MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 12 2017, 8:01 am
the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Jodi Kathryn Stein Logansport, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Spahr Brown, July 12, 2017 Appellant-Defendant, Court of Appeals Case No. 09A02-1610-CR-2385 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Richard Appellee-Plaintiff. Maughmer, Judge Trial Court Cause No. 09D02-1603-F2-6
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 1 of 20 Case Summary and Issues [1] Following a second jury trial, Christopher Brown was convicted of conspiracy
to commit robbery resulting in serious bodily injury and robbery resulting in
serious bodily injury, both Level 2 felonies. Brown was also found to be an
habitual offender. Brown now appeals, raising six issues for our review, which
we restate as 1) whether Brown was deprived of his right to counsel at a critical
stage in the proceedings, 2) whether the trial court committed fundamental
error in permitting the State to amend the charging information, 3) whether the
trial court erred in admitting identification evidence, 4) whether the trial court
erred in modifying the jury instructions during deliberations, 5) whether
Brown’s convictions violate Indiana’s prohibition against double jeopardy, and
6) whether the trial court’s sentencing order contains an error. We conclude
Brown was not deprived of his right to counsel at the initial hearing, the trial
court did not commit fundamental error in permitting the State to amend the
charging information, and the trial court did not err in admitting evidence. In
addition, even assuming the trial court erred in modifying the jury instructions,
Brown has not shown how the modification prejudiced him. However,
Brown’s convictions violate double jeopardy, in addition to which the trial
court’s sentencing order contains an error. For these reasons, we affirm in part,
reverse in part, and remand with instructions.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 2 of 20 [2] In early January 2015, Ashley Reinholt stayed for several days at a Super 8
Motel in Logansport, Indiana. Sanjay Amin, an employee and resident of the
Super 8, knew Reinholt. During this time, Amin observed Brown and his
cousin, Brandon Black, often visiting Reinholt.
[3] On January 17, 2015, Reinholt approached Amin offering sex in exchange for
money. The pair agreed Amin would meet Reinholt at the nearby Manor
Motel and pay Reinholt $300 for sex. Thereafter, Reinholt informed Brown of
the agreement and Brown suggested a plan to rob Amin once Amin arrived at
the Manor Motel. Brown then called Black and informed him of the plan. The
plan provided Reinholt would leave the motel room unlocked so Brown and
Black could access the room upon Amin’s arrival. Later that evening, Reinholt
and Amin met at the Super 8, Amin paid Reinholt $50 to pay for a room at the
Manor Motel, and the pair agreed to meet at the Manor Motel a few hours
later.
[4] At approximately 11:00 p.m., Amin observed Brown and Black pick up
Reinholt at the Super 8 and followed the trio to the Manor Motel. Reinholt
then rented a room and texted Amin and Brown the room number. Before
entering the room, Amin observed Brown and Black appearing to leave.
Thereafter, Amin entered the room with Reinholt and placed $300 on the
nightstand. Reinholt left the door unlocked. After Reinholt told Amin to take
all his clothes off, Brown and Black bolted into the room with masks covering
their faces. Amin recognized it was Brown and Black based on the clothing
they were wearing as it was the same clothing the pair had been wearing
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 3 of 20 previously. In addition, Amin also heard either Brown or Black say Reinholt’s
name. Brown then punched Amin, knocking out three of his teeth. Amin also
suffered injuries to his face and a laceration to his eye. Brown and Black then
left the room with the $300 from the nightstand and Amin’s wallet which
contained $500. Bleeding profusely, Amin returned to the Super 8, and a few
minutes later, Reinholt texted Brown requesting he pick her up from the Manor
Motel and drop her off at the Super 8. At the Super 8, Amin observed
Reinholt, Brown, and Black enter the lobby together. Brown and Black quickly
left.
[5] Around midnight, officers from the Logansport Police Department arrived at
the Super 8 and Reinholt and Amin explained they were victims of a robbery.
Suspicious of Reinholt’s involvement, law enforcement explained it would
leave the premises and allow Reinholt to relax before speaking with her the
following day. Once it appeared law enforcement left, Reinholt immediately
texted Brown to come pick her up. Unbeknownst to Brown and Reinholt, law
enforcement remained nearby. Brown and Black arrived at the Super 8 and
were stopped by law enforcement. Law enforcement then showed Brown and
Black to Amin and Amin affirmed the pair were the ones who robbed him.
