Eric J. Smith v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose Aug 20 2014, 9:33 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHELLE F. KRAUS GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ERIC J. SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1311-CR-449
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-1307-MR-7
August 20, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Eric J. Smith appeals his convictions for murder and Class B felony possession of
a firearm by a serious violent felon. We affirm.
Issue
Smith raises one issue, which we restate as whether his convictions violate the
prohibition against double jeopardy.
Facts
Smith shot and killed Jabron Totton during a dispute in the parking lot of an
American Legion post in Fort Wayne. The State charged Smith with murder, with an
application for an additional fixed term of imprisonment for using a firearm pursuant to
Indiana Code Section 35-50-2-11, and Class B felony possession of a firearm by a serious
violent felon. A jury found Smith guilty as charged. The trial court sentenced him to
sixty-five years for the murder conviction enhanced by five years for the use of a firearm
consecutive to a sentence of twenty years for the possession of a firearm by a serious
violent felon conviction. He received an aggregate sentence of ninety years in the
Department of Correction. Smith now appeals.
Analysis
Smith argues that his convictions violate the prohibition against double jeopardy.
The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person shall be
put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In Richardson v.
State, 717 N.E.2d 32 (Ind. 1999), our supreme court concluded that two or more offenses
are the same offense in violation of Article 1, Section 14 if, with respect to either the
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statutory elements of the challenged crimes or the actual evidence used to obtain
convictions, the essential elements of one challenged offense also establish the essential
elements of another challenged offense. Garrett v. State, 992 N.E.2d 710, 719 (Ind.
2013).
Smith concedes that his convictions do not violate the statutory elements test;
rather, Smith argues that his convictions for murder and possession of a firearm by a
serious violent felon violate the actual evidence test.1 “Under the actual evidence test, we
examine the actual evidence presented at trial in order to determine whether each
challenged offense was established by separate and distinct facts.” Id. To find a double
jeopardy violation under this test, we must conclude that there is “a reasonable possibility
that the evidentiary facts used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a second
challenged offense.” Id. “The actual evidence test is applied to all the elements of both
offenses.” Id. “‘In other words . . . the Indiana Double Jeopardy Clause is not violated
when the evidentiary facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential elements of a second
offense.’” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).
According to Smith, the same evidentiary facts were used to establish the essential
elements of both murder and possession of a firearm by a serious violent felon. Our
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Smith does not that argue the sentencing enhancement for using a firearm and his conviction for
possession of a firearm by a serious violent felon violate the prohibition against double jeopardy. See
Cooper v. State, 940 N.E.2d 1210, 1215 (Ind. Ct. App. 2011) (recognizing that sentencing enhancements
are not offenses for double jeopardy purposes), trans. denied.
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supreme court addressed a similar argument in Mickens v. State, 742 N.E.2d 927 (Ind.
2001). There, the defendant challenged his convictions for murder and carrying a
handgun without a license based on the prohibition against double jeopardy based on the
actual evidence test. Our supreme court rejected the argument and found that “[c]arrying
the gun along the street was one crime and using it was another.” Mickens, 742 N.E.2d
at 931.
Similarly, here, the State proved that Smith committed murder by demonstrating
that he caused Totton’s death by shooting him with a gun. The State proved that Smith
committed possession of a firearm by a serious violent felon by demonstrating that Smith
possessed a gun and qualified as a serious violent felon. Smith attempts to distinguish
Mickens by arguing that “not a single witness saw Smith with a gun at any point on June
9th.” Appellant’s Br. p. 11. However, circumstantial evidence demonstrated that Smith
possessed the weapon. As the State point out, “One cannot fire a gun without also, at
some point, possessing that firearm.” Appellee’s Br. p. 8. We conclude that Smith’s
double jeopardy argument fails. Possessing the weapon as a serious violent felon was
one crime and using it to murder Totton was another.
Conclusion
Smith’s convictions for murder and possession of a firearm by a serious violent
felon do not violate the prohibition against double jeopardy. We affirm.
Affirmed.
BRADFORD, J., and BROWN, L., concur.
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