Apr 22 2015, 7:53 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryson Tyrone Street, April 22, 2015
Appellant-Defendant, Court of Appeals Case No.
21A04-1410-CR-458
v. Appeal from the Fayette Circuit
Court
State of Indiana, The Honorable Beth A. Butsch,
Appellee-Plaintiff Judge
Cause No. 21C01-1406-FA-338
Najam, Judge.
Statement of the Case
[1] Bryson Tyrone Street appeals his convictions and sentence after a jury found
him guilty of the following offenses: burglary, as a Class A felony; attempted
robbery, as a Class A felony; attempted robbery, as a Class B felony; battery, as
a Class C felony; carrying a handgun without a license, a Class C felony;
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criminal recklessness, as a Class D felony; neglect of a dependent, as a Class D
felony; possession of marijuana, as a Class A misdemeanor; and to being an
habitual offender. Street raises five issues for our review, which we consolidate
and restate as the following four issues:
1. Whether some of Street’s convictions are prohibited under
Indiana double jeopardy law;
2. Whether the trial court committed fundamental error in
the admission of certain evidence;
3. Whether the State presented sufficient evidence to support
Street’s conviction for neglect of a dependent, as a Class D
felony; and
4. Whether the trial court erred when it sentenced Street for
being an habitual offender.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] Michael Corn and his girlfriend, Bria Benjamin, lived together in Connersville
with their two-year-old son. Corn and Benjamin became acquainted with Street
around March of 2014. Between March and June, Street visited Corn and
Benjamin’s home “about ten” times. Trial Tr. at 157.
[4] Around 8:00 a.m. on June 11, 2014, Corn, Benjamin, and their son were
awoken by someone kicking in their back door. A neighbor observed “a
chubby person in a gray hoodie,” blue jeans, and with “a bandana around the[]
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face” kicking in Corn and Benjamin’s door. Id. at 136. The neighbor called the
police.
[5] Meanwhile, Corn exited the family bedroom to investigate the noise at his
door. Corn met an African-American man in the kitchen, and Corn observed
that the man was wearing a gray hoodie, blue jeans, a bandana around his face,
and blue gloves. Although the man’s face was covered, Corn recognized him as
Street based on “his voice and his shape and the way” he talked. Id. at 168. In
the bedroom, Benjamin also heard and recognized Street’s voice. Street
demanded Corn’s money, and when Corn stated that he did not have any,
Street instead grabbed Corn’s marijuana off of a kitchen counter. Street then
pulled out a .25 caliber handgun and shot Corn in the thigh. Another shot
struck the kitchen wall. Street fled before the police arrived.
[6] When the police arrived, Corn and Benjamin were initially reluctant to identify
Street. But they did so later on June 11, and officers obtained and executed a
warrant to search Street’s residence later that day. In executing the warrant,
officers seized .25 caliber ammunition, a grey sweatshirt, blue jeans with blue
gloves stuffed inside them, and bandanas. The officer also seized firearms,
which included a loaded .22 caliber revolver, found inside of a pillow case on
Street’s bed. Street had lived at that residence “for a few months” and shared
the residence with his girlfriend, Iva Fine; Fine’s daughter, T.A.F.; and Fine’s
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grandson, J.T.1 Street, Fine, and J.T. all slept in the same bed. Appellant’s Br.
at 10. T.A.F. “look[ed] to [Street] as a father figure.” Trial Tr. at 428.
[7] Officers arrested Street. In the booking room of the police station, while
officers were conducting a pat-down of Street, a .25 caliber handgun “fell out of
his groin area.” Id. at 455. Officers also discovered a small bag of marijuana
“in the groin area of Mr. Street.” Id. at 457. Later ballistics testing revealed
that the shots fired inside Corn and Benjamin’s residence were fired from the
.25 caliber handgun that had fallen out of Street’s “groin area” during his
booking. Id. at 455.
[8] On July 15, 2014, the State filed its amended charging information against
Street, in which the State alleged that Street had committed the following
offenses:
Count I: burglary, as a Class A felony, on the grounds that Street “did
break and enter the building or structure of [Corn and
Benjamin] . . . with the intent to commit a felony and said act resulted
in bodily injury” to Corn;
Count II: attempted robbery, as a Class A felony, on the grounds that
Street “did knowingly or intentionally attempt to take property, to-wit:
U.S. Currency from . . . Corn[] by use of force or threat of force and
said conduct resulted in serious bodily injury” to Corn;
1
We note that T.A.F. is not J.T.’s mother.
