MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 11 2018, 8:37 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stevonta D. Hill, April 11, 2018
Appellant-Defendant, Court of Appeals Case No.
79A02-1709-CR-2196
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Thomas H. Busch,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79C01-1609-F3-35
Bailey, Judge.
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Case Summary
[1] Stevonta Hill (“Hill”) appeals his convictions for Count I, Conspiracy to
Commit Robbery as a Level 3 felony;1 Count XVIII, Use of a Firearm in
Commission of an Offense;2 and his sentence enhancement.
[2] We affirm in part and reverse in part.
Issues
[3] Hill raises the following two issues on appeal:
I. Whether the trial court abused its discretion when it
refused to give Hill’s proffered jury instruction on
conspiracy.
II. Whether the trial court erred when it enhanced Hill’s
sentence pursuant to the firearms enhancement statute.
Facts and Procedural History
[4] In 2014, Charles Hunter III (“Hunter”) conceived of a plan to rob the Industrial
Federal Credit Union (“the bank”) located on Meijer Drive in Lafayette, and
Hill, Michael Mitchell (“Mitchell”), and Ronnie Creed (“Creed”) subsequently
agreed to rob the bank with Hunter. On August 4, 2014, Hunter borrowed a
1
Ind. Code §§ 35-41-5-2(a) (2014) and 35-42-5-1 (2014).
2
I.C. § 35-50-2-11.
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Hyundai automobile from Hill’s sister, Tahtyana Bagsby (“Bagsby”). At
approximately 9:20 a.m. that same day, Hill, Hunter, Mitchell, and Creed
entered the bank wearing dark clothing, masks, and gloves, and they demanded
money from the bank employees. One of the men hit teller Maria Olivio
(“Olivio”) on the back of her head with a handgun, causing her to “black out a
little bit” and suffer a concussion. Tr. Vol. II at 85. Both Hill and Creed
possessed firearms during the robbery. The bank employees gave the four men
approximately $35,350 in cash and a dye pack with tear gas and red dye that
looked like $1,000 in $20 bills.
[5] As the four men drove away from the bank, the dye pack exploded in the car
and someone threw one of the bags of stolen money out of the vehicle. Hunter
attempted to clean the red dye off the inside of the Hyundai but was not
completely successful. He then returned the vehicle to Bagsby.
[6] The Lafayette Police Department (“LPD”) obtained still photographs from a
surveillance video of the robbery and distributed them to LPD personnel. One
of the LPD officers recognized Hunter in one of the still photos, and he was
aware of Hunter’s associates, including Hill. On August 14, 2014, patrol officer
Alvin Cudworth (“Officer Cudworth”) of the LPD was on duty and received a
request to conduct a traffic stop of a vehicle suspected of having false plates and
of being involved in the bank robbery. Officer Cudworth stopped the vehicle,
which was Bagsby’s Hyundai. Hill was the driver. After discovering that the
plates on the Hyundai were for a different vehicle, the LPD impounded the
vehicle and obtained a search warrant. During the search of the vehicle, the
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LPD took samples of pink-stained carpet from the vehicle and sent the samples
to the Indiana State Police laboratory. Testing of the carpet samples revealed
that the chemical on the stained carpet matched the chemical in the dye pack
from the August 4 bank robbery.
[7] On August 9, 2016, Hill testified before a grand jury under a grant of use
immunity. Hill denied involvement in the bank robbery and testified that he
had not seen either Mitchell or Hunter on the morning of August 4, 2014. Hill
further testified that he did not recognize any of the individuals depicted in the
bank security video and denied knowledge of how the dye stains got into his
sister’s Hyundai. On September 17, 2016, the grand jury returned an
indictment charging Hill with nineteen counts: conspiracy to commit robbery,
as a Level 3 felony; robbery, as a Level 3 felony;3 criminal confinement, as a
Level 3 felony;4 criminal confinement, as a Level 5 felony;5 robbery, as a Level
5 felony;6 theft, as a Level 6 felony;7 criminal confinement, as a Level 6 felony;8
two counts of intimidation, as Level 6 felonies;9 carrying a handgun without a
3
I.C. § 35-42-5-1(a).
4
I.C. § 35-42-3-3(a) and (b)(2).
5
I.C. § 35-42-3-3(a) and (b)(1).
6
I.C. § 35-42-5-1(a)(1).
7
I.C. § 35-43-4-2(a)(1).
8
I.C. § 35-42-3-3(a).
9
I.C. § 35-45-2-1(a) and (b)(1).
