MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Sep 15 2015, 8:31 am this Memorandum Decision shall not be regarded as precedent or cited before any 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 John C. Bohdan Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Larry Hayden, Jr., September 15, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1501-CR-9 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D06-1310-FB-205
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 1 of 19 [1] Larry Hayden, Jr., appeals his convictions and sentences for robbery as a class
C felony, unlawful possession of a firearm by a serious violent felon as a class B
felony, escape as a class C felony, intimidation as a class D felony, and two
counts of resisting law enforcement as class A misdemeanors. Hayden raises
one issue which we revise and restate as whether his convictions and sentences
violate double jeopardy principles or the continuing crime doctrine. We affirm.
Facts and Procedural History
[2] On October 21, 2013, a confidential informant (the “C.I.”) met with detectives
regarding purchasing cocaine from Hayden in a controlled buy. A female
officer searched the C.I. and placed a wire on her. The C.I. and Hayden made
arrangements on the phone, but Hayden later called the C.I. and changed the
location of the meeting. Fort Wayne Police Detective Shane Heath gave the
C.I. $250 for the buy.
[3] The C.I. drove to the meeting location in Allen County. Hayden entered the
C.I.’s vehicle, sat in the passenger’s seat, and pulled out a gun. The C.I. started
“freaking out” and said: “[P]lease don’t do this.” Transcript at 141. Hayden
told the C.I. to take the keys out of the ignition, to put them out of the window,
and to give him all her money. The C.I. was “very scared” and gave Hayden
all the money that the police had given her. Id. at 142. Hayden then wiped his
fingerprints off the door handle and exited the car.
[4] Meanwhile, Fort Wayne Police Detective Greg Stier was listening to the wire
and heard normal conversation “[a]nd then all of a sudden the [C.I.] starting
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 2 of 19 begging for” her life. Id. at 227. One of the detectives asked uniform officers to
come closer, then said that the C.I. was being robbed and “to go in for the
rescue.” Id. at 160. Fort Wayne Police Detective Michael Long arrived at the
scene in a few seconds. Sergeant Mark Brooks and Detectives Heath and
Ripley arrived quickly as well.
[5] Detective Long observed Hayden’s right hand tucked in the inside of the left
portion of his coat and “[t]he way that his hand was positioned [he] could kind
of see a bulge, and it looked like he had a handgun.” Id. at 161. Detective
Long drew his handgun, ordered Hayden to show his hands, and Hayden went
behind the back side of a van, stayed back there a couple of seconds, and then
started to run. Detective Stier pursued Hayden in his vehicle. Sergeant Brooks
also pursued Hayden in his vehicle and observed him enter a small wooded
area but lost sight of him for a few moments. Sergeant Brooks eventually exited
his vehicle when Hayden exited the wooded area. Detective Stier ordered
Hayden to come out with his hands out. Sergeant Brooks drew his sidearm,
pointed it at Hayden, advised Hayden that he was a police officer, and told him
to “get down in a loud command voice, numerous times.” Id. at 180.
[6] Hayden walked toward Sergeant Brooks while holding the money in his hand.
Sergeant Brooks repeatedly ordered Hayden to “get down.” Id. Hayden looked
around, went down to his knees, leaned forward, and started to eat the money.
Hayden also put his hands in front of him and then back underneath him, and
Sergeant Brooks eventually placed Hayden in handcuffs.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 3 of 19 [7] Sergeant Brooks turned Hayden over to Detective Heath and began to search
for the weapon. Sergeant Brooks called the fire department to search the roof of
a barn in a location where Hayden had run and eventually retrieved a firearm
from the top of the barn.
[8] Meanwhile, Detective Mark Gerardot who was in full police uniform and
driving a squad car transported Hayden to the hospital. After arriving at the
hospital, Detective Gerardot opened the rear door of the car, and Hayden
stepped out of the vehicle and “had somehow gotten one of the cuffs off his
wrist and he fled, as soon as he got both feet on the ground, he took off
running.” Id. at 271. Detective Gerardot pursued Hayden on foot, provided
details of the pursuit to dispatch, and yelled “stop police.” Id. at 276. Hayden
did not comply.