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Count III: attempted robbery, as a Class B felony, on the grounds that
Street “did knowingly or intentionally attempt to take property, to-wit:
U.S. Currency from . . . Corn[] by use of force or threat of force, while
armed with a deadly weapon or resulting in bodily injury” to Corn;
Count IV: battery, as a Class C felony, on the grounds that Street “did
knowingly touch [Corn] in a rude, insolent, or angry manner; by means
of a deadly weapon, to wit: gun”;
Count V: criminal recklessness, as a Class D felony, on the grounds
that Street “did recklessly, knowingly, or intentionally[,] with a deadly
weapon, to wit: gun, perform an act that created a substantial risk of
bodily injury” to Corn, Benjamin, and/or their son, namely, “Street
fired one or more gunshots inside the residence”;
Count VI: neglect of a dependent, as a Class D felony, on the grounds
that Street, “having the care of J.T . . . a dependent, did knowingly
place said dependent in a situation that endangered the dependent’s life
or health”;
Count VII: carrying a handgun without a license, a Class C felony; and
Count VIII: possession of marijuana, as a Class A misdemeanor.
Appellant’s App. at 52-53. The State also alleged Street to be an habitual
offender.
[9] During Street’s ensuing jury trial, in addition to evidence showing the above
facts, the State played two video recordings to the jury. In one, Fine stated that
Street “‘just did six years’” and, in the other, another person, Marcus Armstead,
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stated that “the last few days were the most he’d seen Mr. Street in ten years
because Mr. Street had been in jail.” Appellant’s Br. at 5 (quoting State’s Exs.
18 & 19). Street did not object to the admission of those recordings, but, after
the jury had viewed them, Street requested an admonishment to the jury. The
trial court agreed, stating:
I am admonishing you[,] that means I’m telling you, that you are
not to consider and to regard as if you have never heard any
remarks of any of those people with regard to Mr. Street and
whether or not he has ever had a prior conviction of any kind or
has ever been in prison. If you heard anything like that, it’s as if
you never heard. You are to completely disregard it.
Trial Tr. at 285. Street did not request a mistrial following the admonishment.
[10] In the State’s closing argument, the prosecutor discussed how the evidence
related to Counts I through V in reverse order as follows:
Criminal recklessness [Count V] . . . [is] based upon the facts that
[Street] fired the gun where [Corn, Benjamin, and J.T. lived].
That was an act . . . creating a substantial risk of injury. . . . That
is (inaudible) by a deadly weapon . . . Count IV [Count IV
alleged Class C felony battery by a deadly weapon]. Why did he
come here? Money (inaudible). [Corn] admitted he sold
marijuana. . . . [Street] went there[,] he came in and . . . said
where’s it at, where’s it at. . . . [Corn] . . . said that [Street had]
said where’s the money, where’s the money but remember
(inaudible) because you know I have a bag of weed (inaudible).
But the money wasn’t right there on the table in the kitchen. So
[Street] comes in, kicks through the door . . . and then when he
demanded money and doesn’t get [it] he . . . fires (inaudible) and
grabs something he does see on the table of value. And . . . with
a .25 auto resulting in bodily injury, the gunshot wound.
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(Inaudible) all the evidence you’ll find that the State has met the
burden of proof on each and every element of the crimes charged
against [Street] and return a verdict of guilty on all counts.
Tr. at 561-62. The jury found Street guilty as charged.
[11] Following a sentencing hearing, the trial court found numerous aggravating
circumstances and no mitigating circumstances. The court then entered its
judgment of conviction and imposed its sentence as follows:
The Court hereby commits the Defendant to the Indiana
Department of Correction[] for: Count I—40 years concurrent
with 40 years on Count II. The Court merges the convictions on
Counts II and III; consecutive to [sic] 8 years on Count IV;
concurrent with 3 years on Count V; concurrent with 3 years on
Count VI; concurrent with 8 years on Count VII; concurrent with
1 year on Count VIII; to be served CONSECUTIVE to 30 years
on being a Habitual Offender for a total of 78 years. . . .
Appellant’s App. at 183. This appeal ensued.
