MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Jan 12 2016, 8:54 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
Elizabeth A. Bellin Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Armando Gonzalez, Jr., January 12, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1504-CR-133
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-131
May, Judge.
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[1] Armando Gonzalez appeals the consecutive sentences imposed for the crimes
of which he was convicted. However, the State presents an issue on cross-
appeal which we find dispositive: Whether the trial court erred when it reduced
Gonzalez’s convictions of robbery and criminal confinement from Class B
felonies to Class C felonies.
[2] We remand for resentencing consistent with this opinion.
Facts and Procedural History
[3] On the evening of November 3, 2013, Gonzalez, Antoine McDuffie, Davon
Crenshaw, and Montrail Williams were drinking and smoking marijuana at
Gonzalez’s apartment. During the evening, the group passed around and
examined three firearms, one of which was a revolver with a red laser
attachment. Later in the evening, Gonzales told the group he needed money
and had a potential burglary target. The group had a conversation about which
of three houses they intended to burglarize.
[4] The following day, Gonzales woke up the group and they headed to the chosen
victims’ house. At around 4:45 a.m., Cynthia Contreras saw an intruder
walking through her home towards her bedroom. The intruder put a gun to
Contreras’ head. She could not identify the intruder because he had a mask
covering his face. Contreras’ daughter, Brenda Fernandez, woke up seeing a
second intruder with a gun to her own head. Fernandez thought she heard the
voice of someone she knew as “Junior,” which is Gonzalez’s nickname. (Tr. at
173.) The intruders demanded “gold and dope” from Contreras and
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Fernandez. (Id. at 96.) The women told the intruders there was no gold or
dope in the house, however one of the men began searching the bedroom.
[5] Soon thereafter, in another room of Contreras’ house, the intruders encountered
Thaly Silvestre, who was seven months pregnant. Silvestre awoke to an
intruder pointing a gun with a red laser attachment at her head. A third masked
intruder grabbed a nearby phone cord, wrapped Silvestre’s hands and feet, and
brought Silvestre to where Contreras and Fernandez were in the house.
[6] The first intruder, with the gun still on Contreras, demanded her purse, which
was located in the adjoining living room. The first intruder walked Contreras
to the adjoining living room and there Contreras saw the other two intruders;
one was disconnecting her X-Box from her television. Contreras retrieved her
purse and gave the first intruder $350.00 in cash from her purse. One of the
intruders also stole a bottle of Vicodin from Contreras’ dresser. The four
intruders began to leave, telling the victims that they would return to kill them if
they called the police.
[7] Contreras reported the incident to police. Gonzales’ girlfriend allowed officers
to enter their apartment where police discovered three guns, one of which had a
red laser attachment; masks; gloves; a pill bottle, and an Xbox with a serial
number matching Contreras’ Xbox. The police arrested Gonzalez, who
admitted to participation in the burglary of Contreras’ house.
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[8] The State charged Gonzalez with five Class B felonies: robbery while armed
with a deadly weapon, 1 burglary, 2 criminal confinement, 3 conspiracy to commit
burglary, 4 and unlawful possession of a firearm by a serious violent felon. 5 A
jury found Gonzalez guilty of the first four charges. In a second stage of the
trial, the court found Gonzalez guilty of unlawful possession of a firearm by a
serious violent felon.
[9] On March 12, 2015, over the State’s objection, the trial court reduced the
robbery and criminal confinement convictions to Class C felonies because of
double jeopardy concerns. It sentenced Gonzalez to eight years for each Class
C felony and ordered the sentences served consecutively, for a total of sixteen
years. The trial court then sentenced Gonzalez to fifteen years for each Class B
felony to be served consecutively, for a total of forty-five years. Gonzalez’s
aggregate sentence was sixty-one years.
Discussion and Decision
[10] Article 1, Section 14 of the Indiana Constitution provides that “[n]o person
shall be put in jeopardy twice for the same offense.” We review de novo whether
a defendant’s convictions violate this provision. Spears v. State, 735 N.E.2d
1
Ind. Code § 35-42-5-1 (2013).
2
Ind. Code § 35-43-2-1(1) (2013).
3
Ind. Code § 35-42-3-3(b)(2) (2013).
4
Ind. Code § 35-43-2-1(1) (2013) (burglary); Ind. Code § 35-41-5-2 (2013).
5
Ind. Code § 35-47-4-5(c) (2013).
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1161, 1166 (Ind. 2000), reh’g denied. In Richardson v. State, 717 N.E.2d 32 (Ind.
1999), our Indiana Supreme Court held convictions of two crimes violate the
prohibition against double jeopardy if they can be considered the same offense;
that is, if the statutory elements of the crimes charged or the actual evidence
used to convict a defendant also establish all other essential elements of the
other crime. Id. at 50-54.
