Borum v. State

951 N.E.2d 619, 2011 Ind. App. LEXIS 1366, 2011 WL 3104680
CourtIndiana Court of Appeals
DecidedJuly 26, 2011
Docket49A02-1010-CR-1099
StatusPublished
Cited by11 cases

This text of 951 N.E.2d 619 (Borum v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borum v. State, 951 N.E.2d 619, 2011 Ind. App. LEXIS 1366, 2011 WL 3104680 (Ind. Ct. App. 2011).

Opinion

OPINION

BROWN, Judge.

Jamall Borum appeals his convictions and sentences for attempted carjacking as a class B felony 1 and attempted robbery as a class C felony. 2 Borum raises four issues which we consolidate and restate as:

I. Whether his convictions violate double jeopardy principles;
II. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender; and
III. Whether the abstract of judgment and judgment of conviction properly reflect Borum’s convictions.

We affirm and remand.

The relevant facts follow. On April 22, 2010, Charles Gibson, his girlfriend Jessica Henson, and Christopher Douglas drove the pickup truck of Douglas’s father from Douglas’s house in Indianapolis to a local Village Pantry convenience store to purchase ice. Upon arriving, Douglas and Gibson exited the truck to enter the store, and they left the truck’s engine running and Henson, who was sitting in the back seat, inside. Both men noticed Borum inside the store. While Gibson and Douglas were inside the store, Borum exited and Henson noticed him walk towards the *623 truck. Borum walked around the rear of the truck and then entered it from the driver’s side. Once inside, Borum started “looking around, pull[ed] the sun visor down, the middle, and asks [Henson] where, if [she] had any money, where the money was” while using “a threatening voice.” Transcript at 202. Borum demanded money from Henson “several times.” Id. Borum stated that he did not “want to hurt nobody but [he] will.” Id. at 203. Borum kept “fidgeting in his lap” which made Henson think that he had a weapon. Id. at 207. Henson informed Borum that she did not have any money. Borum started to “mess[ ] with the gas and he messed with the steering wheel but he did not shift it.” Id. at 203. Borum was “revving the engine” and “playing with” the gearshift and he told Henson that he would “take the truck” if he did not get any money. Id. at 204. Henson told Borum “to take the truck [and] to let [her] out,” but he “just kept looking around....” Id. at 205. Henson was “terrified” and was “shaking.” Id.

When Gibson and Douglas exited the store, Gibson heard the truck’s engine revving and, when he opened the passenger side door he saw Borum sitting in the driver’s seat. Gibson saw Borum “grabbing the gear shift and trying to yank it down.” Id. at 119. Gibson witnessed that Henson was “hysterical,” and she “grabbed [Gibson] and she wouldn’t let go....” Id. at 119, 121. Borum’s “eyes [] got really big and he started reaching for the door.” Id. at 121. Gibson reached for Borum and Borum “jumped out” of the truck. Id. at 122. Borum kept asking the two men in a forceful manner: “Where’s the money, where’s the money?” Id. Douglas told Borum that he did not have any money. Borum then started “throwing his hands around, you know, he was acting kind of weird....” Id. Borum walked towards Douglas and “put his hands down” and was “fidgeting around” which made Douglas think that Borum “might have a gun,” and Douglas backed up. Id. at 161. However, Borum then turned around and ran away down an alley. The three then drove back to Douglas’s house and called the police.

Indianapolis Metropolitan Police Officer Malachi West was dispatched to speak to the three victims and met them at Douglas’s house. Officer West observed that the victims were “upset” and “energized,” but after they started to calm down he spoke with them and they recited what had happened and gave a description of Borum. Id. at 39. Within about ten or twenty minutes, Officer West stopped Bo-rum based upon the description the victims had given, handcuffed him, and called for a robbery detective. Detective Mark Sullivan arrived at the scene and asked that the victims be brought there to identify Borum as their attacker, and they did indeed identify Borum. As the victims arrived, Borum looked at Douglas and said: “Pimp juice, you know that wasn’t me, Pimp Juice, you know that wasn’t me.” Id. at 166. Borum was arrested.

Borum was charged, as amended, with Count I, attempted carjacking as a class B felony, and Count II, attempted robbery as a class C felony. Also, on August 11, 2010, the State filed an information charging Borum as an habitual offender. September 2, 2010, the court held a jury trial in which Borum testified that he entered the truck after Henson asked him if he had any “weed,” and he replied that he did. Id. at 282. Borum explained that he had the weed in his pants and was asking for money because he “was trying to make a quick transaction.” Id. at 283. Borum also testified that when he was arrested he had weed on his person but that he “wasn’t charged with it.” Id. Afterwards, the State recalled Detective Sullivan to the *624 stand who testified that Borum did not have any marijuana or other contraband on him when he was arrested. The jury found Borum guilty as charged. Borum waived his right to a jury trial for the habitual offender phase, and the judge found Borum to be an habitual offender.

On September 13, 2010, the court held a sentencing hearing in which it noted that it did not “think that count two need[ed] to be vacated in this situation” because “it appears that [the jury] would have had to have used different facts.” Id. at 410. The court sentenced Borum to the advisory terms of ten years on Count I and four years on Count II to be served concurrently. The court also enhanced Count I by ten years, which was the minimum enhancement, based upon Borum’s adjudication as an habitual offender. Thus, Borum was ordered to serve an aggregate sentence of twenty years.

I.

The first issue is whether Borum’s convictions for attempted carjacking and attempted robbery violate Indiana’s prohibition against double jeopardy pursuant to: (A) the actual evidence test from Richardson v. State, 717 N.E.2d 32 (Ind.1999); (B) the single larceny rule; and (C) the continuous crime doctrine. We address each of Borum’s arguments separately.

A. The Actual Evidence Test

The Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” Ind. Const, art. 1, § 14. In Richardson v. State, the Indiana Supreme Court developed a two-part test for Indiana double jeopardy claims, holding that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or

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Cite This Page — Counsel Stack

Bluebook (online)
951 N.E.2d 619, 2011 Ind. App. LEXIS 1366, 2011 WL 3104680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borum-v-state-indctapp-2011.