Discussion and Decision
Issue One: Double Jeopardy
[12] We first consider Street’s contention that several of his convictions violate
Indiana’s prohibitions against double jeopardy. Questions of double jeopardy
implicate fundamental rights and, as such, may be raised for the first time on
appeal, or even by this court sua sponte. See Smith v. State, 881 N.E.2d 1040,
1047 (Ind. Ct. App. 2008). Whether convictions violate double jeopardy is a
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pure question of law, which we review de novo. Rexroat v. State, 966 N.E.2d
165, 168 (Ind. Ct. App. 2012), trans. denied.
[13] 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.”
As our supreme court has explained:
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
concluded that two or more offenses are the same offense in
violation of article 1, section 14 if, with respect to either the
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. 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. 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
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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
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) (last alteration original).2
[14] Of particular relevance to this appeal is our supreme court’s opinion in Pierce v.
State, 761 N.E.2d 826, 830 (Ind. 2002). In Pierce, the defendant broke into the
house of his victim. Inside, he raped his victim and demanded money from her.
The defendant’s assault resulted in bodily injury to the victim. The trial court
entered judgment of conviction against the defendant for, among other things,
burglary, as a Class A felony, and robbery, as a Class B felony.
[15] In reviewing those two convictions, our supreme court held:
To convict Pierce of burglary as a Class A felony, the State must
show that: (1) Pierce broke and entered (2) the victim’s house (3)
with the intent to commit a felony therein (4) resulting in either
bodily injury or serious bodily injury. Ind. Code § 35-43-2-1
(1998). To convict Pierce for robbery as a Class B felony, the
State must show that Pierce: (1) knowingly or intentionally (2)
2
Street does not challenge the validity of his convictions under either the Fifth Amendment to the United
States Constitution or under the statutory elements test of the Indiana Constitution.
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took money (3) from the presence of the victim (4) by use of force
or threat of force and (5) while armed with a deadly weapon or
resulting in bodily injury to the victim. Id. 35-42-5-1.
Each of these crimes includes evidence or facts not essential to
the other. The taking of money supports the robbery and the
breaking and entering supports the burglary, but neither is an
element of the other crime. Nevertheless, 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. See Richardson, 717
N.E.2d at 55 (Sullivan, J., concurring); id. at 57 (Boehm, J.,
concurring). Among these is the doctrine that where a burglary
conviction is elevated to a Class A felony based on the same bodily injury
that forms the basis of a Class B robbery conviction, the two cannot
stand. Cf. Campbell v. State, 622 N.E.2d 495, 500 (Ind. 1993)
(battery and burglary); Wolfe v. State, 549 N.E.2d 1024, 1025 (Ind.
1990) (attempted rape and robbery); McDonald v. State, 542
N.E.2d 552, 555-56 (Ind. 1989) (two robberies). Accordingly, the
robbery conviction is reduced to a C felony.
Id. (emphasis added; footnotes omitted).3
3
In Leggs v. State, we stated: “A defendant is subjected to double jeopardy ‘where a felony is elevated in
class based on the same statutory factor and factual basis that was used to elevate another felony in class,
[thus] [sic] the two cannot stand together and one must be reduced in class.’” 966 N.E.2d 204, 208-09 (Ind.
Ct. App. 2012) (quoting Pierce, 761 N.E.2d at 830) (first alteration original to Leggs). The language quoted
within this quote does not appear in Pierce but, rather, is from Hancock v. State, 768 N.E.2d 880, 880 (Ind.
2002). To be sure, however, the impermissible double enhancement in Pierce was expressly limited to “the
same bodily injury” underlying the Class A felony burglary and the Class B felony robbery. 761 N.E.2d at
830. Likewise, the “same statutory factor and factual basis that was used to elevate” the two felonies in
Hancock was the same drugging of a victim of rape and criminal deviate conduct. 768 N.E.2d at 880. Thus,
the language in Hancock is more limited than it appears. For example, it does not prohibit multiple
enhancements based on a defendant’s use of the same weapon in the commission of multiple offenses, which
would be contrary to our supreme court’s holding in Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (“The
defendant’s use of the same weapon in the commission of separate and distinct offenses . . . does not present
a violation of the Indiana Double Jeopardy Clause.”).
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[16] Likewise, in Campbell, our supreme court held:
The Court of Appeals remanded this cause to the trial court with
instructions to vacate the class C felony battery conviction and
resentence appellant for battery as a class B misdemeanor,
because the enhanced felony level of both [the Class C felony
battery and Class A felony burglary] was based upon the same
injurious consequences, violating state and federal double
jeopardy prohibitions. We agree. Although the battery
information alleged use of a deadly weapon and the burglary
information alleged serious bodily injury, the basis for the
elevation of both crimes was the same slashing of [the victim’s]
face. Appellant was improperly sentenced for battery as a class C
felony.
