FILED
Dec 28 2018, 9:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dwayne A. Springfield, December 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1317
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1612-F2-47464
Riley, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1317 | December 28, 2018 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Defendant, Dwayne Springfield (Springfield), appeals his conviction
for one Count of possession of cocaine and a firearm, a Level 4 felony; one
Count of possession of a narcotic drug and a firearm, a Level 5 felony, one
Count of unlawful possession of a firearm by a serious violent felon (SVF), a
Level 4 felony; one Count of battery resulting in bodily injury to an officer; a
Level 5 felony; one Count of resisting law enforcement, a Class A
misdemeanor; one Count of possession of marijuana, a Class B misdemeanor.
[2] We affirm in part, reverse in part, and remand with instructions.
ISSUE
[3] Springfield presents a single issue on appeal, which we restate as follows:
Whether his conviction for Level 4 felony possession of cocaine and a firearm,
Level 5 felony possession of a narcotic drug and a firearm, and Level 4 felony
unlawful possession of a firearm by a SVF, violate the Double Jeopardy
provision of the Indiana Constitution.
FACTS AND PROCEDURAL HISTORY
[4] On December 6, 2016, Indianapolis Metropolitan Police Department Officer
Christopher Cooper (Officer Cooper), initiated a traffic stop of Springfield’s
GMC Sierra pickup truck since the license plate did not match the vehicle’s
description. After Springfield had pulled to the side of the road, Officer Cooper
approached the driver’s side window and requested Springfield’s license and
registration. At that point, Officer Cooper detected the smell of “raw
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marijuana” emanating from the vehicle. (Transcript Vol. II, p. 110). Officer
Cooper ordered Springfield out of the vehicle. Springfield did not comply.
Officer Cooper opened the door and “grabbed [Springfield’s] left wrist and []
guided him out of the vehicle.” (Tr. Vol. II, p. 113). For his safety, Officer
Cooper tried to handcuff Springfield; however, Springfield “tensed up” and
then “tried to run southbound.” (Tr. Vol. II, p. 113). Before he had run a great
distance, Officer Cooper took Springfield down to the ground. By that time,
other officers had arrived at the scene, and they helped with the arrest.
Springfield continued to resist arrest and an altercation ensued. During the
altercation, Springfield bit one officer and he also struck another officer in the
face. Eventually, the officers subdued and handcuffed Springfield.
[5] While patting down Springfield, a .38 revolver handgun was found in
Springfield’s right sweatshirt pocket. In Springfield’s left sweatshirt pocket,
there was a sock that had “multiple baggies of narcotics.” (Tr. Vol. II, p. 143).
The drugs later tested positive for eight grams of crack cocaine, three grams of
fentanyl, and one gram of marijuana.
[6] On December 12, 2016, the State filed an Information, charging Springfield
with Count I, dealing in cocaine while in possession of a firearm, a Level 2
felony; Count II, possession of cocaine and a firearm, a Level 4 felony; Count
III, dealing in a narcotic drug while in possession of a firearm, a Level 3 felony;
Count IV, possession of a narcotic drug and a firearm, a Level 5 felony; Count
V, unlawful possession of a firearm by a SVF, a Level 4 felony; Counts VI-VII,
battery resulting in bodily injury to an officer, Level 5 felonies; Count VIII,
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resisting law enforcement, a Class A misdemeanor; and Count IX, possession
of marijuana, a Class B misdemeanor. Also, the State filed a habitual offender
charge against Springfield, alleging that he had accumulated at least two prior
unrelated felony convictions.
[7] On April 12, 2018, a trifurcated jury trial was held. The first phase of the trial
involved all charges except for the Level 4 felony unlawful possession of a
firearm by a SVF and the habitual offender charge. At the close of the
evidence, the jury found Springfield guilty on Counts II, IV, V, VI, VIII, and
IX. During the second phase, the jury found Springfield guilty of Count V,
Level 5 felony unlawful possession of a firearm by a SVF. In the third phase, a
bench trial was conducted since Springfield had waived his right to a jury trial.
During the hearing, the State presented evidence of Springfield’s prior unrelated
convictions in relation to the habitual offender charge. At the close of the
evidence, the trial court adjudicated Springfield a habitual offender.
[8] On May 14, 2018, the trial court conducted a sentencing hearing. After the
parties had presented evidence, the trial court sentenced Springfield as follows:
ten years for Count II, Level 4 felony possession of cocaine and a firearm. That
sentence was enhanced by twenty years due to the habitual offender finding.
