MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 17 2015, 8:19 am 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 Donald R. Shuler Gregory F. Zoeller Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Montrail Williams, December 17, 2015 Appellant-Defendant, Court of Appeals Case No. 20A04-1505-CR-406 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Plaintiff. Shewmaker, Judge Trial Court Cause No. 20C01-1311-FB-132
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 1 of 24 [1] Appellant-Defendant Montrail Williams, together with four other individuals,
planned a burglary, which they completed on the morning of November 4,
2013. During the commission of the burglary, Williams and his cohorts entered
the victims’ residence, forced two of the victims to kneel on the ground at
gunpoint, tied another to a chair, and took property belonging to the victims.
Williams was subsequently convicted of Class C felony robbery, Class B felony
burglary, Class C felony criminal confinement, Class B felony conspiracy to
commit burglary, and Class B felony possession of a firearm by a serious violent
felon. He was sentenced to an aggregate term of sixty-eight years, with fifty-five
years executed and thirteen years suspended to probation.
[2] On appeal, Williams contends that the evidence is insufficient to sustain his
convictions, that his convictions for burglary and conspiracy to commit
burglary violate the prohibitions against double jeopardy, and that his sentence
is inappropriate. We affirm.
Facts and Procedural History [3] In November of 2013, Cynthia Contreras lived in a mobile home in Goshen
with her husband, Jose; her daughter, Brenda Fernandez; and her daughter-in-
law, Thaly Silvestre. Three minor children also lived in the mobile home.
[4] On the morning of November 4, 2013, Contreras’s husband left for work at
approximately 5:20. After Contreras’s husband left for work, Williams,
Antoine McDuffie, Davon Crenshaw, and Armando Gonzalez, Jr. acted on an
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 2 of 24 agreement to break into the mobile home. Upon breaking into the mobile
home, the men concealed their identities by wearing “hoodie[s]”, masks on
their faces, and gloves on their hands. Tr. p. 361. They were armed with at
least three guns and carried flashlights. At the time of the break-in, the mobile
home was occupied by Contreras, Fernandez, and the three children. Silvestre,
who was pregnant, arrived home during the break-in.
[5] The men forced Contreras and Fernandez to kneel down at gunpoint. The men
asked Contreras for “gold and dope.” Tr. p. 362. When Contreras indicated
that the women did not have any gold or dope the men got upset and told
Contreras that they thought she was lying. At some point, the men tied up
Silvestre, who was approximately seven months pregnant. The men also
threatened to kill everyone in the trailer if anyone called the police. The
women were all scared for their safety as well as the safety of the children.
[6] Upon leaving the mobile home, the men stole an X-Box gaming system, a few
X-Box games, $350.00 from Contreras’s purse, and Contreras’s pain
medication. Once certain the men were gone, Silvestre freed herself.
Sometime later, the women called the police.
[7] Fernandez subsequently told the police that she thought she recognized the
voice of one of the intruders as Gonzalez, the boyfriend of someone with whom
she worked. Fernandez identified where her co-worker lived with Gonzalez.
Fernandez also informed police that she had previously seen Gonzalez with
Crenshaw.
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 3 of 24 [8] When members of the Goshen Police Department arrived at the apartment
identified by Fernandez, they encountered Williams, Crenshaw, and Matthew
Allen. The police were eventually allowed inside the apartment and, after
receiving a search warrant, recovered the X-Box gaming system, the X-Box
games, and a pill bottle containing pills. Officers also recovered two bags
containing a bandana, gloves, dark clothing, a ski mask, and three loaded
handguns. Williams’s DNA was subsequently recovered from the ski mask.
[9] Police later encountered McDuffie, who was carrying a flashlight and whose
shoes matched the shoe pattern found at the crime scene. When questioned
about the robbery, McDuffie stated, “Man, I just drove.” Tr. p. 159. McDuffie
indicated to the investigating officer that he, Crenshaw, Williams, and
Gonzalez planned and committed the burglary and robbery. Gonzalez
subsequently admitted to participating in the burglary and robbery.