[6] On January 19, 2015, the State charged Brown with conspiracy to commit
robbery as a Level 3 felony and battery as a Level 6 felony. The State also
alleged Brown was an habitual offender. Following a jury trial in February
2016, the trial court declared a mistrial after the jury deadlocked.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 4 of 20 [7] On February 24, 2016, the State filed an amendment to the charging
information to include three additional counts against Brown: conspiracy to
commit robbery resulting in serious bodily injury as a Level 2 felony (“Count
III”), robbery resulting in serious bodily injury as a Level 2 felony (“Count
IV”), and battery resulting in serious bodily injury as a Level 5 felony (“Count
V”). On February 29, 2016, the trial court held an “Initial hearing” with
respect to these new charges. Appellant’s Appendix, Volume II at 158. At the
hearing, the State informed the trial court that it would move to dismiss the
original two counts that had resulted in a mistrial and proceed only on the three
new charges. Brown’s counsel was not present at the hearing but the trial court
entered a plea of not guilty to the new charges on Brown’s behalf. The State
did not file a motion to dismiss Counts I and II thereafter.
[8] On July 19, 2016, the State filed a new charging information against Brown and
Black that included only Counts III-V, now renumbered Counts I-III (hereafter
referred to as such), and the habitual offender allegation. Brown did not object.
A joint trial commenced the following day. There, the State admitted evidence
of the show-up identification and Amin also testified that Brown was one of his
assailants. The jury found Brown guilty as charged. The trial court entered
judgment of conviction on all counts, but vacated the battery conviction due to
double jeopardy concerns. The trial court sentenced Brown to thirty years on
both Counts I and III, to be served consecutively. The trial court also enhanced
Brown’s sentence by twenty years due to his habitual offender status for an
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 5 of 20 aggregate sentence of eighty years in the Indiana Department of Correction.
This appeal ensued. Additional facts will be added as necessary.
Discussion and Decision I. Right to Counsel [9] Brown contends he was deprived of his right to counsel because his counsel was
not present at the initial hearing on the additional charges on February 29,
2016.
A defendant’s right to counsel arises at any point during a criminal proceeding in which the absence of counsel would erode the defendant’s right to a fair trial. This includes any critical stage in which (1) incrimination may occur or (2) where the opportunity for effective defense must be seized or be foregone. An initial hearing conducted under Indiana’s statutory scheme is not a critical stage of the criminal proceeding requiring the presence of counsel.
Hopper v. State, 957 N.E.2d 613, 616-17 (Ind. 2011) (emphasis added) (citations
and internal quotation marks omitted). In addition, a critical stage exists when
“the defendant is confronted with the intricacies of the law or the advocacy of
the public prosecutor or prosecuting authorities.” Hernandez v. State, 761
N.E.2d 845, 850 (Ind. 2002). A defendant bears the burden of establishing a
stage in a proceeding is indeed “critical.” Id.
[10] The initial question is whether the February 29 hearing was an initial hearing.
Brown argues the hearing was not an initial hearing, because contrary to typical
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 6 of 20 initial hearings, the State was attempting “to seek court approval to increase the
severity and number of charges against Brown . . . .” Appellant’s Reply Brief at
12. We find this hearing was an initial hearing for several reasons despite a
decision in Brown’s co-defendant’s case, No. 09A04-1610-CR-2312, that found
that the hearing was not an initial hearing, but rather a “continuance” of earlier
proceedings.
[11] Following the mistrial, the State filed the amended information on February 24
and Brown’s attorney, who did not appear at the hearing, was provided with a
copy of the amended information. At the hearing on February 29, the trial
court proceeded as if it was an initial hearing, evidenced notably by the trial
court describing the hearing as an initial hearing, ensuring Brown’s counsel had
been provided a copy of the amended information, ensuring Brown understood
the nature of the charges against him, and by stating: “I’m just here to notify
these gentlemen what they’re being charged with so they understand.”
Transcript, Volume II at 163. In addition, the trial court entered not guilty
pleas on the new charges on Brown’s behalf. The trial court’s actions are
consistent with the purpose of an initial hearing: inform a defendant of the
nature of the charges against him pursuant to Indiana Code section 35-33-7-5.