[9] Nicole Ferguson, who was then employed by Allen County Community
Corrections and was wearing a full police uniform, observed Hayden running
and said “stop, police,” pointed her Taser at him, and again ordered him to
stop. Id. at 289. Hayden told Ferguson that he had a gun and that he was
going to shoot her, and Ferguson unsuccessfully deployed her Taser. Hayden
continued to run and eventually opened the passenger door of a vehicle driven
by a civilian, locked the doors, and yelled at the driver to drive. Detective
Gerardot told the panicked driver to open the door, and she complied.
Detective Gerardot then forcefully removed Hayden from the car and directed
him to the ground where Hayden struggled with officers. The officers were
eventually able to handcuff him.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 4 of 19 [10] At some point, Hayden told Detective Heath that he agreed to meet with the
C.I. to sell her cocaine but he had no intention of selling the cocaine and only
wished to take the C.I.’s money, and that he did not have a gun.
[11] On October 21, 2013, the State charged Hayden with Count I, robbery as a
class B felony; Count II, unlawful possession of a firearm by a serious violent
felon as a class B felony; Count III, escape as a class C felony; Count IV,
intimidation as a class D felony for his threat to Ferguson; Count V, resisting
law enforcement as a class A misdemeanor for fleeing from Detective Gerardot;
and Count VI, resisting law enforcement as a class A misdemeanor for forcibly
resisting, obstructing, or interfering with Detective Gerardot.1
[12] The jury found Hayden guilty of Counts I, III, IV, V, and VI. The court then
proceeded to the next phase of the trial regarding Count II, unlawful possession
of a firearm by a serious violent felon as a class B felony. Hayden stipulated
that he had a qualifying prior conviction but argued that he did not possess the
firearm. The jury found him guilty of Count II.
[13] On December 19, 2014, the court entered judgments of conviction and ordered
Hayden to serve six years for Count I, robbery as a class C felony, fifteen years
for Count II, unlawful possession of a firearm by a serious violent felon as a
class B felony, six years for Count III, escape as a class C felony, two years for
1 The State also charged Hayden with Count VII, possession of paraphernalia as a class A misdemeanor, which was later dismissed.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 5 of 19 Count IV, intimidation as a class D felony, and one year each for Counts V and
VI, resisting law enforcement as class A misdemeanors. The court ordered that
the sentences for Counts I, II, III, and IV be served consecutive to each other
and that Counts V and VI be served concurrent with each other and concurrent
with Counts I, II, III, and IV. Thus, Hayden received an aggregate sentence of
twenty-nine years.
[14] On January 28, 2015, the court entered an order finding that there were double
jeopardy issues in Count I, robbery as a class B felony as charged and Count II,
possession of a firearm by a serious violent felon, due to the fact that the
weapon used to enhance Count I from a class C felony to a class B felony was
the same weapon which formed the basis of Count II, possession of a firearm
by a serious violent felon. The court then entered judgment of conviction on
Count I, robbery, as a class C felony.
Analysis
[15] The issue is whether Hayden’s convictions and sentences violate double
jeopardy principles or the continuing crime doctrine.2
2 Hayden also argues that the sentences for Counts I and II are disproportionate to the crime charged, but does not cite to authority or develop this argument. Consequently, this issue is waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument).
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 6 of 19 A. Double Jeopardy under the Statutory and Actual Evidence Tests
[16] Hayden argues that the trial court’s reduction of Count I from robbery as a class
B felony to robbery as a class C felony failed to remedy the double jeopardy
violation because his knowing and intentional possession of a firearm was an
element the State needed to prove in order to convict him of armed robbery,
and that these two convictions fail the statutory elements test as outlined in
Richardson v. State, 717 N.E.2d 32 (Ind. 1999). He also asserts that the same
evidence was used to prove the essential elements of Counts I and II, and that
there is more than a reasonable possibility that the same evidentiary facts were
used by the jury to convict him of both those Counts. He contends that the
State employed evidence of the possession of a firearm to prove the requisite
elements of a robbery. The State argues that the convictions for Counts I and II
do not violate the statutory elements test or the actual evidence test.