[10] In addition, at trial, Allen testified that he and the other men had been “hanging
out” at Gonzalez’s apartment drinking and smoking marijuana on the night
before the crime was committed. Tr. p. 838. Allen further testified that while
drinking and smoking marijuana, he had heard Gonzalez, McDuffie, and the
other men talk about breaking into and robbing a home. Allen also observed
the men passing around three handguns. Allen later observed the men dress in
dark jackets and hooded sweatshirts and leave the apartment at approximately
4:30 a.m. on November 4, 2013.
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 4 of 24 [11] On November 12, 2013, Appellee-Plaintiff the State of Indiana (the “State”)
charged Williams with Count I, Class B felony robbery while armed with a
deadly weapon; Count II, Class B felony burglary; Count III, Class B felony
criminal confinement; Count IV, Class B felony conspiracy to commit burglary;
and Count V, Class B felony unlawful possession of a firearm by a serious
violent felon. Williams’s jury trial began on February 2, 2015, after which the
jury found Williams guilty of Counts I through IV. Williams waived his right
to a jury trial on Count V. On March 2, 2015, the trial court found Williams
guilty of Count V.
[12] On April 16, 2015, Williams filed a petition asking the trial court to reconsider
its guilty finding on Count V. The trial court subsequently denied Williams’s
petition. The trial court also entered an amended judgment, reducing
Williams’s convictions in Counts I and III from Class B felonies to Class C
felonies. The amended judgment reflected that Williams was convicted of
Count I, Class C felony robbery; Count II, Class B felony burglary; Count III,
Class C felony Criminal Confinement; Count IV, Class B felony conspiracy to
commit burglary; and Count V, Class B felony unlawful possession of a firearm
by a serious violent offender.
[13] In sentencing Williams, the trial court found the following mitigating factors:
Williams’s age, the statements made by Williams and Williams’s counsel, and
Williams’s good conduct during the course of the trial in relation to one of
Williams’s co-defendants. The trial court also found the following aggravating
factors: Williams’s criminal history; the unsuccessful nature of prior attempts to
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 5 of 24 rehabilitate Williams; the fact that there were multiple crimes committed by
multiple perpetrators against multiple victims, one of the victims was pregnant,
and three of the victims were children; and Williams is considered a high risk to
reoffend. Finding that the aggravating factors outweighed the mitigating
factors, the trial court imposed the following sentence: Count I, eight years,
with seven years executed and one year suspended to probation; Count II,
twenty years, with sixteen years executed and four years suspended to
probation; Count III, eight years, with seven years executed and one year
suspended to probation; Count IV, twenty years, with sixteen years executed
and four years suspended to probation; and Count V, twenty years, with sixteen
years executed and four years suspended to probation. The trial court ordered
that the sentences for each count should run consecutively for an aggregate
sentence of sixty-eight years, with fifty-five years executed and thirteen years
suspended to probation. The trial court also ordered that Williams’s sentence
in the instant matter should be served consecutively to Williams’s sentence in
Cause Number 20D02-1010-FB-25, for which Williams had been on probation
when he committed the underlying offenses. This appeal follows.
Discussion and Decision I. Sufficiency of the Evidence [14] Williams contends that the evidence is insufficient to sustain his convictions for
robbery, burglary, criminal confinement, conspiracy to commit burglary, and
unlawful possession of a firearm by a serious violent felon.
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 6 of 24 When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses, Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002),
as the jury, acting as the trier-of-fact, is “‘free to believe whomever they wish.’”
Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008) (quoting McClendon v.
State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996)).
[15] “[A] conviction may be based purely on circumstantial evidence.” Hayes v.
State, 876 N.E.2d 373, 375 (Ind. Ct. App. 2007) (citing Moore v. State, 652
N.E.2d 53, 55 (Ind. 1995)), trans. denied. “‘On appeal, the circumstantial
evidence need not overcome every reasonable hypothesis of innocence.’” Id.
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 7 of 24 (quoting Moore, 652 N.E.2d at 55). “It is enough if an inference reasonably
tending to support the conviction can be drawn from the circumstantial
evidence.” Id. (citing Moore, 652 N.E.2d at 55). Thus, where circumstantial
evidence is used to establish guilt, “‘the question for the reviewing court is
whether reasonable minds could reach the inferences drawn by the jury; if so,
there is sufficient evidence.’” Klaff, 884 N.E.2d at 274-75 (quoting Maxwell v.