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license, as a Class A misdemeanor;10 obstruction of justice, as a Level 6 felony;11
battery by means of a deadly weapon, as a Level 5 felony; 12 battery resulting in
moderate bodily injury, as a Level 6 felony;13 criminal recklessness while armed
with a deadly weapon, as a Level 6 felony;14 pointing a firearm, as a Level 6
felony;15 perjury, a Level 6 felony;16 pointing a firearm, as a Class A
misdemeanor;17 intimidation, as a Class A misdemeanor;18 and use of a firearm
during the commission of an offense. Prior to trial, the court dismissed the
misdemeanor intimidation charge.
[8] Hill’s trial proceeded in two phases. The first phase was tried to a jury from
July 31, 2017 to August 2, 2017 and consisted of all charges except the firearm
sentencing enhancement and the perjury charge. In the second phase, the latter
charges were tried to the bench following Hill’s jury waiver as to those two
charges. At the close of evidence, the court dismissed Count XIV, pointing a
firearm as a Level 6 felony, per the State’s request.
10
I.C. § 35-47-2-1(a)(e).
11
I.C. § 35-44.1-2-2(a)(3).
12
I.C. § 35-42-2-1(b) and (f)(2).
13
I.C. § 35-42-2-1(b) and (d)(1).
14
I.C. § 35-42-2-2(a) and (b)(1)(A).
15
I.C. § 35-47-4-3(b).
16
I.C. § 35-44.1-2-1(a)(1).
17
I.C. § 35-47-4-3(b).
18
I.C. § 35-45-2-1(a).
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[9] At trial, Hill requested that the court include one of the following two
instructions on conspiracy:
(1) Conspiracies cannot be established by a mere suspicion.
Evidence of mere relationship or association between the
parties do not show a conspiracy. Johnson v. State, 1933, 208
Ind. 89, 95, 194 N.E. 619; Kelley v. State, 1936, 210 Ind. 380,
385, 3 N.E.2d 65; Weer v. State, 1941, 219 Ind. 217, 232, 36
N.E.2d 787, 37 N.E.2d 537; Shonfeld v. State, 1942, 219 Ind.
654, 666, 667, 40 N.E.2d 700; Eacock v. State, 1907, 169 Ind.
488, 502, 82 N.E. 1039; § 10-1101, Burns’ 1942 Replacement,
supra.
Coughlin v. State, 228 Ind. 393, 395, 92 N.E.2d 718, 719 (1950)
(2) Conspiracies cannot be established by mere suspicion, nor
does evidence of mere relationship between parties or
association show “conspiracy,” but there must be evidence to
prove agreement directly or such state of facts that agreement
may be legally inferred, though agreement need not be proved
by direct evidence.
Johnson v. State, 208 Ind. 89, 194 N.E. 619 (1935)
Appellant’s App. at 58-59. The trial court denied Hill’s two proposed
instructions on conspiracy because the content of those instructions was already
contained in other jury instructions.
[10] The jury found Hill guilty on all charges, and the trial court found Hill guilty of
perjury and unlawful use of a firearm as an enhancement. On August 28, 2017,
the trial court held a sentencing hearing. Due to double jeopardy concerns, the
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trial court entered a judgment of conviction only on Count I, Conspiracy to
Commit Robbery as a Level 3 felony; Count II, Robbery as a Level 3 felony;
Count XVI, Carrying a Handgun without a License as a Class A misdemeanor;
Count XVII, Obstruction of Justice as a Level 6 felony; Count XVIII, Use of
Firearm in Commission of an Offense; and Count XIX, Perjury, a Level 6
felony. The court merged the remaining charges into Count II, the robbery
conviction.
[11] The court sentenced Hill to twelve years imprisonment on Count I; twelve years
on Count II; one year on Count XVI; two and a half years on Count XVII; and
one and a half years on Count XIX. The court ordered the sentences on Counts
I, II, and XVI to be served concurrent with one another. It ordered the
sentences on Counts XVII and XIX to be served concurrent to one another but
consecutive to the sentences on Counts I, II and XVI. The trial court enhanced
the sentence on Count II by an additional term of five years based on the
sentencing enhancement in Count XVIII. Hill’s total sentence is nineteen and a
half years to be executed in the Indiana Department of Correction. This appeal
ensued.
Discussion and Decision
Jury Instructions on Conspiracy Charge
[12] Hill appeals the trial court’s denial of his proposed jury instructions on the
conspiracy to commit robbery charge.