622 N.E.2d at 500, clarified as still good law on this issue, Pierce, 761 N.E.2d at 830
n.4.
[17] Here, Street first argues that his convictions for Counts I and II—burglary, as a
Class A felony, and attempted robbery, as a Class A felony, respectively—
violate the rule announced in Pierce. The State concedes both that Street’s
convictions on Count I and Count II violated Street’s double jeopardy rights
under Pierce and that the proper remedy is to vacate Street’s conviction for
Count II, attempted robbery as a Class A felony.
[18] However, the State’s concession that Count II should be vacated appears to be
premised on reinstating Street’s conviction for Count III, attempted robbery as
a Class B felony, which the trial court had originally “merge[d]” with Count II.
See Appellant’s App. at 183. The State is partly right; Count III should be
reinstated, but not as a Class B felony. At the times relevant to Street’s
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convictions, the base-level offense for robbery was as a Class C felony. I.C. §
35-42-5-1 (2014). That offense was enhanced to a Class B felony if the
defendant committed the offense while armed with a deadly weapon or the
offense resulted in bodily injury to another person. Id. And it was enhanced to
a Class A felony if it resulted in serious bodily injury to another person. Id.
[19] Here, the only difference between Count II and Count III was the State’s
alternative assertions that the injury to Corn was either serious bodily injury—
and therefore the Class A felony alleged under Count II—or bodily injury—and
therefore the Class B felony alleged under Count III. That is, the State charged
Count III as a lesser-included offense to Count II, and, as such, the trial court
was correct to conclude that it could not punish Street under both Count II and
Count III. See, e.g., Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). But
Count III is still an enhancement to the base, Class C felony robbery, and the
enhancement under Count III is premised on the same bodily injury that
formed the enhancement under Count I and elevated the burglary offense to a
Class A felony. See I.C. § 35-43-2-1(2). Pierce expressly requires that the Class
B felony robbery conviction be reduced in these circumstances to a Class C
felony. 761 N.E.2d at 830.
[20] We next consider Street’s argument that his conviction under Count IV—
battery, as a Class C felony—must be vacated in light of his conviction under
Count III. As with the State above, here Street is partly right: his conviction
for battery, as a Class C felony, cannot stand, but it cannot stand because the
enhancement under Count IV is based on the same facts that resulted in his
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enhancement under Count I, burglary as a Class A felony. As our supreme
court explained in Campbell: “Although the battery information alleged use of a
deadly weapon and the burglary information alleged serious bodily injury, the
basis for the elevation of both crimes was the same” injury to the victim—
namely, Corn being shot by Street’s use of the deadly weapon. 622 N.E.2d at
500. Accordingly, as in Campbell, here the Class C felony conviction must be
reduced to a Class B misdemeanor. Id.; see I.C. § 35-42-2-1(a).
[21] In sum, we reverse Street’s convictions under Counts II, III, and IV. We
remand with instructions that the trial court: vacate Street’s conviction under
Count II; reinstate Street’s conviction under Count III for robbery, as a Class C
felony; and reduce Street’s conviction under Count IV to battery, as a Class B
misdemeanor. On remand, the court shall resentence Street accordingly.
Issue Two: Fundamental Error
[22] We next consider Street’s argument that his convictions must be reversed
because the trial court committed fundamental error when it permitted the jury
to hear the video recordings of Fine and Armstead, who both referenced
Street’s prior incarceration. Because Street did not object to the admission of
this evidence, “we will only reverse the trial court if the trial court committed
error that was . . . a substantial, blatant violation of due process that must be so
prejudicial to the rights of a defendant as to make a fair trial impossible.”
Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015) (quotations omitted)..
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[23] There is no question that it was error for the jury to hear of Street’s irrelevant
prior convictions. As the Indiana Supreme Court has stated: “evidence of a
prior conviction is as prejudicial as evidence can get . . . .” Thompson v. State,
690 N.E.2d 224, 235 (Ind. 1997). Seizing on this, Street asserts that “we cannot
say the jury’s decision was not based on knowing Mr. Street had previously
been incarcerated for committing a criminal offense.” Appellant’s Br. at 6
(emphasis added).