State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000)).
[16] Further, Indiana Code section 35-41-2-4 provides that “[a] person who
knowingly or intentionally aids, induces, or causes another to commit an
offense commits that offense” himself.
In determining whether there was sufficient evidence for purposes of accomplice liability, we consider such factors as: 1) presence at the scene of the crime; 2) companionship with another at the scene of the crime; 3) failure to oppose commission of the crime; and 4) course of conduct before, during, and after occurrence of the crime. [ ] A defendant’s mere presence at the crime scene, or lack of opposition to a crime, standing alone, is insufficient to establish accomplice liability. Tobar v. State, 740 N.E.2d 109, 112 (Ind. 2000). Flight shows consciousness of guilt. State v. Torphy, 217 Ind. 383, 387-88, 28 N.E.2d 70, 72 (1940).
These factors may be considered in conjunction with a defendant’s course of conduct before, during, and after the crime, and a defendant’s companionship with the one who commits the crime. Id. Furthermore, accomplice liability applies to the contemplated offense and all acts that are a probable and natural consequence of the concerted action. Wieland v. State, 736 N.E.2d 1198, 1202 (Ind. 2000). Moreover, an accomplice is
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 8 of 24 equally culpable as the one who commits the actual crime. Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000).
Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. denied. It is not
necessary for Williams to have participated in every element of the crime under
a theory of accomplice liability. Id. (citing Bruno v. State, 774 N.E.2d 880, 882
(Ind. 2002)).
A. Robbery [17] In November of 2013, Indiana Code section 35-42-5-1 provided as follows: “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.” Thus, in order to convict Williams of robbery, the State was required
to prove that Williams knowing or intentionally took property from the victims
by threating the use of force or by putting the victims in fear.
[18] In arguing that the evidence is insufficient to sustain his robbery conviction,
Williams claims that because none of the victims identified him as one of the
perpetrators, the State failed to prove his involvement in the robbery beyond a
reasonable doubt, but instead only proved that there was a possibility that he
participated in the robbery. We disagree.
[19] Allen testified that on the night before the robbery, he was “hanging out” with
Gonzalez, Williams, Crenshaw, and McDuffie and heard the men discussing a
plan to break into and rob a home. Tr. p. 838. Allen also testified that he
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 9 of 24 observed the men passing around three handguns and that he later observed
Gonzalez, Williams, Crenshaw, and McDuffie dress in dark jackets and
hooded sweatshirts before leaving the apartment at approximately 4:30 a.m. on
November 4, 2013.
[20] The State presented evidence that the perpetrators were armed with at least
three loaded handguns, wore dark clothing, and covered their faces with masks
during the commission of the crimes. The perpetrators forced two of the
victims to kneel at gunpoint and tied another to a chair. They put the victims in
fear for their safety as they threatened to come back and kill everyone if anyone
called the cops. Upon leaving the residence, the perpetrators took an X-Box
gaming system, a few X-Box games, $350.00 from Contreras’s purse, and
Contreras’s pain medication. Williams’s DNA was subsequently recovered
from a black ski mask which was recovered from Gonzalez’s apartment with
the stolen property and other dark clothing. When, during the course of their
investigation, police arrived at the apartment, Williams was present and was
playing games on the stolen X-Box gaming system. One of the victims
informed police that she recognized one of the perpetrators as Gonzalez.
[21] The above-stated evidence is sufficient to prove that Williams participated in
the robbery. The State presented both circumstantial evidence and DNA
evidence to prove Williams’s participation. Upon review, we conclude that the
DNA evidence considered with Williams’s actions prior to the crime; his
actions after the commission of the crime; and his companionship, both before
and after commission of the robbery, with individuals who admitted to
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 10 of 24 committing the crime is sufficient to prove that Williams was an active
participant in the commission of the robbery. Furthermore, even if the evidence
were to be found to fall short of proving that Williams was an active participant
in the commission of the robbery, Williams can nonetheless be held culpable
because the evidence, at the very least, proves that he was an accomplice to the
commission of the robbery. See Tuggle, 9 N.E.3d at 736.
