Eric J. Smith v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 20, 2014
• Docket: 02A03-1311-CR-449
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose Aug 20 2014, 9:33 am of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana

BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ERIC J. SMITH, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1311-CR-449 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-1307-MR-7

August 20, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

Eric J. Smith appeals his convictions for murder and Class B felony possession of

a firearm by a serious violent felon. We affirm.

Issue

Smith raises one issue, which we restate as whether his convictions violate the

prohibition against double jeopardy.

Facts

Smith shot and killed Jabron Totton during a dispute in the parking lot of an

American Legion post in Fort Wayne. The State charged Smith with murder, with an

application for an additional fixed term of imprisonment for using a firearm pursuant to

Indiana Code Section 35-50-2-11, and Class B felony possession of a firearm by a serious

violent felon. A jury found Smith guilty as charged. The trial court sentenced him to

sixty-five years for the murder conviction enhanced by five years for the use of a firearm

consecutive to a sentence of twenty years for the possession of a firearm by a serious

violent felon conviction. He received an aggregate sentence of ninety years in the

Department of Correction. Smith now appeals.

Analysis

Smith argues that his convictions violate the prohibition against double jeopardy.

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. 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

2 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).

Smith concedes that his convictions do not violate the statutory elements test;

rather, Smith argues that his convictions for murder and possession of a firearm by a

serious violent felon violate the actual evidence test.1 “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.” Id. 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 one

offense may also have been used to establish the essential elements of a second

challenged offense.” Id. “The actual evidence test is applied to all the elements of both

offenses.” Id. “‘In other words . . . the Indiana Double Jeopardy Clause is not violated

when the evidentiary facts establishing the essential elements of one offense also

establish only one or even several, but not all, of the essential elements of a second

offense.’” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).

According to Smith, the same evidentiary facts were used to establish the essential

elements of both murder and possession of a firearm by a serious violent felon. Our

1 Smith does not that argue the sentencing enhancement for using a firearm and his conviction for possession of a firearm by a serious violent felon violate the prohibition against double jeopardy. See Cooper v. State, 940 N.E.2d 1210, 1215 (Ind. Ct. App. 2011) (recognizing that sentencing enhancements are not offenses for double jeopardy purposes), trans. denied.

3 supreme court addressed a similar argument in Mickens v. State, 742 N.E.2d 927 (Ind.

2001). There, the defendant challenged his convictions for murder and carrying a

handgun without a license based on the prohibition against double jeopardy based on the

actual evidence test. Our supreme court rejected the argument and found that “[c]arrying

the gun along the street was one crime and using it was another.” Mickens, 742 N.E.2d

at 931.

Similarly, here, the State proved that Smith committed murder by demonstrating

that he caused Totton’s death by shooting him with a gun. The State proved that Smith

committed possession of a firearm by a serious violent felon by demonstrating that Smith

possessed a gun and qualified as a serious violent felon. Smith attempts to distinguish

Mickens by arguing that “not a single witness saw Smith with a gun at any point on June

9th.” Appellant’s Br. p. 11. However, circumstantial evidence demonstrated that Smith

possessed the weapon. As the State point out, “One cannot fire a gun without also, at

some point, possessing that firearm.” Appellee’s Br. p. 8. We conclude that Smith’s

double jeopardy argument fails. Possessing the weapon as a serious violent felon was

one crime and using it to murder Totton was another.

Conclusion

Smith’s convictions for murder and possession of a firearm by a serious violent

felon do not violate the prohibition against double jeopardy. We affirm.

Affirmed.

BRADFORD, J., and BROWN, L., concur.