MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 15 2015, 6:18 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 David Becsey Gregory F. Zoeller Zeigler Cohen & Koch Attorney General of Indiana Indianapolis, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ryan Browne, December 15, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-487 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Anne Flannelly, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G04-1309-FB-63150
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 1 of 6 [1] Ryan Browne appeals his convictions of Class B Felony Burglary 1 and Class C
Felony Robbery,2 arguing that the entry of judgment on both offenses violates
the prohibition against double jeopardy. Finding no double jeopardy violation,
we affirm.
Facts [2] Ashley Collins was gifted a PlayStation Vita, but since neither she nor her three
children played video games, she decided to sell it. In August 2013, she posted
an advertisement on Craigslist that included photos of the item, her name, and
her cell phone number.
[3] Two days later, Collins received a text from someone going by the name of
“Eric” inquiring about the Vita. They agreed on a price of $200. After a phone
conversation, Collins set up a meeting at a local gas station. She told “Eric,”
who later turned out to be Browne, what type of vehicle she drove. Collins
arrived at the meeting, but Browne did not show up. She left after an hour.
The two rescheduled, but again Browne did not show up.
[4] Collins scheduled another meeting for August 22, 2013, at a Dollar General
store that was within view of her house. When she arrived, she got out of her
1 Ind. Code § 35-43-2-1 (2013). 2 Ind. Code § 35-42-5-1 (2013).
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 2 of 6 car to look around, the Vita sticking out of her purse, but did not see anybody
who looked like a purchaser. Again, she left without meeting up with Browne.
[5] She returned to her house with her three children in the car. As her two older
children went inside, Collins carried her six-month-old baby in the baby’s car
seat. She placed the seat and her purse on the ground. When she turned
toward the street, she saw a vehicle driving from the direction of the Dollar
General. The vehicle pulled up to her driveway and a man, later identified as
Browne, got out. When Browne began to speak, Collins recognized the voice
from their phone conversations.
[6] Browne sprinted toward Collins and her baby. She just managed to get her
child in the door, but she was unable to fully close it. Browne was pushing the
door open while she was pushing the other way. The two struggled for about a
minute until Browne gave the door “a big shove,” enabling him to get inside.
Tr. 27-28.
[7] Once inside, Browne pushed Collins with both hands. She tripped over her
sixth-month-old’s car seat and fell to the ground. All of her children were in the
room, screaming. Browne grabbed Collins’s purse, took the Vita out of it,
dropped the purse, called Collins a “b*tch,” and raced out of the house. Tr. 29.
Collins immediately called the police.
[8] On September 25, 2013, the State charged Browne with class B felony
attempted burglary and class C felony robbery. The State later amended the
charges to drop the former charge and to add class B felony burglary. After an
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 3 of 6 April 23, 2015, jury trial, Browne was found guilty as charged. The trial court
sentenced Browne to four years for robbery and ten years for burglary, to be
served concurrently. Browne now appeals.
Discussion and Decision [9] Browne’s only argument on appeal is that his two convictions constitute double
jeopardy. The Fifth Amendment to the United States Constitution provides
that “[no]… person [shall] be subject for the same offense to be twice put into
jeopardy.” Article 1, Section 14 of our Indiana Constitution similarly provides
that “no person shall be put in jeopardy twice for the same offense.” For the
purposes of double jeopardy analysis, two offenses qualify as the “same
offense” 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.
Nicoson v. State, 919 N.E.2d 1203, 1205-06 (Ind. Ct. App. 2010) (citing
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).
[10] To obtain the robbery conviction, the State had to prove beyond a reasonable
doubt that (1) Browne intentionally took property, (2) from Collins, (3) by using
or threatening force, or by putting Collins in fear. Ind. Code § 35-42-5-1 (2013).
To obtain the burglary conviction, the State had to prove beyond a reasonable
doubt that (1) Browne broke and entered Collins’s house, (2) with the intent to
commit a felony inside. Ind. Code § 35-43-2-1 (2013).
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 4 of 6 [11] We note that the question of whether simultaneous convictions for burglary and
robbery violate the double jeopardy clause is not an issue of first impression.
We have previously explained that “convictions for robbery and burglary do
not violate the Richardson actual evidence test as each crime requires proof of a
fact that the other does not; robbery requires proof that the defendant took
property from another person and burglary requires proof that the defendant
broke and entered a structure.” Smith v. State, 872 N.E.2d 169, 176 (Ind. Ct.
App. 2007). Such is the case here—the jury found that Browne broke into
Collins’s house, and found separately that Browne took the Vita, which was
Collins’s property. At the moment that Browne forced his way into the house,
intending to commit theft, he had completed the burglary. The robbery took
place after the burglary, when Browne actually took the Vita. Therefore, there
is nothing improper with Browne being convicted of both offenses.
[12] A double jeopardy violation can occur if a single fact—for example, one bodily
injury—is used by the State to enhance more than one offense; in such a case,
the appropriate remedy is to strike one of the twice-used enhancers and thereby
reduce the level of one of the offenses. Pierce v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 15 2015, 6:18 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 David Becsey Gregory F. Zoeller Zeigler Cohen & Koch Attorney General of Indiana Indianapolis, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ryan Browne, December 15, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-487 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Anne Flannelly, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G04-1309-FB-63150
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 1 of 6 [1] Ryan Browne appeals his convictions of Class B Felony Burglary 1 and Class C
Felony Robbery,2 arguing that the entry of judgment on both offenses violates
the prohibition against double jeopardy. Finding no double jeopardy violation,
we affirm.
Facts [2] Ashley Collins was gifted a PlayStation Vita, but since neither she nor her three
children played video games, she decided to sell it. In August 2013, she posted
an advertisement on Craigslist that included photos of the item, her name, and
her cell phone number.