B. Burglary [22] In November of 2013, Indiana Code section 35-43-2-1 provided as follows: “A
person who breaks and enters the building or structure of another person, with
intent to commit a felony in it, commits burglary, a Class C felony. However,
the offense is: (1) a Class B felony if: (A) it is committed while armed with a
deadly weapon or (B) the building or structure is a: (i) dwelling; or (ii) structure
used for religious worship[.]” Thus, in order to convict Williams of burglary,
the State was required to prove that Williams broke into the building of another
with the intent to commit a felony, i.e., robbery, therein and that Williams was
either armed with a deadly weapon, i.e., a handgun, or that the building was a
dwelling.
[23] In arguing that the evidence is insufficient to sustain his burglary conviction,
Williams again claims that because none of the victims identified him as one of
the perpetrators, the State failed to prove his involvement in the burglary
beyond a reasonable doubt, but instead only proved that there was a possibility
that he participated in the burglary. Again, we disagree. For the same reasons
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 11 of 24 discussed above, we conclude that the evidence presented at trial is sufficient to
sustain Williams’s burglary conviction.
C. Criminal Confinement [24] In November of 2013, Indiana Code section 35-42-3-3 provided as follows:
(a) A person who knowingly or intentionally:
(1) confines another person without the other person’s consent
****
commits criminal confinement.…
(b) The offense of criminal confinement defined in subsection (a) is:
(1) a Class C felony if:
(A) the person confined or removed is less than fourteen (14) years of age and is not the confining or removing person’s child;
(B) it is committed by using a vehicle; or
(C) it results in bodily injury to a person other than the confining or removing person; and
(2) a Class B felony if it:
(A) is committed while armed with a deadly weapon[.]
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 12 of 24 Although the jury found Williams guilty of Class B felony criminal
confinement, the trial court entered a judgment of conviction for Class C felony
criminal confinement. In order to prove that Williams committed criminal
confinement as a Class C felony, the State was required to prove that Williams
knowingly or intentionally confined a person under the age of fourteen without
the other person’s consent and that the person confined was not Williams’s
child.
[25] In arguing that the evidence is insufficient to sustain his conviction for criminal
confinement, Williams again claims that because none of the victims identified
him as one of the perpetrators, the State failed to prove his involvement in the
confinement beyond a reasonable doubt, but instead only proved that there was
a possibility that he participated in the confinement. Again, we disagree.
[26] The State presented evidence that three of the victims were children under the
age of fourteen. Nothing in the record suggests that any of the children had any
relation to Williams. Thus, for the same reasons discussed above, we conclude
that the evidence presented at trial is sufficient to sustain Williams’s conviction
for criminal confinement.
D. Conspiracy to Commit Burglary [27] In November of 2013, Indiana Code section 35-41-5-2 provided that “A person
conspires to commit a felony when, with intent to commit the felony, he agrees
with another person to commit the felony. A conspiracy to commit a felony is
a felony of the same class as the underlying felony.” Indiana Code section 35-
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 13 of 24 41-5-2 further provided that “The state must allege and prove that either the
person or the person with whom he agreed performed an overt act in
furtherance of the agreement.” Here, the State alleged that Williams conspired
to commit Class B felony burglary. As such, the State was required to prove
that Williams agreed to commit the crime of burglary, as is defined above, and
that Williams committed an overt act in furtherance of the agreement.
[28] In arguing that the evidence is insufficient to sustain his conviction for
conspiracy to commit burglary, Williams claims that the State failed to present
evidence of any agreement to commit the burglary or an overt act committed by
Williams in furtherance of the agreement. We disagree.
[29] The State alleged that Williams committed the overt act of masking his face.
The recovery of Williams’s DNA recovered from the ski mask found with the
other dark clothing and some of the property taken from the victims is evidence
that Williams did, in fact, commit the overt act of masking his face. The State
also presented evidence that the men came up with the plan, i.e., the agreement,
to commit the burglary on the night before they committed it. Thus, for the
same reasons discussed above, we conclude that the evidence presented at trial
is sufficient to sustain Williams’s conviction for conspiracy to commit burglary.
