MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 23 2016, 9:27 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Susan D. Rayl Gregory F. Zoeller Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Coby Crowe, June 23, 2016 Appellant-Defendant, Court of Appeals Cause No. 49A05-1509-CR-1485 v. Appeal from the Marion Superior Court State of Indiana, The Honorable William Nelson, Appellee-Plaintiff. Judge Trial Court Cause No. 49F18-1403-FD-15204
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 1 of 6 Case Summary [1] Coby Crowe appeals his convictions for Class D felony dealing in a sawed-off
shotgun and Class A misdemeanor pointing a firearm. We affirm.
Issue [2] Crowe raises one issue, which we restate as whether his convictions for Class D
felony dealing in a sawed-off shotgun and Class A misdemeanor pointing a
firearm violate the prohibition against double jeopardy.
Facts [3] On March 24, 2014, Donesha Jackson was retrieving an item from her car
when Crowe stopped his car near her. Crowe pointed a large gun at Jackson,
said, “What’s up now, m-f’er,” and pulled the trigger several times. Tr. p. 10.
Jackson could see Crowe’s finger moving and could hear the gun clicking, but
the gun did not fire. Jackson ran and hid behind a dumpster, and Crowe drove
his vehicle near the dumpster. Jackson heard the clicking noise again, but the
gun did not fire. She then ran into the house and called 911.
[4] The police located Crowe, and he had a sawed-off shotgun in the vehicle and
marijuana in his pocket. The State charged Crowe with Class D felony dealing
in a sawed-off shotgun, Class A misdemeanor pointing a firearm, and Class A
misdemeanor possession of marijuana. After a bench trial, the trial court found
Crowe guilty as charged. The trial court sentenced him to 1095 days in the
Department of Correction with 365 days suspended to probation. Crowe now
appeals. Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 2 of 6 Analysis [5] Crowe argues that his convictions for Class D felony dealing in a sawed-off
shotgun and Class A misdemeanor pointing a firearm violate the prohibition
against double jeopardy. According to Crowe, he “would have to commit the
lesser offense of possession of a sawed-off shotgun in order to commit the
greater offense of pointing a sawed-off shotgun.” Appellant’s Br. p. 11. Crowe
requests that we vacate his conviction for Class D felony dealing in a sawed-off
shotgun.
[6] Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,
providing that “[n]o person shall be put in jeopardy twice for the same offense.”
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), 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. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). “In addition to the
instances covered by Richardson, ‘we have 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 set forth in
Richardson.’” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce
v. State, 761 N.E.2d 826, 830 (Ind. 2002)). “Even 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
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 3 of 6 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, 761 N.E.2d at 830), trans. denied. These rules fall under broader
categories set forth by Justice Sullivan in his concurring opinion in Richardson
and include the “[c]onviction and punishment for a crime which is a lesser-
included offense of another crime for which the defendant has been convicted
and punished.” Id.
[7] Indiana Code Section 35-38-1-6 “reinforces” the double jeopardy rule that
prohibits a trial court “from sentencing a defendant for an offense and a lesser
included offense charged in separate counts.” Hopkins v. State, 759 N.E.2d 633,
639 (Ind. 2001). Specifically, Indiana Code Section 35-38-1-6 provides that if a
defendant is charged with an offense and an included offense in separate counts
and is found guilty of both counts, “judgment and sentence may not be entered
against the defendant for the included offense.” “Included offense” means an
offense that:
(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 4 of 6 Ind. Code § 35-31.5-2-168. A lesser-included offense is necessarily included
within the greater offense if it is impossible to commit the greater offense
without first having committed the lesser offense. Zachary v. State, 469 N.E.2d
744, 749 (Ind. 1984). If the evidence indicates that one crime is independent of
another crime, it is not an included offense. Iddings v. State, 772 N.E.2d 1006,
1017 (Ind. Ct. App. 2002), trans. denied.
[8] At the time of Crowe’s offense, Indiana Code Section 35-47-5-4.11 provided that
a person who possessed “any sawed-off shotgun commits dealing in a sawed-off
shotgun, a Class D felony.” On the other hand, Indiana Code Section 35-47-4-
3(b) provided: “A person who knowingly or intentionally points a firearm at
another person commits a Class D felony. However, the offense is a Class A
misdemeanor if the firearm was not loaded.” We conclude that dealing in a
sawed-off shotgun is not a lesser included offense of pointing a firearm. The
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 23 2016, 9:27 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Susan D. Rayl Gregory F. Zoeller Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Coby Crowe, June 23, 2016 Appellant-Defendant, Court of Appeals Cause No. 49A05-1509-CR-1485 v. Appeal from the Marion Superior Court State of Indiana, The Honorable William Nelson, Appellee-Plaintiff. Judge Trial Court Cause No. 49F18-1403-FD-15204
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 1 of 6 Case Summary [1] Coby Crowe appeals his convictions for Class D felony dealing in a sawed-off
shotgun and Class A misdemeanor pointing a firearm. We affirm.
