MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 27 2018, 10:48 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Katherine M. Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lewis Klayton Kratzer, February 27, 2018 Appellant-Defendant, Court of Appeals Case No. 61A01-1707-CR-1680 v. Appeal from the Parke Circuit Court State of Indiana, The Honorable Samuel A. Swaim, Appellee-Plaintiff. Judge Trial Court Cause No. 61C01-1601-F3-11
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 1 of 6 Case Summary [1] Lewis Klayton Kratzer (“Kratzer”) was convicted of Attempted Robbery, as a
Level 3 felony,1 and Unlawful Possession of a Firearm by a Serious Violent
Felon (“SVF”), a Level 4 felony.2 Kratzer presents the sole issue of whether the
Attempted Robbery conviction must be reduced to a Level 5 felony to avoid a
double jeopardy violation,3 as the Attempted Robbery enhancement and the
SVF conviction were based upon the same possession. We affirm in part,
reverse in part, and remand with instructions.
Facts and Procedural History [2] On January 12, 2016, a man later identified as Kratzer entered the Montezuma
Quick Stop in Parke County, pointed a handgun at the clerk, and demanded
money. When the clerk called out to her supervisor, Kratzer left the store.
[3] Later that night, Terre Haute police officers were dispatched to investigate a
report of a suspicious vehicle at the Red Roof Inn. As the officers approached
the vehicle, the driver disregarded commands to stop and drove off.
1 Ind. Code § 35-42-5-1. 2 I.C. § 35-47-4-5(c). 3 Kratzer confines his argument to the Indiana Constitution and common law. The Fifth Amendment to the United States Constitution provides “[n]o person shall be … subject for the same offense to be twice put in jeopardy of life or limb[.] Under the Fifth Amendment, a defendant’s conviction upon multiple offenses will not be precluded by double jeopardy principles if each statutory offense requires proof of a fact the other does not. Blockburger v. United States, 284 U.S. 299, 302 (1932). Kratzer concedes that his convictions do not violate the Blockburger test.
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 2 of 6 Eventually, the vehicle stopped and the driver and passenger both fled on foot.
They were apprehended and arrested. Kratzer, the passenger, was wearing
clothing like that worn by the would-be robber of the Montezuma Quick Stop.
Inside the vehicle, there was a handgun.
[4] Kratzer was charged with Attempted Robbery, as a Level 3 felony, and
Unlawful Possession of a Firearm by a SVF, a Level 4 felony. A jury convicted
Kratzer as charged; he received consecutive sentences of thirteen years and
eight years, respectively. He now appeals.
Discussion and Decision [5] To convict Kratzer of Attempted Robbery, the State was required to establish,
beyond a reasonable doubt, that Kratzer engaged in conduct constituting a
substantial step toward commission of the crime of Robbery. I.C. § 35-41-5-1.
Robbery, as a Level 5 offense, is committed when one knowingly or
intentionally takes property from another person by using or threating use of
force or placing the person in fear. I.C. § 35-42-5-1. To elevate the offense to a
Level 3 felony, as charged, the State was required to establish that Kratzer was
armed with a deadly weapon. To convict Kratzer of Unlawful Possession of a
Firearm by a SVF, the State was required to establish, beyond a reasonable
doubt, that Kratzer, a serious violent felon, knowingly or intentionally
possessed a firearm. I.C. § 35-47-4-5.
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 3 of 6 [6] Article 1, Section 14 of the Indiana Constitution states, “[n]o person shall be
put in jeopardy twice for the same offense.” Two offenses are the “same
offense” in violation of Article 1, Section 14, if, with respect to either the
statutory elements of the challenged offenses or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense. Richardson v. State, 717
N.E.2d 32, 49-50 (Ind. 1999). To show that two challenged offenses are the
“same offense” in a claim of double jeopardy, a defendant must demonstrate 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. at 53.
