhancement based on Roper’s use of a firearm in the commission
of the robbery. Roper waived his right to a jury trial and his trial was heard by
the court. At the conclusion of the trial, the court found Roper guilty as
charged. The court sentenced Roper to twenty years for Level 2 felony robbery,
and enhanced the sentence by ten years due to Roper’s use of a firearm – for an
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aggregate sentence of thirty years executed. Roper appeals.
[9] Roper contends he was subjected to double jeopardy when his sentence for
robbery resulting in serious bodily injury was enhanced because he used a
firearm to commit the offense. According to Roper, “either the ‘single larceny
rule’, the ‘continuous crime doctrine’, the ‘statutory evidence test’, or the
‘actual evidence test’ operate[s] as a double jeopardy bar against [his]
conviction and/or sentencing for [Level 2 felony robbery and the sentencing
enhancement.]” Appellant’s Br. p. 9.
[10] The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person
shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.
Our supreme court concluded that two or more offenses are the same offense in
violation of article 1, section 14 if, with respect to either the statutory elements
of the challenged crimes or the actual evidence used to obtain convictions, the
essential elements of one challenged offense also establish the essential elements
of another challenged offense. See Garrett v. State, 992 N.E.2d 710, 719 (Ind.
3
The court vacated the Level 3 aggravated battery count on double jeopardy grounds.
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2013) (citing Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)). Sentencing
enhancements are not offenses for double jeopardy purposes. Cooper v. State,
940 N.E.2d 1210, 1215 (Ind. Ct. App. 2011), trans. denied. “[T]he Firearm
Enhancement Statute [, Ind. Code § 35-50-2-11,] only prescribes an additional
penalty for felonies that are committed with the use of a firearm.” Id.
Statutory Evidence Test
[11] Roper maintains his conviction of Level 2 felony robbery and the sentencing
enhancement for his use of a firearm violate the statutory elements test. Roper
contends the essential statutory elements alleged in the robbery and the
sentencing enhancement counts are “virtually identical.” Appellant’s Br. p. 18.
As such, his convictions and sentencing on both counts constitute a double
jeopardy violation. We disagree. Sentencing enhancements are not offenses for
double jeopardy purposes. See Cooper, 940 N.E.2d at 1215. Roper’s double
jeopardy claim on the basis of the statutory evidence test fails.
Actual Evidence Test
[12] Roper argues his conviction of robbery resulting in bodily injury and the
enhancement for use of the firearm violate the actual evidence test. “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.” Garrett, 992 N.E.2d at 719. 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
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one offense may also have been used to establish the essential elements of a
second challenged offense.’” Id. (quoting Richardson, 717 N.E.2d at 53).
Roper’s double jeopardy argument on the basis of the actual evidence test fails
for the same reason his statutory evidence test claim failed. Sentencing
enhancements are not offenses for double jeopardy purposes. See Cooper, 940
N.E.2d at 1215.
Single Larceny Rule/ Continuous Crime Doctrine
[13] Roper contends his convictions and sentence for both Level 2 felony robbery
and the sentencing enhancement violated the single larceny rule and the
continuous crime doctrine. According to Roper, because the confrontation
between him and Garcia took place over a short period of time and in a
localized area, only one chargeable crime was committed for which only one
sentence is appropriate. We agree with Roper’s premise but do not reach the
same conclusion.
[14] The single larceny rule has historically provided that “when several articles of
property are taken at the same time, from the same place, belonging to the same
person or to several persons there is but a single ‘larceny’, i.e. a single offense.”
Raines v. State, 514 N.E.2d 298, 300 (Ind. 1987). “The rationale behind this rule
is that the taking of several articles at the same time from the same place is
pursuant to a single intent and design.” Id. (citation omitted). “If only one
offense is committed, there may be but one judgment and one sentence.” Id.
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[15] The continuous crime doctrine is a rule of statutory construction and common
law limited to situations where a defendant has been charged multiple times
with the same offense. Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015). The
doctrine “applies only where a defendant has been charged multiple times with
the same ‘continuous’ offense.” Id. at 1220.
[16] The only offense Roper committed was robbery resulting in serious bodily
injury. He took only one item from Garcia, that is, Garcia’s cell phone. Roper
was charged and convicted of one count of Level 2 felony robbery and one
count of sentencing enhancement due to his use of a firearm when he
committed the robbery. Roper did not take multiple items when he committed
robbery, and he was not convicted of multiple charges of robbery or sentencing
enhancement. Neither the single larceny rule nor the continuous crime doctrine
applies under these circumstances.
Ind. Code § 35-50-2-11
[17] Roper next attempts to rely on subsection (i) of Indiana Code section 35-50-2-11
4
(2015) to support a claim of double jeopardy. Indiana Code section 35-50-2-11
provides in relevant part:
4
Roper’s offense was committed on April 27, 2015. Indiana Code section 35-50-2-11 was amended,
effective July 1, 2015, to include (among other things) subsection (i). Roper asks this court to apply the
amended statute to his case under the doctrine of amelioration. The doctrine of amelioration is an
exception to the general rule that the sentence in effect at the time a crime is committed is the proper
penalty. Richards v. State, 681 N.E.2d 208, 213 (Ind. 1997). The doctrine entitles defendants who are
sentenced after the effective date of a statute providing for a more lenient sentence to be sentenced
pursuant to that statute, as opposed to the statute in effect at the time the crime was committed. Id.
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(d) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed
an offense sentenced to an additional fixed term of imprisonment
if the state can show beyond a reasonable doubt that the person
knowingly or intentionally used a firearm in the commission of
the offense.
...
(g) If the . . . court (if the hearing is to the court alone) finds that
the state has proved beyond a reasonable doubt that the person
knowingly or intentionally used a firearm in the commission of
the offense under subsection (d), the court may sentence the
person to an additional fixed term of imprisonment of between
five (5) years and twenty (20) years.
...
(i) A person may not be sentenced under subsection[ ] (g) . . . for
offenses, felonies, and misdemeanors comprising a single episode
of criminal conduct.
[18] We find Roper’s argument inapposite because he was not convicted of multiple
charges.
[19] For the reasons stated above, the judgment of the trial court is affirmed.
[20] Affirmed.
[21] Vaidik, C.J., and Barnes, J., concur.
We decline to determine whether the doctrine applies here, as we find Roper’s claim of double
jeopardy under Ind. Code § 35-50-2-11(i) inapposite.
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