Further, Brown’s counsel’s absence at the hearing indicates he also treated this
hearing as a mere formality akin to an initial hearing. While this may not have
been a typical “initial hearing” because this hearing occurred after a mistrial, its
purpose and procedure are typical. For this reason, Brown’s argument fails.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 7 of 20 [12] This hearing was also not a critical stage of the proceedings requiring counsel’s
presence without regard to any title delineation of the hearing. Brown attempts
to meet his burden of proving he was faced with the intricacies of the law
and/or the advocacy of the prosecutor by arguing counsel’s presence was
necessary at the hearing in order to object to the State’s amendment. 1 However,
counsel’s presence at the hearing was not critical; nothing occurred at the
hearing that could have jeopardized Brown’s rights, including his right to a fair
trial. See Hopper, 957 N.E.2d at 616 (“A defendant’s right to counsel arises at
any point during a criminal proceeding in which the absence of counsel would
erode the defendant’s right to a fair trial.”). Any objection that counsel might
have made at the hearing was not waived nor was Brown’s right to later
challenge the State’s amendment waived. All of Brown’s concerns remained
ripe for objections and motions by his counsel at a later date. We conclude
Brown has not met his burden of proving he was deprived of his right to counsel
at a critical stage of the proceedings.2
1 Specifically, Brown contends his counsel could and would have objected to the State’s amendment on the following bases: (1) the State did not follow Indiana law in amending the information, (2) the amendment violated his double jeopardy rights, and (3) the State’s amendment was vindictive. 2 Even assuming Brown was deprived of counsel at a critical stage, the deprivation is subject to harmless error analysis so long as the deprivation cannot be harmless by its very nature. See Hernandez, 761 N.E.2d at 849. As demonstrated above, Brown’s counsel knew of the amended charges prior to the hearing and had approximately five months prior to trial to challenge the State’s amendment, which he did not do. Thus, Brown had ample opportunity to object to the State’s amendment and to prepare a meaningful defense against the charges. We conclude any deprivation of Brown’s right to counsel was harmless.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 8 of 20 II. Amendments to the Charging Information [13] As noted above, the original trial resulted in a mistrial and the State thereafter
filed an amended charging information to include Counts I-III. The trial court
then held an initial hearing on the additional charges on February 29, 2016. At
the hearing, the State informed the trial court that it would be dismissing the
original two charges that resulted in a mistrial. At no point during the
following five months did Brown object to the State’s action. On July 19, 2016,
the day before the second trial commenced, the State filed an amended
information including only Counts I-III and an habitual offender allegation.
Brown also did not object to the July 19 amendment. 3
[14] On appeal, Brown contends the State improperly amended the charging
information on February 29 and July 19 thereby prejudicing his substantial
rights. Specifically, he claims he was prejudiced because the amendment
altered factual and legal defenses available to him. The State counters Brown
waived any challenge to the filing of the amended information by failing to
object to the amendments and/or to request a continuance. We agree with the
State.
3 It is necessary to note the State made two additional amendments to the charging information during trial. Unlike the two amendments that occurred prior to trial, when the State made these day-of-trial amendments, Brown objected each time and moved for a continuance. The trial court overruled each of the objections and denied the motions, reasoning the State’s amendments during trial were technical, not substantive. We emphasize Brown does not challenge the trial court’s decisions regarding the two in-court amendments; rather he only challenges the amendments that occurred prior to trial.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 9 of 20 [15] Indiana Code section 35-34-1-5(b) permits amendments to the substance of
charging information at any point prior to trial so long as the amendment does
not prejudice the substantial rights of the defendant. Wilson v. State, 931 N.E.2d
914, 917-18 (Ind. Ct. App. 2010), trans. denied. A defendant seeking to
challenge a pre-trial substantive amendment to the charging information must
first object to the amendment, and if overruled, request a continuance. Id. at
918. Here, the record reveals the amendments were substantive in nature,
Brown received notice of the amendments, and as the State properly asserts,
Brown did not object to the amendments in either February or July. For this
reason, Brown has waived any challenge to the trial court permitting the
amendments. See id.
[16] Because Brown has waived this issue, he must now prove the trial court’s act of
permitting the State to amend the information constitutes fundamental error.