[7] Additionally, ‘“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)). “These rules are sometimes referred to as Justice
Sullivan’s categories because he first enumerated them in his concurring
opinion in Richardson.” Zieman v. State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013).
[8] One such category prohibits “[c]onviction and punishment for 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.” Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring). This
category is applicable in situations where the behavior supporting a conviction
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 4 of 6 for one crime is the same behavior used to enhance a conviction for a separate
crime. See id. Thus, if we determine that Kratzer’s offense of Attempted
Robbery was enhanced based upon the same behavior or harm that is the basis
of his Unlawful Possession of a Firearm by a SVF, the enhancement and
separate conviction cannot both stand. In making this determination, we apply
the same “reasonable possibility” standard applicable under the actual evidence
test of Richardson. Zieman, 990 N.E.2d at 62.
[9] Kratzer’s trial was bifurcated. During the SVF phase, the State moved to
incorporate all the evidence from the first phase and submitted a certified
document relative to Kratzer’s prior felony conviction. Thereafter, the
prosecuting attorney presented the following argument to the jury:
Just briefly, Judge. No different from the last segment of the trial. Start with all the give me’s in this case it’s pretty easy. But we’ll go from one, two, three, four. The defendant. You’ve already pretty much decided that by your prior verdict.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 27 2018, 10:48 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Katherine M. Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lewis Klayton Kratzer, February 27, 2018 Appellant-Defendant, Court of Appeals Case No. 61A01-1707-CR-1680 v. Appeal from the Parke Circuit Court State of Indiana, The Honorable Samuel A. Swaim, Appellee-Plaintiff. Judge Trial Court Cause No. 61C01-1601-F3-11
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 1 of 6 Case Summary [1] Lewis Klayton Kratzer (“Kratzer”) was convicted of Attempted Robbery, as a
Level 3 felony,1 and Unlawful Possession of a Firearm by a Serious Violent
Felon (“SVF”), a Level 4 felony.2 Kratzer presents the sole issue of whether the
Attempted Robbery conviction must be reduced to a Level 5 felony to avoid a
double jeopardy violation,3 as the Attempted Robbery enhancement and the
SVF conviction were based upon the same possession. We affirm in part,
reverse in part, and remand with instructions.
Facts and Procedural History [2] On January 12, 2016, a man later identified as Kratzer entered the Montezuma
Quick Stop in Parke County, pointed a handgun at the clerk, and demanded
money. When the clerk called out to her supervisor, Kratzer left the store.
[3] Later that night, Terre Haute police officers were dispatched to investigate a
report of a suspicious vehicle at the Red Roof Inn. As the officers approached
the vehicle, the driver disregarded commands to stop and drove off.
1 Ind. Code § 35-42-5-1. 2 I.C. § 35-47-4-5(c). 3 Kratzer confines his argument to the Indiana Constitution and common law. The Fifth Amendment to the United States Constitution provides “[n]o person shall be … subject for the same offense to be twice put in jeopardy of life or limb[.] Under the Fifth Amendment, a defendant’s conviction upon multiple offenses will not be precluded by double jeopardy principles if each statutory offense requires proof of a fact the other does not. Blockburger v. United States, 284 U.S. 299, 302 (1932). Kratzer concedes that his convictions do not violate the Blockburger test.
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 2 of 6 Eventually, the vehicle stopped and the driver and passenger both fled on foot.
They were apprehended and arrested. Kratzer, the passenger, was wearing
clothing like that worn by the would-be robber of the Montezuma Quick Stop.
Inside the vehicle, there was a handgun.
[4] Kratzer was charged with Attempted Robbery, as a Level 3 felony, and
Unlawful Possession of a Firearm by a SVF, a Level 4 felony. A jury convicted
Kratzer as charged; he received consecutive sentences of thirteen years and
eight years, respectively. He now appeals.