[11] The jury returned guilty verdicts for “Count I, Robbery While Armed With a
Deadly Weapon, a Class B Felony; Count II, Burglary, a Class B Felony;
Count III, Criminal Confinement, a Class B Felony; and Count IV, Conspiracy
to Commit Burglary, a Class B Felony.” (App. at 135.) In addition, Gonzalez
was convicted of “Unlawful Possession of a Firearm, a Class B Felony pursuant
to an agreed upon bench trial.” (Id.) In its sentencing order, the trial court
stated:
Court indicates it is the Court’s belief that there may be a
potential Richardson issue in this case with respect to the
enhancement of counts by the use of a deadly weapon. For that
reason, the Court revises the Judgments of Conviction to reflect
that Defendant is now convicted of Count I, Robbery, a Class C
Felony; Count II, Burglary, a Class B Felony; Count III,
Criminal Confinement, a Class C Felony; and Count IV,
Conspiracy to Commit Burglary, a Class B Felony; and Count V,
Unlawful Possession of a Firearm by a Serious Violent Offender,
a Class B Felony.
(Id. at 136) (emphasis added). The trial court noted the State’s objection to the
revision of the robbery and criminal confinement counts based on an alleged
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Richardson issue. We must determine whether Gonzalez’s conviction of Class B
felony unlawful possession of a firearm by a serious violent offender required
the trial court to reduce Gonzalez’s convictions of robbery and criminal
confinement from Class B to Class C felonies.
[12] Under the “actual evidence” test, we must examine the evidence presented at
trial to determine “whether each challenged offense was established by separate
and distinct facts.” Bruce v. State, 749 N.E.2d 587, 590 (Ind. Ct. App. 2001)
(quoting Richardson, 717 N.E.2d at 53), trans. denied. To demonstrate two
offenses are the same, there must be a reasonable possibility the facts used by
the jury to establish the essential elements of one offense were also used to
establish the essential elements of the second offense. Id. There must be more
than a remote or speculative possibility that the same facts were used. Id. To
determine what facts were used, we consider the evidence, charging
information, final jury instructions, and arguments of counsel. Id.
[13] The police found three guns in Gonzalez’s home, and the victims testified three
of the intruders used guns. One of the intruders pointed a gun with a “metal
flashlight on top,” (Tr. at 91), at Contreras’ head while she gave him money
from her purse, accomplishing the crime of Class B felony robbery while armed
with a deadly weapon. 6 Another intruder held a “gun that had a red laser on
6
Based on the charging information, the State had to prove “ARMANDO GONZALEZ, JR., Montrail
Williams, Matthew Allen, Antoine McDuffie, and Davon Crenshaw, and they and each of them, did, while
armed with a deadly weapon, to wit: firearm, knowingly took property from another person, to wit: U.S.
Currency from Cynthia Contreras, by putting any person in fear[.]” (App. at 14) (emphasis in original).
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it,” (id. at 235), to Silvestre’s head and tied her hands and feet; thus
accomplishing the crime of Class B felony criminal confinement. 7 Another
intruder possessed a firearm while unhooking the Xbox from Contreras’
television. Based on the evidence presented, the jury might not have relied on
the same evidence to convict Gonzalez 8 of all three crimes because three
different guns were used and the victims’ testimony permitted an inference the
guns were different. Taylor v. State, 929 N.E.2d 912, 922 (2010) (three
simultaneous convictions of possession of a handgun by a serious violent felon
did not violate Indiana’s prohibition against double jeopardy because Taylor
had three guns), trans. denied. Therefore, the trial court erred when it reduced
Gonzalez’s convictions of robbery and criminal confinement from Class B
felonies to Class C felonies. 9
Conclusion
[14] The trial court erred when it reduced Gonzalez’s convictions for robbery and
criminal confinement from Class B to Class C felonies based on double
7
Based on the charging information, the State had to prove “ARMANDO GONZALEZ, JR., Montrail
Williams, Matthew Allen, Antoine McDuffie, and Davon Crenshaw, and they and each of them, did, while
armed with a deadly weapon, to wit: firearm, knowingly confine another person, to wit: one Thaly Silvestre,
without out the consent of Thaly Silvestre.” (App. at 14) (emphasis in original).
8
Gonzalez, Crenshaw, and Williams were tried together and all were convicted under the accomplice
liability theory.
9
The charging information for the Class B burglary and Class B conspiracy to commit burglary charges did
not include the requirement a firearm must have been used in the commission of the crime.
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jeopardy concerns. Accordingly, we remand for resentencing with the
convictions of robbery and criminal confinement as Class B felonies. 10
[15] Remanded for resentencing consistent with the holding of this opinion.
Crone, J., and Bradford, J., concur.
10
Because we hold the trial court improperly sentenced Gonzalez, we need not decide his argument alleging
the improper imposition of consecutive sentences.
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