E. Possession of a Firearm by a Serious Violent Felon [30] In November of 2013, Indiana Code section 35-47-4-5(c) provides that “A
serious violent felon who knowingly or intentionally possesses a firearm
commits unlawful possession of a firearm by a serious violent felon.” Indiana
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 14 of 24 Code section 37-47-4-5(a) defined a “serious violent felon” as one who has been
convicted of committing a serious violent felony or attempting to commit a
serious violent felony in either Indiana or any other jurisdiction “in which the
elements of the crime for which the conviction was entered are substantially
similar to the elements of a serious violent felony.” Thus, in order to prove that
Williams committed possession of a firearm by a serious violent felon, the State
was required to prove that Williams possessed a firearm after having been
convicted of committing a serious violent felony.
[31] Williams does not contest the fact that he has previously been convicted of a
serious violent felony. Instead, in arguing that the evidence is insufficient to
sustain his conviction for criminal confinement, Williams again claims that
because none of the victims identified him as one of the perpetrators, the State
failed to prove his involvement in the break-in beyond a reasonable doubt.
Williams alternatively argues that because there were five alleged perpetrators
but only three alleged firearms, the State presented nothing more than
speculation as to which of the men possessed the firearms. We disagree.
[32] The State presented evidence that the men were in possession of three handguns
on the night before the commission of the burglary. The victims testified to
observing at least three handguns during the commission of the crime. Three
handguns matching the descriptions of these guns were recovered from the
perpetrators and Gonzalez’s apartment after the commission of the crime.
Further, Gonzalez told investing officers that he was not armed during the
robbery, and McDuffie told investigating officers that he “just drove.” Tr. p.
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 15 of 24 1059. These statements support the inference that of the five alleged
perpetrators, Williams was one of the three who were armed with a handgun.
[33] Again, because a conviction may be based purely on circumstantial evidence,
the jury, acting as the trier of fact, is free to believe the witnesses as it sees fit,
and we, acting as the reviewing court, will not reweigh the evidence or assess
the credibility of the witnesses, we conclude that the evidence is sufficient to
sustain Williams’s conviction for possession of a firearm by a serious violent
felon. See Stewart, 768 N.E.2d at 435; Klaff, 884 N.E.2d at 274; Hayes, 876
N.E.2d at 375.
II. Double Jeopardy [34] Williams also contends that his convictions for Class B felony burglary and
Class B felony conspiracy to commit burglary violate Indiana’s prohibitions
against double jeopardy. “Whether convictions violate double jeopardy is a
pure question of law, which we review de novo.” Ellis v. State, 29 N.E.3d 792,
797 (Ind. Ct. App. 2015), trans. denied. 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,
49 (Ind. 1999), our supreme court held that two or more offenses are the ‘same
offense’ in violation of Article 1, 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
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 16 of 24 establish the essential elements of another challenged offense.” James v. State,
953 N.E.2d 1191, 1194 (Ind. Ct. App. 2011).
[35] In the instant matter, Williams makes no claim under the statutory elements
portion of the Richardson test. Instead, he claims that his convictions constitute
double jeopardy under the “actual evidence” portion.
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. [Richardson, 717 N.E.2d at 53]. 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. “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.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).
Our precedents “instruct that a ‘reasonable possibility’ that the jury used the same facts to reach two convictions requires substantially more than a logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable possibility standard “fairly implements the protections of the Indiana Double Jeopardy Clause and also permits convictions for multiple offenses committed in a protracted criminal episode when the case is prosecuted in a manner that insures that multiple guilty verdicts are not based on the same evidentiary facts.” Richardson, 717 N.E.2d at 53 n. 46. The existence of a “‘reasonable possibility’ turns on a practical assessment of
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 17 of 24 whether the [fact finder] may have latched on to exactly the same facts for both convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence from the jury’s perspective and may consider the charging information, jury instructions, and arguments of counsel. Id. at 1234.
Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (brackets in original).
[36] Again, Williams argues on appeal that his convictions for burglary and
conspiracy to commit burglary violate the actual evidence test set forth in
Richardson. In making this argument, Williams acknowledges that the jury
instruction for the conspiracy charge directs the jury to consider the masking of
faces as the overt act in furtherance of the conspiracy. Williams argues,
however, that “[b]y tying the conspiracy to commit burglary charge to the act of
masking, once the jury concluded that [Williams] had participated in the
burglary, it had no choice but to also find him guilty of the conspiracy to
commit burglary charge.” Appellant’s Br. p. 19. Thus, Williams asserts that
“[t]his results in a reasonable possibility that the jury relied on the same facts for
both the burglary and conspiracy to commit burglary convictions, because the
conspiracy to commit burglary offense cannot be established without
considering the facts of the burglary itself.” Appellant’s Br. p. 19.
[37] We disagree and observe that the Indiana Supreme Court has held that “a
defendant may be convicted of both conspiracy to commit a felony and
commission of the underlying felony.” Johnson v. State, 749 N.E.2d 1103, 1108
(Ind. 2001) (citing Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied). A
double jeopardy violation occurs only where the same evidence used to prove Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 18 of 24 the overt act committed in furtherance of the conspiracy also proves the
commission of the underlying crime. Id. (citing Turnley v. State, 725 N.E.2d 87,
91 (Ind. 2000); Griffin, 717 N.E.2d at 89), emphasis added.
[38] Here, both the charging information and jury instructions specified that the
overt act used to prove the conspiracy charge was the masking of faces. The
charging information relating to the burglary charge reads as follows:
The undersigned affiant swears that on or about the 4th day of November, 2013, at the County of Elkhart, State of Indiana, [Williams], [Allen], [McDuffie], [Crenshaw], and [Gonzalez], and they and each of them, did break and enter the dwelling of another person, to wit: Brenda Fernandez, with the intent to commit a felony therein, to wit: Theft, that is to knowingly or intentionally exert unauthorized control over property of another person with the intent to deprive the other person of any part of its value or use; all of which is contrary to the form of I.C. § 35- 43-2-1(1)(B)(i) & § 35-41-2-4; contrary to the form of the statute in such cases made and provided; and, against the peace and dignity of the State of Indiana.
Appellant’s App. p. 16. The charging information relating to the conspiracy to
commit burglary charge reads as follows:
The undersigned affiant swears that on or about the 4th day of November, 2013, at the County of Elkhart, State of Indiana, one [Williams] did, with the intent to commit a felony, agree with other persons, to wit: [Crenshaw], [Allen], [McDuffie], and [Gonzalez], to commit the felony Burglary, defined in I.C. § 35- 43-2-1(1), as to break and enter the dwelling of another person with intent to commit a felony therein, and did engage in conduct constituting an overt act toward said Burglary by masking their faces; all of which is contrary to the form of I.C. § Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 19 of 24 35-41-5-2(a) & § 35-43-2-1(1)(B)(i); contrary to the form of the statute in such cases made and provided; and, against the peace and dignity of the State of Indiana.
Appellant’s App. p. 16. The final jury instructions also reflected that the overt
act relied on by the State to prove the conspiracy charge was Williams’s act of
masking his face. As such, the record demonstrates that the conspiracy to
commit robbery was alleged to have been consummated when Williams
masked his face and the robbery was alleged to have taken place when Williams
and his cohorts took property belonging to the victims from the victims’ home.
The evidence relating to the masking of faces was separate evidence of that
proffered to prove the burglary charge itself.
[39] We find the facts of the instant matter to be similar to the facts presented in our
opinion in James v. State, 953 N.E.2d 1191 (Ind. Ct. App. 2011). In James, we
concluded that the defendant’s convictions for burglary and conspiracy to
commit burglary did not violate the actual evidence test of the Indiana
prohibitions against double jeopardy because the conspiracy was alleged to
have been consummated when the defendant covered his face and the robbery
charge was alleged to have taken place when the defendant and his cohorts took
property from the victims’ home. Id. at 1194-95. We also find that this case is
easily distinguishable from the Indiana Supreme Court’s decision in Johnson. In
Johnson, neither the charging information nor the final jury instructions
contained any mention of what overt acts the State relied upon in proving the
conspiracy charge. 749 N.E.2d at 1109. The Indiana Supreme Court found
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 20 of 24 that in that case, there was a reasonable possibility that the evidence proving
conspiracy to commit burglary also established the essential elements of the
burglary charge. Id.