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Upon review of a trial court’s decision to give or refuse a jury
instruction, we apply an abuse of discretion standard. Treadway
v. State, 924 N.E.2d 621, 636 (Ind. 2010) (internal citation
omitted). “[T]his Court considers: (1) whether the instruction
correctly states the law; (2) whether there is evidence in the
record to support the giving of the instruction; and (3) whether
the substance of the tendered instruction is covered by other
instructions which are given.” Guyton v. State, 771 N.E.2d 1141,
1144 (Ind. 2002) (internal citation omitted). Reversal arises
“only if the appellant demonstrates that the instruction error
prejudices his substantial rights.” Treadway, 924 N.E.2d at 636
(internal citation omitted).
Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). Moreover, “[w]e consider
jury instructions as a whole and in reference to each other and do not reverse
the trial court ... unless the instructions as a whole mislead the jury as to the law
in the case.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013) (quotation
and citation omitted), trans. denied.
[13] The substance of Hill’s proposed jury instructions was contained in other final
jury instructions the trial court gave—specifically, Court’s Instruction No.
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3.5700;19 Court’s Instruction No. 2.1600;20 Court’s Instruction No. 9.0120;21 and
Court’s Instruction No. 12.0100.22 So it is not surprising that Hill has failed to
demonstrate how he was in any way prejudiced by the trial court’s refusal to
19
This instruction stated, in relevant part:
A person conspires to commit a felony when, with intent to commit the felony, he agrees with
another person to commit the felony. A conspiracy to commit a felony is a felony of the same class
as the underlying felony. The State must allege and prove that either the person or the person with
whom he agreed performed an overt act in furtherance of the agreement.
***
Count I
Before you may convict the Defendant of Conspiracy to Commit Robbery [as] a Level 5 felony, as
charged in Count I, the State must have proved each of the following elements beyond a reasonable
doubt:
1. The Defendant
2. agreed with other persons, Charles D. Hunter III, Michael A. Mitchell, and/ or unknown others,
to commit the crime of Robbery
3. with the intent to commit the crime, and
4. Defendant and the other persons, Charles D. Hunter III, Michael A. Mitchell, and/or unknown
others performed an overt act in furtherance of the agreement …
***
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the
Defendant not guilty of the crime of Conspiracy to Commit Robbery, a Level 5 felony, charged in
Count I.
If the State proved elements 1, 2, 3, and 4 beyond a reasonable doubt and the State further proved
beyond a reasonable doubt that
a. a deadly weapon, to wit: a handgun, was used in the robbery or
b. the robbery resulted in bodily injury to any person other than a conspirator,
you may find the Defendant guilty of Conspiracy to Commit Robbery, a Level 3 felony, charged in
Count I.
Appellant’s App. at 36.
20
This instruction stated, in relevant part: “A person who knowingly or intentionally aids, induces, or
causes another person to commit an offense commits that offense.” Id. at 48.
21
This instruction explained the meaning of the terms “intentionally” and “knowingly.” Id.
22
This instruction explained the meaning of the terms “direct evidence” and “circumstantial evidence” and
gave examples of each term. Id. at 52.
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give his proposed jury instructions. That refusal was not an abuse of the trial
court’s discretion. Hernandez, 45 N.E.3d at 376.
Firearm Sentence Enhancement
[14] Hill challenges the five-year sentence enhancement the trial court entered
pursuant to Indiana Code Section 35-50-2-11. Indiana Code section 35-50-2-11
(2014), the firearm enhancement statute, provides:
(a) As used in this section, “firearm” has the meaning set forth in
IC 35-47-1-5.
(b) As used in this section, “offense” means:
(1) a felony under IC 35-42 that resulted in death or
serious bodily injury;
(2) kidnapping; or
(3) criminal confinement as a Level 2 or Level 3 felony.
(c) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed
an offense sentenced to an additional fixed term of imprisonment
if the state can show beyond a reasonable doubt that the person
knowingly or intentionally used a firearm in the commission of
the offense.
(d) If the person was convicted of the offense in a jury trial, the
jury shall reconvene to hear evidence in the enhancement
hearing. If the trial was to the court, or the judgment was entered
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on a guilty plea, the court alone shall hear evidence in the
enhancement hearing.
(e) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person knowingly or intentionally used
a firearm in the commission of the offense, the court may
sentence the person to an additional fixed term of imprisonment
of between five (5) years and twenty (20) years.