Discussion and Decision [5] To convict Kratzer of Attempted Robbery, the State was required to establish,
beyond a reasonable doubt, that Kratzer engaged in conduct constituting a
substantial step toward commission of the crime of Robbery. I.C. § 35-41-5-1.
Robbery, as a Level 5 offense, is committed when one knowingly or
intentionally takes property from another person by using or threating use of
force or placing the person in fear. I.C. § 35-42-5-1. To elevate the offense to a
Level 3 felony, as charged, the State was required to establish that Kratzer was
armed with a deadly weapon. To convict Kratzer of Unlawful Possession of a
Firearm by a SVF, the State was required to establish, beyond a reasonable
doubt, that Kratzer, a serious violent felon, knowingly or intentionally
possessed a firearm. I.C. § 35-47-4-5.
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 3 of 6 [6] Article 1, Section 14 of the Indiana Constitution states, “[n]o person shall be
put in jeopardy twice for the same offense.” Two offenses are the “same
offense” in violation of Article 1, Section 14, if, with respect to either the
statutory elements of the challenged offenses or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense. Richardson v. State, 717
N.E.2d 32, 49-50 (Ind. 1999). To show that two challenged offenses are the
“same offense” in a claim of double jeopardy, a defendant must demonstrate 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. at 53.
[7] Additionally, ‘“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)). “These rules are sometimes referred to as Justice
Sullivan’s categories because he first enumerated them in his concurring
opinion in Richardson.” Zieman v. State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013).
[8] One such category prohibits “[c]onviction and punishment for 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.” Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring). This
category is applicable in situations where the behavior supporting a conviction
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 4 of 6 for one crime is the same behavior used to enhance a conviction for a separate
crime. See id. Thus, if we determine that Kratzer’s offense of Attempted
Robbery was enhanced based upon the same behavior or harm that is the basis
of his Unlawful Possession of a Firearm by a SVF, the enhancement and
separate conviction cannot both stand. In making this determination, we apply
the same “reasonable possibility” standard applicable under the actual evidence
test of Richardson. Zieman, 990 N.E.2d at 62.
[9] Kratzer’s trial was bifurcated. During the SVF phase, the State moved to
incorporate all the evidence from the first phase and submitted a certified
document relative to Kratzer’s prior felony conviction. Thereafter, the
prosecuting attorney presented the following argument to the jury:
Just briefly, Judge. No different from the last segment of the trial. Start with all the give me’s in this case it’s pretty easy. But we’ll go from one, two, three, four. The defendant. You’ve already pretty much decided that by your prior verdict. Did knowingly and possessed [sic] a firearm, which you’ve already determined by the Armed Robbery conviction with a Deadly Weapon. And he is admitting and stipulating too that he has the prior Residential Burglary conviction which qualifies him under that particular code section. Nothing further, Judge.
(Tr. Vol. II, pg. 218.)
[10] It is apparent that the prosecuting attorney invited the jury to rely on evidence
that Kratzer had a gun during the attempted robbery to convict Kratzer of
Possession of a Firearm by a SVF. There is a reasonable possibility that the
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 5 of 6 jury did so. The same conduct cannot permissibly support both the
enhancement and form the basis of a separate crime.
[11] The proper remedy for a double jeopardy violation was explained in Zieman:
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. In the alternative, a reviewing court may vacate one of the convictions to eliminate a double jeopardy violation. In making that determination, we must be mindful of the penal consequences that the trial court found appropriate.
990 N.E.2d at 64 (quoting McCann v. State, 854 N.E.2d 905, 915 (Ind. Ct. App.
2006)). In this case, the violation is remedied by vacating the enhancement of
Kratzer’s Attempted Robbery conviction.
Conclusion [12] We remand with instructions to the trial court to reduce Kratzer’s Attempted
Robbery conviction from a Level 3 felony to a Level 5 felony and sentence him
accordingly.
[13] Affirmed in part, reversed in part, and remanded with instructions.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 61A01-1707-CR-1680 | February 27, 2018 Page 6 of 6