[3] Two days later, Collins received a text from someone going by the name of
“Eric” inquiring about the Vita. They agreed on a price of $200. After a phone
conversation, Collins set up a meeting at a local gas station. She told “Eric,”
who later turned out to be Browne, what type of vehicle she drove. Collins
arrived at the meeting, but Browne did not show up. She left after an hour.
The two rescheduled, but again Browne did not show up.
[4] Collins scheduled another meeting for August 22, 2013, at a Dollar General
store that was within view of her house. When she arrived, she got out of her
1 Ind. Code § 35-43-2-1 (2013). 2 Ind. Code § 35-42-5-1 (2013).
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 2 of 6 car to look around, the Vita sticking out of her purse, but did not see anybody
who looked like a purchaser. Again, she left without meeting up with Browne.
[5] She returned to her house with her three children in the car. As her two older
children went inside, Collins carried her six-month-old baby in the baby’s car
seat. She placed the seat and her purse on the ground. When she turned
toward the street, she saw a vehicle driving from the direction of the Dollar
General. The vehicle pulled up to her driveway and a man, later identified as
Browne, got out. When Browne began to speak, Collins recognized the voice
from their phone conversations.
[6] Browne sprinted toward Collins and her baby. She just managed to get her
child in the door, but she was unable to fully close it. Browne was pushing the
door open while she was pushing the other way. The two struggled for about a
minute until Browne gave the door “a big shove,” enabling him to get inside.
Tr. 27-28.
[7] Once inside, Browne pushed Collins with both hands. She tripped over her
sixth-month-old’s car seat and fell to the ground. All of her children were in the
room, screaming. Browne grabbed Collins’s purse, took the Vita out of it,
dropped the purse, called Collins a “b*tch,” and raced out of the house. Tr. 29.
Collins immediately called the police.
[8] On September 25, 2013, the State charged Browne with class B felony
attempted burglary and class C felony robbery. The State later amended the
charges to drop the former charge and to add class B felony burglary. After an
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 3 of 6 April 23, 2015, jury trial, Browne was found guilty as charged. The trial court
sentenced Browne to four years for robbery and ten years for burglary, to be
served concurrently. Browne now appeals.
Discussion and Decision [9] Browne’s only argument on appeal is that his two convictions constitute double
jeopardy. The Fifth Amendment to the United States Constitution provides
that “[no]… person [shall] be subject for the same offense to be twice put into
jeopardy.” Article 1, Section 14 of our Indiana Constitution similarly provides
that “no person shall be put in jeopardy twice for the same offense.” For the
purposes of double jeopardy analysis, two offenses qualify as the “same
offense” 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.
Nicoson v. State, 919 N.E.2d 1203, 1205-06 (Ind. Ct. App. 2010) (citing
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).
[10] To obtain the robbery conviction, the State had to prove beyond a reasonable
doubt that (1) Browne intentionally took property, (2) from Collins, (3) by using
or threatening force, or by putting Collins in fear. Ind. Code § 35-42-5-1 (2013).
To obtain the burglary conviction, the State had to prove beyond a reasonable
doubt that (1) Browne broke and entered Collins’s house, (2) with the intent to
commit a felony inside. Ind. Code § 35-43-2-1 (2013).
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 4 of 6 [11] We note that the question of whether simultaneous convictions for burglary and
robbery violate the double jeopardy clause is not an issue of first impression.
We have previously explained that “convictions for robbery and burglary do
not violate the Richardson actual evidence test as each crime requires proof of a
fact that the other does not; robbery requires proof that the defendant took
property from another person and burglary requires proof that the defendant
broke and entered a structure.” Smith v. State, 872 N.E.2d 169, 176 (Ind. Ct.
App. 2007). Such is the case here—the jury found that Browne broke into
Collins’s house, and found separately that Browne took the Vita, which was
Collins’s property. At the moment that Browne forced his way into the house,
intending to commit theft, he had completed the burglary. The robbery took
place after the burglary, when Browne actually took the Vita. Therefore, there
is nothing improper with Browne being convicted of both offenses.
[12] A double jeopardy violation can occur if a single fact—for example, one bodily
injury—is used by the State to enhance more than one offense; in such a case,
the appropriate remedy is to strike one of the twice-used enhancers and thereby
reduce the level of one of the offenses. Pierce v. State, 761 N.E.2d 826, 830 (Ind.
2002). But such is not the case here—class C robbery does not involve any
enhancers, Ind. Code § 35-42-5-1 (2013); and while class B burglary does
require an enhancer, Browne’s burglary was enhanced by the fact that it took
place at Collins’s dwelling, Ind. Code § 35-43-2-1(1)(B)(i) (2013). The fact that
the offense took place in a dwelling has no bearing on the elements of robbery.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 5 of 6 [13] Browne’s central argument is that the jury could have understood the “force”
that he used to break into the dwelling to be the same “force” used to establish
the robbery. In other words, he believes that if the same push both opened the
front door and knocked Collins to the ground, one of his convictions should be
vacated.
[14] This is an incorrect understanding of the actual evidence test. There is no
violation of that test “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). Even if the push that effectuated the breaking-in element of
burglary was the same push used to prove the use-of-force element of robbery,
the latter offense has the additional element of the actual taking of property. A
partial overlap in evidence is not a violation of the actual evidence test. 3
[15] In sum, since robbery and burglary require both different elements and different
evidence, and since there was not a single fact giving rise to multiple
enhancements, there was no double jeopardy violation.
[16] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
3 In any event, Collins testified at trial that there were two pushes—Browne used “a big shove,” to get in the house, and then pushed Collins with both of his palms moving away from his body. Tr. 27-28. Therefore, even if Browne’s underlying argument had merit, he would not succeed.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-487 | December 15, 2015 Page 6 of 6