[15] Hill was indicted with criminal confinement as a Level 3 felony, Appellant’s
App. at 106, and the jury returned a verdict of guilty on that count, i.e., Count
IV. Hill was also indicted with the use of a firearm “in the commission of
criminal confinement as a Level 2 or Level 3 felony,” Id. at 121, and the trial
court found him guilty on that count, i.e., Count XVIII. However, due to
double jeopardy concerns, the trial court only entered a judgment of conviction
on Count I (conspiracy to commit robbery), Count II (robbery), Count XVI
(carrying a handgun without a license), Count XVII (obstruction of justice),
Count XVIII (use of firearm in commission of an offense for purposes of
sentence enhancement), and Count XIX (perjury). For all remaining counts,
including Count IV (criminal confinement as a Level 3 felony), the trial court
did not enter judgments of conviction but rather merged them with Count II
(robbery).
[16] Hill correctly points out that Count II, robbery as a Level 3 felony, cannot
support a firearm sentence enhancement. Count II involves robbery while
armed with a deadly weapon or that results in bodily injury, I.C. § 35-42-5-1(a),
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but the firearm enhancement statute only applies to felonies under IC 35-42 that
result in serious bodily injury, I.C. § 35-50-2-11(b). Compare I.C. § 35-31.5-2-29
(defining “bodily injury” as “any impairment of physical condition, including
physical pain”), with I.C. § 35-31.5-2-292 (defining “serious bodily injury” as
“bodily injury that creates a substantial risk of death or that causes: (1) serious
permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent
or protracted loss or impairment of the function of a bodily member or organ;
or (5) loss of a fetus.”). The evidence shows that Hill was armed with a gun
during the robbery and that bank teller Olivio “blacked out a little bit” and
suffered a concussion as a result of the blow to her head with a firearm. Tr.
Vol. II at 85. Thus, the State only charged Hill with robbery while armed with
a deadly weapon or involving “bodily injury”—a Level 3 felony—and the
evidence supports the finding Hill committed that offense, rather than one
involving “serious” bodily injury. I.C. § 35-42-5-1(a).
[17] However, the State contends that Count IV—criminal confinement as a Level 3
felony—supported the five-year sentence enhancement pursuant to Indiana
Code Section 35-50-2-11(b)(3), even though Count IV was merged and the trial
court did not enter a judgment of conviction on it. The State avers that the
language in section (e) of the firearm enhancement statute—which states that
the court may enhance a sentence if “the state has proved beyond a reasonable
doubt that the person knowingly or intentionally used a firearm in the
commission of the offense”—does not require a judgment of conviction of the
enumerated offense, only that the State prove such offense beyond a reasonable
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doubt. And the State notes that it did prove Count IV beyond a reasonable
doubt, as shown by the jury’s guilty verdict on that count.
[18] Resolution of this issue requires that we construe the meaning of Indiana Code
Section 35-50-2-11, the firearm enhancement statute. Statutory construction
and interpretation are matters of law and we review them de novo. E.g., Suggs
v. State, 51 N.E.3d 1190, 1193 (Ind. 2016).
When construing a statute our primary goal is to ascertain the
legislature’s intent. Adams v. State, 960 N.E.2d 793, 798 (Ind.
2012). To discern that intent, we look first to the statutory
language itself and give effect to the plain and ordinary meaning
of statutory terms. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind.
2015). “If a statute is unambiguous, that is, susceptible to but
one meaning, we must give the statute its clear and plain
meaning.” State v. Evans, 810 N.E.2d 335, 337 (Ind. 2004)
(quotation omitted). However, if a statute admits of more than
one interpretation, then it is ambiguous; and we thus resort to
rules of statutory interpretation so as to give effect to the
legislature’s intent. Adams, 960 N.E.2d at 798. “For example,
we read the statute as whole, avoiding excessive reliance on a
strict, literal meaning or the selective reading of individual
words.” Id. And we seek to give a practical application of the
statute by construing it in a way that favors public convenience
and avoids an absurdity, hardship, or injustice. Merritt v. State,
829 N.E.2d 472, 475 (Ind. 2005). Further, criminal statutes must
be strictly construed against the State, and “may not be enlarged
beyond the fair meaning of the language used....” Yao v. State,
975 N.E.2d 1273, 1279 (Ind. 2012) (internal citation omitted).
Id.