[17] The Indiana Constitution provides that “[n]o person shall be put in jeopardy
twice for the same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double
Jeopardy Clause . . . prevent[s] the State from being able to proceed against a
person twice for the same criminal transgression.” Hopkins v. State, 759 N.E.2d
633, 639 (Ind. 2001) (quoting Richardson, 717 N.E.2d at 49). The Indiana
Supreme Court has held 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 the actual evidence used
to convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.” Richardson, 717 N.E.2d at
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 7 of 19 49. “On appeal, the defendant bears the burden to show that his convictions
violated his constitutional right to be free from double jeopardy.” Boyd v. State,
766 N.E.2d 396, 400 (Ind. Ct. App. 2002) (citing Lutes v. State, 272 Ind. 699,
401 N.E.2d 671, 672-673 (1980)).
[18] In addition, Indiana courts “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) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J.,
concurring))). “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 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. As enumerated in Justice Sullivan’s concurrence in Richardson and
endorsed by the Indiana Supreme Court in Guyton, five additional categories of
double jeopardy exist: (1) conviction and punishment for a crime which is a
lesser-included offense of another crime for which the defendant has been
convicted and punished; (2) 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; (3) conviction and punishment for a crime which
consists of the very same act as an element of another crime for which the
defendant has been convicted and punished; (4) conviction and punishment for
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 8 of 19 an enhancement of a crime where the enhancement is imposed for the very
same behavior or harm as another crime for which the defendant has 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 has been
convicted and punished. See Guyton, 771 N.E.2d at 1143; Richardson, 717
N.E.2d at 55-56 (Sullivan, J., concurring).
[19] To the extent that Hayden argues that his convictions for Count I, robbery as a
class C felony, and Count II, unlawful possession of a firearm by a serious
violent felon, violate the statutory elements test, we observe that the objective of
the statutory elements test is to determine whether the essential elements of
separate statutory crimes charged could be established hypothetically.
Richardson, 717 N.E.2d at 50. The charged offenses are identified by comparing
the essential statutory elements of one charged offense with the essential
statutory elements of the other charged offense. Id.
Inspecting the relevant statutes and the charging instrument to identify those elements which must be established to convict under the statute, this review considers the essential statutory elements to determine the identity of the offense charged, but does not evaluate the manner or means by which the offenses are alleged to have been committed, unless the manner or means comprise an essential element.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 9 of 19 Id. “[I]dentity tests depend upon the evidence required [under the statute] to
convict, not the evidence actually introduced at trial.” Id. at 50 n.39 (quoting
Larry Simon, Note, Twice in Jeopardy, 75 Yale L.J. 262, 273 (1965)).
[20] Ind. Code § 35-42-5-1 governs robbery as a class C felony and at the time of the
offense provided that “[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;
commits robbery, a Class C felony.”3 Ind. Code § 35-47-4-5 governs unlawful
possession of a firearm by a serious violent felon and at the time of the offense
provided in part that “[a] serious violent felon who knowingly or intentionally
possesses a firearm commits unlawful possession of a firearm by a serious
violent felon, a Class B felony.”4 Robbery contains the element of taking
property, which is not an element of unlawful possession of a firearm by a
serious violent felon. Possession of a firearm by a serious violent felon requires
a showing that the person is a serious violent felon which is not an element of
robbery. The convictions do not violate the statutory elements test.
[21] We turn to whether Hayden’s convictions for Counts I and II violate the actual
evidence test. In order to find a double jeopardy violation under the actual
evidence test, a defendant must demonstrate and a reviewing court must
3 Subsequently amended by Pub. L. No. 158-2013, § 450 (eff. July 1, 2014). 4 Subsequently amended by Pub. L. No. 158-2013, § 590 (eff. July 1, 2014); Pub. L. No. 214-2013, § 40 (eff. July 1, 2014); Pub. L. No. 168-2014, § 88 (eff. July 1, 2014).
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 10 of 19 conclude that there is a reasonable possibility that the evidentiary facts used by
the factfinder to establish the essential elements of an offense for which the
defendant was convicted or acquitted may also have been used to establish all
the essential elements of a second challenged offense. Hines v. State, 30 N.E.3d
1216, 1222 (Ind. 2015); Vestal v. State, 773 N.E.2d 805, 806 (Ind. 2002), reh’g
denied. “Application of this test requires the court to ‘identify the essential
elements of each of the challenged crimes and to evaluate the evidence from the
jury’s perspective . . . .’” Hines, 30 N.E.3d at 1222 (quoting Lee v. State, 892
N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831, 832
(Ind. 2002))). “In determining the facts used by the fact-finder, ‘it is appropriate
to consider the charging information, jury instructions, [ ] arguments of
counsel’ and other factors that may have guided the jury’s determination.” Id.
