Steven James Burns, II. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 04 2017, 9:17 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven James Burns, II, August 4, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1701-CR-7
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1608-F2-23
Baker, Judge.
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[1] Steven Burns appeals his convictions for Level 2 Felony Burglary While Armed
With a Deadly Weapon 1 and Level 4 Felony Serious Violent Felon in
Possession of a Firearm,2 arguing that his convictions violate Indiana’s
prohibition against double jeopardy under the state constitution and under
common law. Finding no error, we affirm.
Facts
[2] Around 11 p.m. on August 18, 2016, Burns and his brother Joseph Burns were
at Adam Smith’s house in Lafayette. Burns, Joseph, and Smith planned to
burglarize Jerry Mathews. Around midnight, Mackenzie Sanders picked up the
three men and drove them to an area near a bar on Fourth Street. Burns exited
the vehicle, went to the back of another vehicle, where he received two
firearms, and returned to Sanders’s vehicle. Sanders then took Burns, Joseph,
and Smith to a street near the home of Jerry and Linda Mathews. The three
men walked to the Mathewses’ home. They covered the lower half of their
faces with bandanas. Burns pulled the two firearms from underneath his
sweatshirt and handed one to Joseph and kept one for himself. Burns saw that
a window was open, and the three men entered the house through it.
[3] Jerry and Linda Mathews were asleep in their bedroom when the men woke
them up around 1:30 a.m. Burns pointed his gun at Jerry’s face, demanded that
1
Ind. Code § 35-43-2-1.
2
Ind. Code § 35-47-4-5.
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Jerry give him his money, and threatened to kill him. Burns struck Jerry in the
head with his gun, and Jerry fell and began bleeding. Burns then took Jerry
into the living room and continued demanding money and threatening Jerry’s
life. Jerry gave Burns his wallet, and Burns took several rings and watches from
the couple. Burns then returned Jerry to the bedroom and told him to stay there
while again threatening his life. The three men then left the house.
[4] On August 24, 2016, the State charged Burns with Level 2 felony conspiracy to
commit burglary, Level 2 felony burglary while armed with a deadly weapon,
two counts of Level 3 felony criminal confinement while armed with a deadly
weapon, Level 3 felony robbery while armed with a deadly weapon, Level 3
felony robbery resulting in bodily injury, two counts of Level 5 felony
intimidation drawing or using a deadly weapon, Level 5 felony battery with a
deadly weapon, Level 4 felony serious violent felon in possession of a firearm,
Level 6 felony pointing a firearm, Class A misdemeanor theft, Class A
misdemeanor carrying a handgun without a license, an unlawful use of a
firearm enhancement, and a habitual offender enhancement. A jury trial took
place on October 31 and November 1-4, 2016. The jury found Burns guilty of
all charges except Level 5 felony battery with a deadly weapon.
[5] Sentencing took place on November 29, 2016. After merging a number of
offenses because of double jeopardy concerns, the remaining convictions for
which Burns was sentenced and the sentences the trial court imposed were:
• Thirty years for Level 2 felony conspiracy to commit burglary while
armed with a deadly weapon;
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• Thirty years for Level 2 felony burglary while armed with a deadly
weapon;
• Two and one-half years for each of two convictions for Level 6 felony
criminal confinement;
• Sixteen years for Level 3 felony robbery resulting in bodily injury;
• Eight years for Level 4 felony serious violent felon in possession of a
firearm; and
• Sixteen years for the habitual offender enhancement.
The trial court ordered Burns’s sentence for conspiracy to commit burglary and
burglary to run concurrently; his sentences for criminal confinement to run
consecutively to each other but concurrently with his sentence for robbery; his
sentence for robbery to run consecutively to his sentence for burglary; his
sentence for serious violent felon in possession of a firearm to run consecutively
to his sentence for burglary; and his habitual offender enhancement to enhance
his burglary sentence. In sum, the trial court sentenced Burns to an aggregate
term of seventy years. Burns now appeals.
Discussion and Decision
I. Double Jeopardy Under the Indiana Constitution
[6] Burns argues that his convictions and sentences for Level 2 felony burglary
while armed with a deadly weapon and Level 4 serious violent felon in
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possession of a firearm violate Indiana’s prohibition against double jeopardy
under the state constitution.3
[7] Article 1, Section 14 of the Indiana Constitution provides that “[n]o person
shall be put in jeopardy twice for the same offense.” Two or more offenses are
the same offense in violation of this section “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.” Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999). Double jeopardy is violated when “a defendant’s
conviction for one crime is enhanced for . . . causing particular additional
harm” because that “harm cannot also be used as an enhancement of a separate
crime.” Id. at 56 (Sullivan, J., concurring). When two convictions are found to
violate 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.” Richardson, 717 N.E.2d at 54. Whether
multiple convictions violate double jeopardy is a question of law, which this
Court reviews de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App.