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[19] The State cites no authority—other than the language of the statute itself—for
its contention that a sentence enhancement can be applied to a crime for which
a defendant was not convicted. Yet it is well-settled that a sentence cannot be
based on a jury verdict of guilty unless a judgment of conviction is entered on
that verdict. See, e.g., Jerden v. State, 37 N.E.3d 494, 501 (Ind. Ct. App. 2015)
(quoting Haddix v. State, 827 N.E.2d 1160, 1165 (Ind. Ct. App. 2005), trans.
denied) (“‘A verdict is the jury’s finding of guilt, but such finding carries no legal
consequences unless the trial court enters a judgment of conviction on the
verdict.’”)
A verdict of guilty can certainly be a significant legal event, but
only if a court later enters judgment on it. … [A] verdict of guilt
on which no judgment or sentence has been entered would not
constitute legal grounds for incarceration. We treat the
judgments and sentences entered by courts in a different way
[than we treat jury verdicts alone].
Carter v. State, 750 N.E.2d 778, 780 (Ind. 2001) (explaining why it was not
necessary for double jeopardy purposes to vacate the jury’s guilty verdict on a
lesser included offense).
[20] Moreover, the State emphasizes the “proved beyond a reasonable doubt”
language of section (e) of the statute while ignoring section (d), which clearly
requires a hearing on an enhancement after “the person was convicted of the
offense.” I.C. § 35-50-2-11(d) (emphasis added). But when we interpret a
statute, we examine the statute as a whole and “avoid interpretations that
depend on selective reading of individual words that lead to irrational and
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disharmonizing results.” ESPN, Inc. v. University of Notre Dame Police Dept., 62
N.E.3d 1192, 1195 (Ind. 2016) (quotation and citation omitted). The only
harmonious interpretation of both sections (d) and (e) of the firearm
enhancement statute is that section (d) requires a hearing on enhancement if the
defendant is convicted of an enumerated offense and, if the trier of fact at the
hearing finds that the State proved beyond a reasonable doubt that the
defendant used a firearm while engaging in the offense of which he was convicted,
the court may enhance the sentence for the underlying offense.
[21] Given well-settled case law, the language of the statute as a whole, and our rule
of lenity requiring that penal statutes be construed strictly against the State, we
reach the logical conclusion that a sentence cannot be enhanced pursuant to the
firearm enhancement statute unless a judgment of conviction is entered against
the defendant for one of the enumerated offenses. Therefore, Hill’s firearm
enhancement cannot be supported by the jury verdict finding him guilty of
criminal confinement as a Level 3 felony because the trial court did not enter a
judgment of conviction on that verdict.
[22] The trial court improperly enhanced Hill’s robbery sentence by five years; the
crime of robbery as a Level 3 felony cannot support a firearm sentence
enhancement under Indiana Code Section 35-50-2-11, nor was there any other
conviction that would support such an enhancement. Therefore, we must reverse
the judgment of conviction for Count XVIII, Use of Firearm in Commission of
an Offense, and vacate the five-year sentence enhancement entered pursuant to
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Indiana Code Section 35-50-2-11.23 See e.g., Hull v. State, 799 N.E.2d 1178, 1181
(Ind. Ct. App. 2003) (“A sentence in contravention of statutory authority
constitutes “fundamental error” and cannot be ignored by a court of review.”).
Conclusion
[23] The trial court did not abuse its discretion when it refused to give Hill’s
proffered jury instruction on conspiracy, since the substance of that instruction
was addressed by the other instructions the court gave the jury. Therefore, we
affirm Hill’s conspiracy conviction under Count I. However, the trial court
erred in enhancing Hill’s sentence by five years under the firearm enhancement
statute because Hill was not convicted of any offense that would support such
an enhancement. Thus, we reverse the judgment of conviction for Count XVIII
and vacate the five-year sentence enhancement entered pursuant to Indiana
Code Section 35-50-2-11.
23
The State has provided us with no authority for its request that we vacate the robbery conviction—a
perfectly legal judgment—for the sole purpose of ordering the trial court to enter judgment of conviction on a
jury verdict on a different charge—i.e., criminal confinement as a Level 3 felony—that would support a
firearm enhancement. Unlike in Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), cited by the State, we have
no double jeopardy violation to remedy here as there are not two convictions involving the same evidence,
but only one conviction (robbery) and one jury verdict (criminal confinement). And, as we have already
noted, a merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a
sentence, is “unproblematic” as far as double jeopardy is concerned. Carter, 750 N.E.2d at 781.
In short, if the State wanted Hill’s sentence enhanced for use of a firearm, it should have requested that the
trial court enter judgment on a charge that would support such an enhancement.
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[24] Affirmed in part, reversed in part.
Crone, J., and Brown, J., concur.
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