(quoting Lee, 892 N.E.2d at 1234 (citing Spivey, 761 N.E.2d at 832 and
Richardson, 717 N.E.2d at 54 n.48)).
[22] We note that Hayden’s Appendix and the transcript do not contain a copy of
the jury instructions.5 The charging information for Count I, robbery as a class
B felony, alleged that Hayden “while armed with a deadly weapon, to wit: a
firearm, knowingly or intentionally [took] property, to wit: United States
currency; from the person or presence of another person, to wit: CI 1921, by
using or threatening the use of force, or by putting said CI 1921 in fear . . . .”
5 The transcript merely states: “ACCORDING TO LAW, PRELIMINARY JURY INSTRUCTIONS ARE READ TO THE JURY BY THE COURT” and “ACCORDING TO LAW, THE COURT READ THE BALANCE OF THE FINAL INSTRUCTIONS TO THE COURT.” Transcript at 123-124, 385.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 11 of 19 Appellant’s Appendix at 18. The charging information for Count II alleged that
Hayden, “a serious violent felon, did knowingly or intentionally possess a
firearm . . . .” Id. at 19. The record reveals that Hayden entered the C.I.’s
vehicle with the gun, exited the vehicle with the gun, and later threw the gun on
top of the barn. Based upon the record, we cannot say that Hayden has
demonstrated a reasonable possibility that the evidentiary facts used by the
factfinder to establish the essential elements of robbery may also have been used
to establish all the essential elements of possession of a firearm by a serious
violent felon. See Guyton, 771 N.E.2d at 1142-1143 (observing that the
defendant claimed his convictions for murder and carrying a handgun without a
license violated the Double Jeopardy provisions of the Indiana Constitution and
cited Richardson, and holding that carrying a gun along the street was one crime
and using it was another); Guyton, 771 N.E.2d at 1145-1146 (Dickson, J.,
concurring in result) (observing that the State demonstrated that the defendant
caused a death by shooting the victim and also showed that the defendant
possessed the gun before and after the shooting and that it was not reasonably
possible that the jury ignored this evidence and based its finding of guilt for the
handgun offense solely on the defendant’s possession of the weapon at the time
he fired it); Thy Ho v. State, 725 N.E.2d 988, 992-993 (Ind. Ct. App. 2000)
(holding that distinct evidentiary facts were used to prove that the defendant
committed robbery while armed with a handgun while a lack of evidentiary
facts were used to prove that the defendant did not have a license to carry that
handgun and that the defendant’s convictions were not the same offense under
Indiana’s Double Jeopardy Clause). Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 12 of 19 [23] Moreover, the trial court reduced the conviction for Count I, robbery, from a
class B felony to a class C felony due to the fact that the weapon used to
enhance Count I from a class C felony to a class B felony was the same weapon
which formed the basis of Count II, possession of a firearm by a serious violent
felon. This reduction removed the requirement that the robbery was committed
while armed with a deadly weapon. See Ind. Code § 35-42-5-1 (2004)
(providing that robbery is a class B felony if it is committed while armed with a
deadly weapon). Even assuming that a double jeopardy concern existed under
the actual evidence test, any concern was removed by the reduction of Count I
from robbery as a class B felony to a class C felony.6 See Spears v. State, 735
N.E.2d 1161, 1166 (Ind. 2000) (holding that the remedy for double jeopardy
violations has routinely been to reduce or vacate one of the convictions), reh’g
denied.
[24] Hayden also argues that mere possession of a firearm or being armed with a
deadly weapon is not enough to impose multiple punishments and cites Nicoson
v. State, 938 N.E.2d 660 (Ind. 2010); and Cross v. State, 15 N.E.3d 569 (Ind.