2012).
[8] Burns argues that these convictions violate the actual evidence test, pursuant to
which “the actual evidence presented at trial is examined to determine whether
3
Burns does not make a double jeopardy argument under the federal constitution.
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each challenged offense was established by separate and distinct facts.” Id. “To
show that two challenged offenses constitute the ‘same offense’ in a claim of
double jeopardy, a defendant must demonstrate 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. To determine what facts were used, we
consider the evidence, charging information, final jury instructions, and
arguments of counsel. Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App.
2005).
[9] Here, the record shows that Sanders drove Burns, Joseph, and Smith to an area
near a bar on Fourth Street, where Burns obtained two firearms. Later that
same night, Burns gave his brother one of the firearms and kept one for himself.
The three men then broke into the Mathewses’ home; Burns used his firearm
during the burglary to threaten and strike Jerry Mathews.
[10] The charging information for carrying a handgun without a license4 alleged:
On or about August 19, 2016, in Tippecanoe County, State of
Indiana, Steven James Burns II did knowingly or intentionally
carry a handgun in a vehicle or on or about his body without
being licensed under Indiana Code 35-47-2 to carry a handgun.
4
The trial court merged Burns’s conviction for Class A misdemeanor carrying a handgun without a license
into his conviction for Level 4 felony serious violent felon in possession of a firearm.
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Appellant’s App. Vol. II p. 26. The final jury instruction set out the following
for carrying a handgun without a license:
On or about August 19, 2016, in Tippecanoe County, State of
Indiana, Steven James Burns II did knowingly or intentionally
carry a handgun in a vehicle or on or about his body without
being licensed under Indiana Code 35-47-2 to carry a handgun.
Id. at 159. The State made the following comments during its closing argument
of the first phase of the jury trial regarding whether it had proved the required
elements of carrying a handgun without a license:
You heard testimony from [Smith] that [Burns] had a gun with
him when the group arrived at [the Mathewses’ residence].
Linda and Jerry also both testified that the man in the red mask
displayed a firearm. Now, the next element is being away from
the Defendant’s dwelling, property, or fixed place of business. . . .
Steven Burns is not a resident [of the Mathewses’ residence]. . . .
[B]ased on review of police records, Steven Burns does not have
a license under Indiana law to carry a handgun. Therefore, the
Defendant is guilty [of carrying a handgun without a license].
Tr. Vol. IV p. 85-86. The closing argument by the State indicates that, in
proving this charge, the State primarily relied on the fact that Burns possessed a
firearm before committing the burglary. This is significant because the State
used this conviction to help prove that Burns was a serious violent felon in
possession of a firearm.
[11] The charging information for serious violent felon in possession of a firearm
alleged:
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On or about August 19, 2016, in Tippecanoe County, State of
Indiana, Steven James Burns II did knowingly or intentionally
possess a firearm, to wit: a handgun(s), having been convicted of
committing attempting to commit, or conspiring to commit a
serious violent felony.
Appellant’s App. Vol. II p. 27. The final jury instruction set out the
following:
On or about August 19, 2016, in Tippecanoe County, State of
Indiana, Steven James Burns II did knowingly or intentionally
possess a firearm, to wit: a handgun(s), having been convicted of
committing, attempting to commit, or conspiring to commit a
felony enumerated in IC 35-47-4-5.
Id. at 231. In the third phase of the trial, by which time the jury had already
found Burns guilty as charged for carrying a handgun without a license, the
State argued in closing that:
Now, you’ve already evaluated elements 1, 2, and 3 for this
offense and so, all that is left for you to do is evaluate the certified
prior conviction records for the Robbery, the prior Robbery
offense.
Tr. Vol. IV p. 201. The closing argument by the State indicates that it was
relying on Burns’s conviction for carrying a handgun without a license—for
which it primarily relied on the fact that Burns possessed a handgun before the
burglary—to prove one element of the serious violent felon in possession of a
firearm charge. Indeed, the crime of serious violent felon in possession of a
firearm was complete before Burns broke into the Mathewses’ house because
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Burns had two firearms in his possession before committing the crime of
burglary.