Issue [2] Crowe raises one issue, which we restate as whether his convictions for Class D
felony dealing in a sawed-off shotgun and Class A misdemeanor pointing a
firearm violate the prohibition against double jeopardy.
Facts [3] On March 24, 2014, Donesha Jackson was retrieving an item from her car
when Crowe stopped his car near her. Crowe pointed a large gun at Jackson,
said, “What’s up now, m-f’er,” and pulled the trigger several times. Tr. p. 10.
Jackson could see Crowe’s finger moving and could hear the gun clicking, but
the gun did not fire. Jackson ran and hid behind a dumpster, and Crowe drove
his vehicle near the dumpster. Jackson heard the clicking noise again, but the
gun did not fire. She then ran into the house and called 911.
[4] The police located Crowe, and he had a sawed-off shotgun in the vehicle and
marijuana in his pocket. The State charged Crowe with Class D felony dealing
in a sawed-off shotgun, Class A misdemeanor pointing a firearm, and Class A
misdemeanor possession of marijuana. After a bench trial, the trial court found
Crowe guilty as charged. The trial court sentenced him to 1095 days in the
Department of Correction with 365 days suspended to probation. Crowe now
appeals. Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 2 of 6 Analysis [5] Crowe argues that his convictions for Class D felony dealing in a sawed-off
shotgun and Class A misdemeanor pointing a firearm violate the prohibition
against double jeopardy. According to Crowe, he “would have to commit the
lesser offense of possession of a sawed-off shotgun in order to commit the
greater offense of pointing a sawed-off shotgun.” Appellant’s Br. p. 11. Crowe
requests that we vacate his conviction for Class D felony dealing in a sawed-off
shotgun.
[6] Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,
providing that “[n]o person shall be put in jeopardy twice for the same offense.”
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), 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. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). “In addition to the
instances covered by Richardson, ‘we have 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 set forth in
Richardson.’” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce
v. State, 761 N.E.2d 826, 830 (Ind. 2002)). “Even 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
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 3 of 6 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, 761 N.E.2d at 830), trans. denied. These rules fall under broader
categories set forth by Justice Sullivan in his concurring opinion in Richardson
and include the “[c]onviction and punishment for a crime which is a lesser-
included offense of another crime for which the defendant has been convicted
and punished.” Id.
[7] Indiana Code Section 35-38-1-6 “reinforces” the double jeopardy rule that
prohibits a trial court “from sentencing a defendant for an offense and a lesser
included offense charged in separate counts.” Hopkins v. State, 759 N.E.2d 633,
639 (Ind. 2001). Specifically, Indiana Code Section 35-38-1-6 provides that if a
defendant is charged with an offense and an included offense in separate counts
and is found guilty of both counts, “judgment and sentence may not be entered
against the defendant for the included offense.” “Included offense” means an
offense that:
(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 4 of 6 Ind. Code § 35-31.5-2-168. A lesser-included offense is necessarily included
within the greater offense if it is impossible to commit the greater offense
without first having committed the lesser offense. Zachary v. State, 469 N.E.2d
744, 749 (Ind. 1984). If the evidence indicates that one crime is independent of
another crime, it is not an included offense. Iddings v. State, 772 N.E.2d 1006,
1017 (Ind. Ct. App. 2002), trans. denied.
[8] At the time of Crowe’s offense, Indiana Code Section 35-47-5-4.11 provided that
a person who possessed “any sawed-off shotgun commits dealing in a sawed-off
shotgun, a Class D felony.” On the other hand, Indiana Code Section 35-47-4-
3(b) provided: “A person who knowingly or intentionally points a firearm at
another person commits a Class D felony. However, the offense is a Class A
misdemeanor if the firearm was not loaded.” We conclude that dealing in a
sawed-off shotgun is not a lesser included offense of pointing a firearm. The
dealing in a sawed-off shotgun offense required proof that Crowe possessed a
sawed-off shotgun while the pointing a firearm offense required proof that
Crowe pointed a firearm at someone. The dealing in a sawed-off shotgun
offense is not established by proof of the same material elements or less than all
the material elements required to establish the commission of the pointing a
firearm offense. Crowe’s argument fails. See, e.g., Armstrong v. State, 742
N.E.2d 972, 978 (Ind. Ct. App. 2001) (holding that no double jeopardy
violation occurred by the defendant’s conviction for Class D felony pointing a
1 Repealed by Pub. L. No. 84-2015, § 4 (eff. July 1, 2015).
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 5 of 6 firearm and Class A misdemeanor carrying a handgun without a license);
Mickens v. State, 742 N.E.2d 927, 931 (Ind. 2001) (“Carrying the gun along the
street was one crime and using it was another.”).
Conclusion [9] The prohibition against double jeopardy is not violated by Crowe’s convictions
for Class D felony dealing in a sawed-off shotgun and Class A misdemeanor
pointing a firearm. We affirm.
[10] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1485 | June 23, 2016 Page 6 of 6