[24] But we can say exactly that. While Street did not object to the admission of the
erroneous statements, he did request an admonishment that the jury disregard
them, and the trial court admonished the jury accordingly. “We presume the
jury followed the trial court’s admonishment and that the excluded testimony
played no part in the jury’s deliberation.” Francis v. State, 758 N.E.2d 528, 532
(Ind. 2001). If we must presume the jury followed an admonishment, then we
cannot assume, as Street does, that the jury considered the erroneous statements
covered by the admonishment.
[25] Moreover, the erroneously admitted statements were isolated, passing
comments in a voluminous record. Cf. Rosales, 23 N.E.3d at 16 (holding that,
but for the State’s “repeated insistence” on an erroneous statement of the mens
rea necessary to convict, “the error in this case likely would not rise to the level
of fundamental”). Juxtaposed against those passing comments is the thorough
and descriptive testimony of Corn, Benjamin, and numerous officers and other
witnesses. Those witnesses, among other things, personally identified Street as
the invader or as the possessor of the handgun or determined that the handgun
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found on Street’s person had been used in the home invasion. In light of that
significant and incriminating testimony, we cannot say that the error here was
so substantial and blatant as to have made a fair trial impossible. Therefore, no
fundamental error occurred, and we affirm Street’s convictions.
Issue Three: Sufficient Evidence of Neglect of a Dependent
[26] Street also asserts that the State failed to present sufficient evidence to support
his conviction for neglect of a dependent, as a Class D felony. Our standard for
reviewing the sufficiency of the evidence needed to support a criminal
conviction is as follows:
First, we neither reweigh the evidence nor judge the credibility of
witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
Second, we only consider “the evidence supporting the judgment
and any reasonable inferences that can be drawn from such
evidence.” Id. (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind.
2008)). A conviction will be affirmed if there is substantial
evidence of probative value supporting each element of the
offense such that a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Id. “It is the job of
the fact-finder to determine whether the evidence in a particular
case sufficiently proves each element of an offense, and we
consider conflicting evidence most favorably to the trial court’s
ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)
(citations omitted).
Willis v. State, ___ N.E.3d ___, slip op. at 3 (Ind. 2015).
[27] Pursuant to Indiana Code Section 35-46-1-4(a), to show that Street had
committed neglect of a dependent, as a Class D felony, the State was required
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to show beyond a reasonable doubt that Street, “having the care of a dependent,
whether assumed voluntarily or because of a legal obligation,” knowingly or
intentionally placed the dependent in a situation that endangered the
dependent’s life or health. As alleged here, the State needed to show that Street
had care of J.T. and knowingly or intentionally placed J.T. in a situation that
endangered J.T. Street’s only argument on appeal is that the State did not show
that Street voluntarily assumed care of J.T.
[28] The State presented sufficient evidence to support Street’s conviction. The
State showed that Street allowed J.T. to sleep in Street’s bed. And, while J.T.
slept in that bed, Street had a loaded firearm inside a pillow case on the bed. A
reasonable trier of fact could conclude that, during that time, Street had
voluntarily assumed care of J.T. while also placing J.T. in an endangering
situation. Thus, we affirm Street’s conviction for neglect of a dependent, as a
Class D felony.
Issue Four: Habitual Offender Enhancement
[29] Finally, we address Street’s contention that the trial court erred when it ordered
Street’s habitual offender enhancement to be an independent, thirty-year
sentence consecutive to the sentences imposed for Street’s offenses. The State
concedes that the trial court erred in this respect. “A habitual offender finding
does not constitute a separate crime nor does it result in a separate sentence[;]
rather[,] it results in a sentence enhancement imposed upon the conviction of a
subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001). Thus,
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we remand with instructions that the court properly impose Street’s habitual
offender conviction as a sentence enhancement.
Conclusion
[30] In sum, we reverse Street’s convictions under Counts II, III, and IV, and we
reverse the trial court’s imposition of a freestanding sentence for the habitual
offender enhancement. We remand with instructions that the trial court:
vacate Street’s conviction under Count II; reinstate Street’s conviction under
Count III for robbery, as a Class C felony; reduce Street’s conviction under
Count IV to battery, as a Class B misdemeanor; and resentence Street,
including properly applying Street’s habitual offender enhancement against
him. On all other issues, we affirm.
[31] Affirmed in part, reversed in part, and remanded with instructions.
Baker, J., and Friedlander, J., concur.
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