[40] Similar to our conclusion in James, we conclude in the instant matter that there
is not a reasonable possibility that the jury relied on all of the same evidence in
finding Williams guilty of both burglary and conspiracy to commit burglary.
The record clearly demonstrates that the State relied upon evidence proving that
Williams masked his face to prove that he committed the overt act necessary to
prove the conspiracy charge. This evidence was not necessary to prove any
element of the burglary charge. As such, we conclude that Williams’s
convictions for both Class B felony burglary and Class B felony conspiracy to
commit burglary do not violate the prohibitions against double jeopardy.
III. Appropriateness of Sentence [41] Again, the trial court sentenced Williams to an aggregate term of sixty-eight
years, with fifty-five years executed and 13 years suspended to probation.
Williams contends on appeal that his sentence is inappropriate in light of the
nature of his offenses and his character. Indiana Appellate Rule 7(B) provides
that “The Court may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” In analyzing such claims, we “‘concentrate less on comparing the
facts of [the case at issue] to others, whether real or hypothetical, and more on
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 21 of 24 focusing on the nature, extent, and depravity of the offense for which the
defendant is being sentenced, and what it reveals about the defendant’s
character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The
defendant bears the burden of persuading us that his sentence is inappropriate.
Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[42] With respect to the nature of Williams’s offenses, the record demonstrates that
Williams and the other men burgled the residence of Contreras and her family.
While in the residence, the men ordered Contreras and Fernandez to the
ground at gunpoint and tied Silvestre, who was approximately seven months
pregnant, to a chair. Children were present in the residence at the time of the
burglary and theft. The men took an X-Box gaming system, some X-Box
games, cash, and prescription medication from the residence. The men also
threatened to come back and kill everyone in the trailer if anyone called the
police. The men’s actions placed Contreras, Fernandez, and Silvestre in fear
for their own safety, as well as the safety of the children present in the
residence. The records demonstrate that Williams participated in a very serious
and violent course of events.
[43] Further, we disagree with Williams’s assertion that the record indicates that he
is of good character. Rather, we find that Williams is of troubling character.
Review of the record indicates that since 2007, Williams has amassed a rather
extensive criminal history which includes juvenile adjudications and both
misdemeanor and felony convictions. As a juvenile, Williams was adjudicated
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 22 of 24 to be delinquent for committing what would have the following offenses if
committed by an adult: Class A misdemeanor criminal mischief, Class A
misdemeanor battery, Class A misdemeanor resisting law enforcement, Class D
felony theft, and Class B felony burglary. William’s adult criminal history
includes a prior conviction for misdemeanor operating a motor vehicle without
ever receiving a license and two prior convictions for Class B felony burglary.
It is also of note that Williams was on probation for his two prior adult
convictions for Class B felony burglary when he committed the instant offenses.
Williams’s criminal history, which appears to be escalating in seriousness,
indicates that he has repeatedly engaged in criminal behavior. In addition,
Williams’s failure to effectuate any positive change on his behavior as a result
of his repeated interactions with the criminal justice system indicates an
unwillingness by Williams to reform his behavior to conform to the rules of
society.
[44] In light of the facts surrounding the nature of Williams’s offenses and his
character, we conclude that Williams has failed to meet his burden of
persuading us that his aggregate sixty-eight-year sentence, of which thirteen
years were suspended to probation, is inappropriate.
Conclusion [45] In sum, we conclude that the evidence is sufficient to sustain Williams’s
convictions, Williams’s convictions for burglary and conspiracy to commit
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 23 of 24 burglary do not violate the prohibitions against double jeopardy, and Williams’s
sentence is not inappropriate.
[46] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-406 | December 17, 2015 Page 24 of 24