See Gibson v. State, 51 N.E.3d 204, 211-12 (Ind. 2016). “Fundamental error is
an extremely narrow exception to the waiver rule where the defendant faces the
heavy burden of showing that the alleged error[ ][is] so prejudicial to the
defendant’s rights as to make a fair trial impossible.” Id. at 212 (alterations in
original) (citation and internal quotation marks omitted). Thus, Brown must
show the trial court erred in not sua sponte raising issues with the amendments
when the issues clearly amounted to a blatant violation of Brown’s right to due
process and presented an undeniable and substantial potential for harm. Id.
[17] Based on our review of the record and assuming the trial court erred, we are not
persuaded Brown suffered any prejudice, let alone prejudice amounting to
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 10 of 20 fundamental error. In February, the State filed an amendment to the charging
information to include Counts I-III. Brown received notice of the State’s
amendment before the initial hearing on February 29, 2016, but counsel did not
appear at the hearing. Over the next five months, Brown did not object to or
challenge the State’s action. And as to the State’s July amendment, we merely
note Brown received the benefit of the State dismissing two counts against him.
Thus, by the start of trial, Brown had known of the charges against him for
approximately five months and this period gave him time to prepare a
meaningful defense. Following the State’s amendments, Brown had a full
opportunity to defend against the State’s charges. Therefore, even assuming the
trial court erred in permitting the State to amend the charges, we conclude
Brown has waived this claim and failed to establish any error in amending the
information amounts to fundamental error.
III. Admission of Evidence [18] We review a trial court’s decision regarding the admission of evidence for an
abuse of discretion. Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans.
denied. A trial court abuses its discretion if its decision is clearly against the
logic and effect of the facts and circumstances before the court, or if the court
has misinterpreted the law. Id.
[19] Brown contends the trial court abused its discretion in admitting evidence of
Amin’s identification of Brown during the show-up procedure. Specifically, he
claims the show-up procedure was unduly suggestive and therefore the
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 11 of 20 admission of any evidence of Amin identifying Brown as an assailant, whether
during the show-up or at trial, was an abuse of discretion. The State counters
the identification procedure was not unduly suggestive, and in the alternative,
Amin’s in-court identification of Brown was supported by an independent basis.
At the very least, we agree Amin’s in-court identification of Brown was
supported by an independent basis and therefore any error in admission of
evidence pertaining to Amin’s identification of Brown during the show-up
procedure is harmless.
[20] Due process of law requires the suppression of pretrial identification if the
identification procedure is unduly suggestive. Id. However,
Even where a show-up identification is deemed unduly suggestive, a subsequent, in-court identification may still be admissible if the State proves that an independent basis for the in- court identification exists. In determining whether an independent basis for the in-court identification exists, the inquiry is whether, under the totality of the circumstances surrounding the witness’s initial observation of the perpetrator at the scene of the crime, the witness could (1) resist any suggestiveness inherent in the improper show-up staged by the police and (2) make an accurate in-court identification based on that earlier observation.
Id. at 25 (citations omitted).
[21] Here, the totality of the circumstances demonstrate Amin had previously
observed Brown and his relationship with Reinholt, who was staying at the
Super 8. On the date in question, Amin again observed Reinholt with Brown.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 12 of 20 Specifically, Amin observed Reinholt get into the car at the Super 8 with Brown
and Black, Amin followed the trio to the Manor Motel, Amin watched as
Brown and Black stayed in the parking lot while Reinholt booked a room, and
when Amin went to park his car, he further observed Brown and Black in the
parking lot. When masked assailants entered the room, Amin recognized the
pair as Brown and Black because the assailants were wearing the same clothes
that Brown and Black were wearing the times Amin had previously seen them
that day. In addition, Amin heard one of the assailants say Reinholt’s name
and later observed Brown and Black return to the Super 8 with Reinholt, further
corroborating Amin’s belief the masked assailants were Brown and Black.
When law enforcement then conducted the show-up, Brown and Black were
wearing the same clothes. In light of these observations, it is clear Amin could
resist any suggestiveness in the show-up staged by police and confidently and
accurately make an in-court identification of Brown. We conclude even if the
trial court erred in admitting evidence of the show-up identification, such an
error was harmless because the admission of Amin’s in-court identification of
Brown was not an abuse of discretion.