2014). In Nicoson, the defendant argued that he was placed in double jeopardy
because the mere use of a firearm not only subjected him to the higher
6 We note that Hayden focuses his double jeopardy argument on Counts I and II. He does not allege that his convictions for Count III, escape, which merely alleged that Hayden fled from lawful detention, and Count V, resisting law enforcement as a class A misdemeanor for fleeing from Detective Gerardot violate double jeopardy principles. As noted, the record does not include the jury instructions. We cannot say that Hayden has argued or demonstrated that Counts III and V both relate to his act of running from Detective Gerardot or that he has met his burden of demonstrating double jeopardy with respect to these counts.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 13 of 19 sentencing range imposed for class B felonies but also subjected him to an
additional enhancement under Ind. Code § 35-50-2-11, which provided that the
State could seek to have a person who allegedly committed a certain offense
sentenced to an additional fixed term of imprisonment if the State could show
that the person knowingly or intentionally used a firearm in the commission of
the offense. 938 N.E.2d at 662-664. The Court stated that mere possession of a
firearm or being armed with a deadly weapon was not enough under the
statute. Id. at 665. In Cross, the defendant argued that the post-conviction court
violated Indiana double jeopardy principles by entering convictions and
imposing sentences for both carrying a handgun without a permit and an
enhancement of a dealing conviction based on possessing the same handgun.
15 N.E.3d at 571. The Court cited Nicoson and vacated the defendant’s
sentence imposed under the handgun enhancement charge. Id. at 573. Unlike
Nicoson and Cross, the trial court reduced the conviction from a class B felony to
a class C felony due to the fact that the weapon used to enhance Count I from a
class C felony to a class B felony was the same weapon which formed the basis
of Count II, possession of a firearm by a serious violent felon. We cannot say
that Nicoson or Cross require reversal.
B. Continuous Crime Doctrine
[25] The Indiana Supreme Court recently clarified the application of the continuous
crime doctrine. In Hines v. State, the Court disagreed with Buchanan v. State, 913
N.E.2d 712 (Ind. Ct. App. 2009), trans. denied, to the extent it stood for the
proposition that the continuous crime doctrine may be judicially extended to
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 14 of 19 two distinct criminal offenses. 30 N.E.3d at 1220. The Court held that the
continuous crime doctrine is a rule of statutory construction and common law
limited to situations where a defendant has been charged multiple times with
the same offense. Id. at 1219. The Court held that it “applies only where a
defendant has been charged multiple times with the same ‘continuous’ offense.”
Id. at 1220. The Court also held that the doctrine did not apply to the facts of
that case because the defendant was convicted of criminal confinement as a
class C felony and battery as a class D felony, and he was not convicted of
multiple charges of criminal confinement, nor multiple charges of battery. Id. at
1220-1221. The Court also observed that battery was not a crime for which all
of the elements necessary to impose criminal liability were also elements found
in criminal confinement or vice versa. Id. at 1221. The Court concluded that
criminal confinement and battery were two distinct chargeable crimes to which
the continuous crime doctrine did not apply. Id.
[26] Hayden asserts that the trial court’s order that some of his sentences be served
consecutive to each other violates the continuous crime doctrine. He concludes
by requesting that his sentences for Counts I and II be served concurrent with
each other and that the sentences for Counts III through VI be served
concurrent with each other. He does not cite authority that the continuous
crime doctrine addresses whether sentences should be served consecutively.
[27] He contends that “[i]mposition of consecutive sentences in Counts I and II is
also violative of double jeopardy principles in that the charged robbery and the
charged firearm possession were demonstrably part of a single episode of
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 15 of 19 criminal conduct.” As to whether Counts I and II were part of a single episode
of criminal conduct, we observe that the continuous crime doctrine is distinct
from the concept of an “episode of criminal conduct,” which applies under Ind.
Code § 35-50-1-2 to limit the aggregate term of consecutive sentences when the
convictions are not for crimes of violence and the “offenses or a connected
series of offenses . . . are closely related in time, place, and circumstance.” See
Seal v. State, (filed July 15, 2015), Ind. App. No. 48A02-1410-CR-775, slip op. at
11 n.3, trans. pending. Hayden does not cite Ind. Code § 35-50-1-2, and we
cannot say that the consecutive sentences of six years for Count I, robbery as a
class C felony, and fifteen years for Count II, unlawful possession of a firearm
by a serious violent felon as a class B felony, violate Ind. Code § 35-50-1-2. See
Ind. Code § 35-50-1-2 (providing that “except for crimes of violence, the total of
the consecutive terms of imprisonment, exclusive of terms of imprisonment
under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for
felony convictions arising out of an episode of criminal conduct shall not
exceed the advisory sentence for a felony which is one (1) class of felony higher
than the most serious of the felonies for which the person has been convicted”);
Ind. Code § 35-50-2-4 (providing that the advisory sentence for a class A felony
is thirty years).