[12] With respect to the conviction for burglary while armed with a deadly weapon,
the charging information alleged:
On or about August 19, 2016, in Tippecanoe County, State of
Indiana, Joseph Ira Burns, Steven James Burns II, and Adam
Lane Smith did break and enter the building or structure of
another person, to: wit: Jerry Mathews and Linda Mathews,
with the intent to commit a felony or theft in it, to wit: Robbery
and/or Theft, committed while armed with a deadly weapon, to
wit: a handgun(s).
Appellant’s App. Vol. II p. 16. The final jury instruction set out the following
elements for burglary with a deadly weapon:
On or about August 19, 2016, in Tippecanoe County, State of
Indiana, Steven James Burns II did break and enter the building
or structure of another person, to: wit: Jerry Mathews and Linda
Mathews, with the intent to commit a felony or theft in it, to wit:
Robbery and/or Theft, committed while armed with a deadly
weapon, to wit: a handgun(s).
Id. at 157. In closing, the State argued to the jury about each piece of evidence
supporting each element of burglary before stating that “the offense was
committed while armed with a deadly weapon, that being the handgun that
Steven Burns had pointed at Jerry Mathews[’] head.” Tr. Vol. IV p. 92-93. For
this conviction, the State relied on the fact that Burns possessed a firearm during
the burglary.
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[13] The charging information, final jury instructions, and especially the State’s
closing arguments for these three charges show that the jury relied on the facts
that Burns possessed two firearms before the burglary and one during the
burglary to convict him of both serious violent felon in possession of a firearm
and burglary while armed with a deadly weapon without overlap in the
evidence. In short, Burns did not meet his burden of showing a reasonable
possibility that the jury used the same possession of a firearm to convict Burns
of both charges. Accordingly, we do not find a constitutional double jeopardy
violation.
II. Common Law Double Jeopardy
[14] Burns also argues that the same convictions violate Indiana’s prohibition
against double jeopardy under common law.
[15] In addition to our constitution, Indiana common law also protects against
double jeopardy, and “[e]ven where no constitutional violation has occurred,
multiple convictions may nevertheless violate the ‘rules of statutory
construction and common law that are often described as double jeopardy, but
are not governed by the constitutional test set forth in Richardson.’” Vandergriff
v. State, 812 N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting Pierce v. State, 761
N.E.2d 826, 830 (Ind. 2002)). Five additional categories of double jeopardy
exist: (1) conviction and punishment for an enhancement of a crime where the
enhancement is imposed for the very same behavior or harm as another crime
for which the defendant had been convicted and punished; (2) conviction and
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punishment for a crime which is a lesser-included offense of another crime for
which the defendant has been convicted and punished; (3) conviction and
punishment for a crime which consists of the very same act as another crime for
which the defendant has been convicted and punished; (4) conviction and
punishment for a crime which consists of the very same act as an element of
another crime for which the defendant had been convicted and punished; and
(5) conviction and punishment for the crime of conspiracy where the overt act
that constitutes an element of the conspiracy charge is the very same act as
another crime for which the defendant had been convicted and punished.
Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002).
[16] At issue here is the first category in which conviction and punishment for an
enhancement of a crime where the enhancement is imposed for the very same
behavior or harm as another crime for which the defendant had been convicted
and punished. The record shows that Burns possessed two firearms before the
burglary and one during the burglary. Here, the record shows that Sanders
drove Burns, Joseph, and Smith to an area near a bar on Fourth Street, where
Burns obtained two firearms. Later that same night, Burns gave his brother one
of the firearms and kept one for himself. The three men then broke into the
Mathewses’ home; Burns used his firearm during the burglary to threaten and
strike Jerry Mathews. Accordingly, Burns was guilty of the crime of serious
violent felon in possession of a firearm before he broke into the Mathewses’
house because he possessed two firearms before the three men arrived at the
house, and he possessed one while they committed the burglary. In short,
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Burns was not punished for mere possession of a firearm twice; he was
punished for being a previously convicted felon in possession of a firearm and
then convicted for using that firearm to commit a violent offense. See Mickens v.
State, 742 N.E.2d 927, 930 (Ind. 2001) (“Carrying the gun along the street was
one crime and using it was another”). Burns’s argument based on common law
double jeopardy is unavailing.
[17] The judgment of the trial court is affirmed.
Kirsch, J., and Mathias, J., concur.
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