IV. Jury Instructions and Verdict Forms [22] As noted above, the State alleged Brown was an habitual offender based upon
three prior unrelated felony convictions for perjury, theft, and burglary. The
convictions for theft and perjury occurred in Indiana. As to the burglary
conviction, Brown was convicted under Ohio cause number 09CR58 and the
State admitted evidence showing the same. However, the habitual offender
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 13 of 20 information originally filed by the State showed the conviction under cause
number 09CR56 and the jury instructions and special verdict form instructed
the jury to decide—specifically—whether Brown was previously convicted for
burglary in Ohio under cause number 09CR56. Thus, the original habitual
offender information, the jury instructions, and the special verdict form all
contained a scrivener’s error.
[23] During deliberations, the jury recognized the contradiction in the cause
numbers and sought clarification from the trial court. The State apologized for
its error and moved the trial court to amend the information to correct the cause
number to reflect 09CR58. Brown objected and moved to dismiss the habitual
offender enhancement. The trial court then denied both motions and informed
the parties the proper way to remedy the situation would be for the State to
move to dismiss either the perjury or theft allegation contained in the habitual
offender information and then the trial court would supplement the original
special verdict form with a general verdict form. The State dismissed its
allegation that Brown was previously convicted of theft in Indiana. Over
Brown’s objection to the trial court’s remedy, the trial court called the jury back
into the courtroom, instructed the jury to ignore the State’s theft allegation, and
provided the jury with a general verdict form that did not contain any reference
to the Ohio cause number. The jury found Brown to be an habitual offender.
[24] On appeal, Brown challenges the trial court’s act of altering the instructions
and the verdict form after jury deliberations began. Specifically, he claims the
procedure “effectively told the jury what it ought to do concerning the issue of
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 14 of 20 whether Brown was an habitual offender.” Amended Appellant’s Brief at 38.
The State acknowledges the trial court’s procedure was not appropriate, but
counters any error did not prejudice Brown. We agree with the State.
[25] At the outset, we note Brown does not challenge whether the evidence is
sufficient to support a finding that he is an habitual offender. During the
habitual offender phase, the State alleged only one burglary conviction from
Ohio and the evidence submitted by the State contained the correct cause
number for this conviction. Due to a scrivener’s error, however, the State
included the incorrect cause number on the information and the trial court
subsequently followed that information—not the evidence—when drafting the
special verdict form, leading to the jury’s confusion. Therefore, the jury was
not confused as to whether Brown was in fact convicted of burglary in Ohio;
rather, the jury was confused on how to specifically find on the special verdict
form that Brown was convicted under cause number 09CR56 when the
evidence showed Brown was convicted under 09CR58. To clear this confusion,
the trial court merely switched the special verdict form to a general verdict form
thereby alleviating the need for the jury to specifically find that Brown was
convicted of burglary in Ohio under a specific cause number. In addition, the
switch from the special verdict form to a general verdict form still tasked the
jury with finding whether Brown was an habitual offender based on the
evidence admitted by the State. We conclude any error in amending the jury
instructions and verdict form during jury deliberations did not prejudice Brown.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 15 of 20 V. Double Jeopardy [26] Brown contends his convictions for conspiracy to commit robbery causing
serious bodily injury and robbery causing serious bodily injury violate Indiana’s
common law prohibition against double jeopardy because each charge was
enhanced based upon evidence of the same injury to the same person.
Specifically, he claims there is a reasonable probability the jury relied on
evidence of Brown knocking out Amin’s teeth in finding him guilty on each
count. We agree.
[27] Article 1, Section 14 of the Indiana Constitution provides, “[n]o person shall be
put in jeopardy twice for the same offense.” In addition to this constitutional
protection, our supreme court has long adhered to a series of rules of statutory
construction and common law that are often described as double jeopardy but
are not governed by the constitutional test. Pierce v. State, 761 N.E.2d 826, 830
(Ind. 2002). Among these common-law rules is the doctrine that where a
felony conviction is enhanced based on the same bodily injury that forms the
basis of or enhances another conviction, the two convictions cannot stand as is.