[28] To the extent that Hayden raises the continuous crime doctrine to challenge his
convictions, we will address his arguments. With respect to Counts I and II,
Hayden was not convicted of multiple charges of robbery, nor multiple charges
of unlawful possession of a firearm by a serious violent felon. Robbery is not a
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 16 of 19 crime for which all of the elements necessary to impose criminal liability are
also elements found in unlawful possession of a firearm by a serious violent
felon or vice versa. Accordingly, we conclude that robbery and unlawful
possession of a firearm by a serious violent felon are two distinct chargeable
crimes to which the continuous crime doctrine does not apply. See Hines, 30
N.E.3d at 1221.
[29] Hayden also argues that the continuous crime doctrine applies to Count III,
escape as a class C felony, Count IV, intimidation as a class D felony, Count V,
resisting law enforcement as a class A misdemeanor, and Count VI, resisting
law enforcement as a class A misdemeanor. We note that Hayden was not
convicted of multiple charges of escape or intimidation, and he does not
develop an argument that the elements necessary to impose criminal liability for
escape, intimidation, or resisting law enforcement are the elements found in
another charge. Thus, we cannot say that the continuous crime doctrine applies
to the convictions for escape or intimidation.
[30] To the extent that Hayden was convicted of two counts of resisting law
enforcement as a class A misdemeanor, in Armstead v. State, 549 N.E.2d 400,
401 (Ind. Ct. App. 1990), we noted that the offense of resisting law enforcement
does not constitute a crime against the person. We further noted that the
offense is an interference with governmental operations constituting an offense
against public administration. 549 N.E.2d at 401. We stated that a person who
commits such an offense “harms the peace and dignity of the State of Indiana
and its law enforcement authority.” Id. We held, therefore, that the “harm
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 17 of 19 caused by one incident is the same regardless of the number of police officers
resisted. It is the act of resisting duly constituted authority which the statute
prohibits, not resisting individual representatives of that authority.” Id. We
noted that multiple violations of the statute occur when “more than one
incident occurs.” Id. at 402.
[31] Count V alleged that Hayden “did knowingly or intentionally flee from”
Detective Gerardot after Detective Gerardot ordered him to stop. Appellant’s
Appendix at 22. Count VI alleged that Hayden “did knowingly or intentionally
forcibly resist, obstruct or interfere with” Detective Gerardot. Id. at 23. The
record reveals that Detective Gerardot transported Hayden to the hospital and
opened the rear door of his vehicle when Hayden “took off running” and did
not comply with Detective Gerardot’s order to stop. Transcript at 271. At a
later time in the pursuit and another place, Detective Gerardot forcefully
removed Hayden from a woman’s car and Hayden struggled with officers.
Under the circumstances, we cannot say that the continuous crime doctrine
precludes the imposition of two convictions of resisting law enforcement as
class A misdemeanors because he was not charged with the same continuous
offense. See Williams v. State, 755 N.E.2d 1183, 1186 (Ind. Ct. App. 2001)
(holding that the defendant perpetrated two separate offenses of resisting law
enforcement and the trial court properly entered convictions for both counts
where the defendant fled from officers after being commanded to stop and also
forcibly resisted those officers when they caught up with him and inflicted
bodily injury upon them); see also Arthur v. State, 824 N.E.2d 383, 386 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 18 of 19 App. 2005) (recognizing that “resisting law enforcement by fleeing is a different
‘species’ from resisting law enforcement by force”), trans. denied, disapproved on
other grounds by Brock v. State, 955 N.E.2d 195 (Ind. 2011), cert. denied, 132 S. Ct.
1801 (2012).
Conclusion
[32] For the foregoing reasons, we affirm Hayden’s convictions and sentence.
[33] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1501-CR-9 | September 15, 2015 Page 19 of 19