Pursuant to Ind. Appellate Rule 65(D), this Mar 31 2014, 6:16 am
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:
ALEXANDER L. HOOVER GREGORY F. ZOELLER
Law Office of Christopher G. Walter Attorney General of Indiana
Nappanee, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVONTA K. JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1307-CR-294
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-1209-FB-97
March 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Davonta K. Johnson appeals from the trial court’s sentencing order entered after
Johnson’s convictions of one count of burglary1 as a Class B felony and one count of
robbery2 as a Class B felony, contending that the trial court’s use of the same aggravating
factors to enhance both sentences was a violation of his double jeopardy protections under
the Indiana Constitution and the United States Constitution.
We affirm.
FACTS AND PROCEDURAL HISTORY
Kevin and Sadie Mahone hired a woman known as Shea to babysit their two young
children while the Mahones were at work. Shea would come to the Mahones’ house to
pick up the children and care for the children elsewhere during the Mahones’ shifts at work.
Johnson, who was Shea’s boyfriend and the father of her child, would sometimes
accompany Shea when she picked up the children and entered the Mahones’ home with
Shea on those occasions.
Prior to August 17, 2012, Shea failed to show up on one occasion when she was
scheduled to babysit for the Mahones’ children. The Mahones were forced to miss work
in order to care for their children and decided to withhold Shea’s pay until such time that
they could discuss Shea’s absence with her. On the evening of August 17, 2012, Johnson
came to the Mahones’ house to collect the money that Shea was purportedly owed. Johnson
and Kevin, who were both outside the Mahones’ house, argued, and the argument turned
into a physical altercation after some time. Both Kevin and Johnson left the premises.
1
See Ind. Code § 35-43-2-1.
2
See Ind. Code § 35-42-5-1.
2
Later that evening, when Sadie was giving her infant a bath, she heard a loud noise
that sounded like a door had been kicked open in the other room. Sadie went to investigate
the source of the sound and found Johnson inside her home holding a gun to the head of
her three-year-old daughter. The Mahones kept money in baby formula jars in the kitchen.
Johnson walked toward the kitchen shelves, took money out of a formula jar, and left the
Mahones’ home. Police who were dispatched to the scene found signs of forced entry at
the door.
The State charged Johnson with burglary as a Class B felony, alleging that Johnson
broke and entered the Mahones’ home with the intent to commit theft, and armed robbery
as a Class B felony. At the conclusion of Johnson’s bench trial, the trial court found
Johnson guilty of both counts.
At Johnson’s sentencing hearing, the trial court found as mitigating factors
Johnson’s age, 22, and the statements made at sentencing by Johnson and his counsel. The
trial court found the following aggravating factors: 1) Johnson’s moderate risk to reoffend;
2) Johnson’s criminal history, consisting of extensive juvenile and adult contacts with law
enforcement and multiple prior convictions; 3) Johnson was on probation at the time he
committed the offenses; 4) Johnson’s regular marijuana use, which was indicative of his
disregard for the law; 5) lesser sanctions had failed to rehabilitate Johnson; 6) Johnson
inserted himself into a dispute between other individuals; and 7) there were two small
children who were victimized due to their presence during the crimes and the fact that a
gun was held to the head of the three-year-old child. The trial court sentenced Johnson to
nineteen years executed on each count to be served concurrently. Johnson now appeals.
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DISCUSSION AND DECISION
Johnson appeals from the trial court’s sentencing order, contending that using the
same aggravating factors to enhance both sentences was a violation of his double jeopardy
protections under the Indiana and federal constitutions. Johnson concedes that his
convictions for burglary and robbery do not violate double jeopardy principles. Instead,
Johnson claims that his sentence violates Indiana’s common law double jeopardy rules
because the trial court used the same reasons, i.e., pointing a gun to the head of a three-
year-old, to impose a sentence above the advisory sentence for each offense.
One of the common law rules prevents a “[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.” Guyton
v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson v. State, 717 N.E.2d 32,
56 (Sullivan, J., concurring)). In other words, the State cannot seek to enhance the level of
an offense from one felony level to another based on the same fact that constitutes another
offense for which the defendant is convicted. See Gross v. State, 769 N.E.2d 1136, 1139
(Ind. 2002) (“where a single act forms the basis of both a Class A felony robbery conviction
and also the act element of the murder conviction, the two cannot stand.”). This rule was
not violated in the present case because Johnson’s robbery conviction was enhanced to a
Class B felony because it was committed while armed with a deadly weapon, and Johnson’s
burglary conviction was enhanced to a Class B felony because the building was a dwelling,
i.e., the Mahones’ home.
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Johnson has confused the concepts of the enhancement of an offense to a greater
level of felony with the enhancement of a sentence above the advisory sentence. In Miller
v. State, 790 N.E.2d 437, 439 (Ind. 2003) (quoting Gates v. State, 759 N.E.2d 631, 633 n.2
(Ind. 2001)), our Supreme Court reemphasized that “the use of a ‘single deadly weapon
during the commission of separate offenses may enhance the level of each offense.’” The
remedy for a double jeopardy violation is to vacate the conviction, or to reduce the
conviction to a lesser level of felony in recognition of the double-jeopardy problem. See
e.g., Orta v. State, 940 N.E.2d 370, 377 (Ind. Ct. App. 2011). What Johnson seeks here, is
a reduction of the length of his sentence, which demonstrates that his claim does not
actually implicate common law double jeopardy rules.
To the extent that Johnson might be arguing that the trial court improperly used an
element of the offense of robbery to enhance the robbery sentence, the claim also fails.
“[T]he consideration of a material element of a crime as an aggravator ‘is no longer an
inappropriate double enhancement.’” Gomillia v. State, 993 N.E.2d 306, 310 (Ind. Ct. Ap.
2013). Additionally, the particularized circumstances of an offense are valid
considerations for the purpose of sentencing. Id. at 310-11. The trial court observed that
there were two additional victims of Johnson’s crimes, namely the two young children who
were present during the commission of the crimes, and that one of the children had a gun
held to her head during the commission of the crimes. The trial court did not err.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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