See id.; Smith v. State, 872 N.E.2d 169, 176-77 (Ind. Ct. App. 2007) (“[W]e
conclude that if the same bodily injury was used to enhance [the defendant’s]
convictions of burglary to a Class A felony as was used to enhance his
conviction of robbery to a Class A felony, entering a judgment of conviction for
both counts would be improper.”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 16 of 20 [28] Here, the State charged Brown under Count I with conspiracy to commit
robbery as a Level 2 felony, alleging Brown caused serious bodily injury by
knocking out three of Amin’s teeth. As to Count II, the State charged Brown
with robbery as a Level 2 felony, alleging the same serious bodily injury. The
evidence admitted at trial demonstrates Amin also suffered injuries to his eye
and face. Neither the trial court’s preliminary nor final instructions reference
the specifics of Amin’s injuries except for the instructions restating the charging
information. And during closing arguments when addressing the allegations of
serious bodily injury on both counts, the State consistently referenced Brown’s
act of knocking out Amin’s teeth. Therefore, despite there being evidence
Amin suffered other injuries apart from losing his teeth, we conclude the
serious bodily injury upon which each conviction rests is the injury to his teeth.
[29] Because Brown’s convictions violate double jeopardy, we must next address the
remedy. “When two convictions are found to contravene 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 v. State, 717 N.E.2d 32, 54 (Ind. 1999). Indiana
Code section 35-42-5-1 provides,
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;
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 17 of 20 commits robbery, a Level 5 felony. However, the offense is a Level 3 felony if it . . . results in bodily injury to any person other than a defendant, and a Level 2 felony if it results in serious bodily injury to any person other than a defendant.
[30] Brown argues his conviction for robbery as a Level 2 felony must be reduced to
a Level 5 felony which does not include an element of causing bodily injury.
The State counters Brown’s conviction for robbery as a Level 2 felony should be
reduced to robbery causing bodily injury as a Level 3 felony because there is
evidence Brown also injured Amin’s eye and face. As noted above, the double
jeopardy violation is that each of Brown’s Level 2 felony convictions were
enhanced because Brown knocked out Amin’s teeth. If we were to accept the
State’s argument that the robbery conviction should be reduced to a Level 3
felony, the violation would not be cured because there would still be a double
enhancement based on the evidence of Brown knocking out Amin’s teeth. The
only way to cure this double jeopardy violation is to reduce one of Brown’s
convictions to a lesser offense that does not include any bodily injury as a
statutory element, that is, robbery as a Level 5 felony. See Montgomery v. State,
21 N.E.3d 846, 866-67 (Ind. Ct. App. 2014), trans. denied. We therefore reverse
Brown’s conviction for robbery as a Level 2 felony, instruct the trial court on
remand to enter judgment of conviction for robbery as a Level 5 felony and
sentence Brown to six years, the maximum sentence for a Level 5 felony, to be
served consecutively to Brown’s thirty-year sentence on Count I. This sentence
is in accord with the trial court’s original maximum and consecutive sentence.
See Young v. State, 57 N.E.3d 857, 860 (Ind. Ct. App. 2016) (“Upon remedying a
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 18 of 20 double jeopardy issue, the trial court need not undertake a full sentencing
reevaluation, but rather the reviewing court will make this determination itself,
being mindful of the penal consequences that the trial court found
appropriate.”) (citation and internal quotation marks omitted), trans. denied.
VI. Sentencing Order [31] Brown contends the trial court’s sentencing order is at odds with the abstract of
judgment and the trial court’s sentencing statement. Specifically, he argues the
sentencing order does not reflect the trial court’s intent to vacate the battery
conviction. The State agrees. On remand, the trial court is also instructed to
amend its sentencing order to reflect that Brown’s conviction for battery is
vacated.
Conclusion [32] We conclude Brown was not deprived of his right to counsel at a critical stage
of the proceedings, the trial court did not commit fundamental error in
permitting the State to amend the charging information prior to trial, and the
trial court did not err in admitting identification evidence. In addition, even
assuming the trial court erred in modifying the jury instructions, Brown has not
shown prejudice from the error. We further conclude, however, Brown’s
convictions violate double jeopardy and the trial court’s sentencing order
contains an error. On remand, the trial court is to enter judgment of conviction
for robbery as a Level 5 felony and sentence Brown on that count to six years,
the maximum for a Level 5 felony. The trial court is also instructed on remand Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 19 of 20 to amend the sentencing order to reflect that Brown’s conviction for battery is
vacated. Accordingly, we affirm in part, reverse in part, and remand with
instructions.
[33] Affirmed in part, reversed in part, and remanded.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 09A02-1610-CR-2385 | July 12, 2017 Page 20 of 20