The trial court also sentenced Springfield to six years on Count IV, Level 5
felony possession of a narcotic drug and a firearm; twelve years on Count V,
Level 5 felony unlawful possession of a firearm by a SVF; six years on Count
VI, Level 5 felony battery resulting in bodily injury to an officer; one year on
Count VIII, Class A misdemeanor resisting law enforcement; and 180 days for
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Count IX, Class B misdemeanor possession of marijuana. Springfield’s
sentences were to run concurrently for an aggregate sentence of thirty years in
the Department of Correction.
[9] Springfield now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Springfield contends that his convictions for Level 4 felony possession of
cocaine and a firearm, Level 5 felony possession of a narcotic drug and a
firearm, and Level 5 felony unlawful possession of firearm by a SVF violate
Indiana’s Double Jeopardy principles since they were based on the same
evidence—i.e., “possession of a single gun.” (Appellant’s Br. p. 12).
[11] Article 1, Section 14 of the Indiana Constitution provides that “[n]o person
shall be put in jeopardy twice for the same offense.” Two or more offenses are
the same offense in violation of this section “if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.” Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999). Double jeopardy is violated when “a defendant’s
conviction for one crime is enhanced for . . . causing particular additional
harm” because that “harm cannot also be used as an enhancement of a separate
crime.” Id. at 56 (Sullivan, J., concurring). When two convictions are found to
violate double jeopardy principles, “a reviewing court may remedy the violation
by reducing either conviction to a less serious form of the same offense if doing
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so will eliminate the violation.” Richardson, 717 N.E.2d at 54. Whether
multiple convictions violate double jeopardy is a question of law, which this
Court reviews de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App.
2012).
[12] In addition, the Indiana Supreme Court has acknowledged five situations that
violate the Indiana Double Jeopardy clause: (1) conviction and punishment for
a crime which is a lesser-included offense of another crime for which the
defendant has been convicted and punished; (2) conviction and punishment for
a crime which consists of the very same act as another crime for which the
defendant has been convicted and punished; (3) conviction and punishment for
a crime which consists of the very same act as an element of another crime for
which the defendant has been convicted and punished; (4) conviction 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; and (5) conviction and punishment for the
crime of conspiracy where the overt act that constitutes an element of the
conspiracy charge is the very same act as another crime for which the defendant
has been convicted and punished. Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.
2002) (Sullivan, J., concurring)). “These rules are sometimes referred to as
Justice Sullivan’s categories because he first enumerated them in his concurring
opinion in Richardson.” Zieman v. State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013).
[13] Springfield argues, based on Guyton’s Category 5, his convictions for Level 4
felony possession of cocaine and a firearm, and Level 5 felony possession of a
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narcotic drug and a firearm, were based on the “possession of a single gun,”
and violate the Indiana double jeopardy law. (Appellant’s Br. p. 12).
[14] To convict Springfield of possession of cocaine, the State was required to prove
beyond a reasonable doubt that Springfield “without a valid prescription . . .
knowingly or intentionally possesse[d] cocaine[.]” I.C. § 35-48-4-6(a). The
offense is a Level 4 felony if “the amount of the drug involved is at least five (5)
but less than ten (10) grams and an enhancing circumstance applies.” I.C. § 35-
48-4-6(c)(2). An enhancing circumstance means “one or more of the following
. . . the person committed the offense while in possession of a firearm.” I.C. §
35-48-1-16.5(2). In Count II, the State alleged that Springfield, “did knowingly
or intentionally possess cocaine . . . weighing at least 5 grams, but less than 10
grams while . . . [Springfield was] in possession of a firearm.” (Appellant’s
App. Vol. II, p. 49).
[15] Further, to convict Springfield of possession of a narcotic drug, the State was
required to prove beyond a reasonable doubt that Springfield “without a valid
prescription . . . knowingly or intentionally possesse[d] . . . a narcotic drug.”
I.C. § 35-48-4-6(a). Where the amount of the drug involved is “less than five (5)
grams and an enhancing circumstance applies,” the offense is a Level 5 felony.
I.C. § 35-48-4-6(b)(2). Possessing a firearm during the commission of this
offense constitutes an enhancing circumstance. See I.C. § 35-48-1-16.5(2). As
charged in Count IV, the State alleged that Springfield, “did knowingly or
intentionally possess fentanyl, pure or adulterated, a narcotic drug classified in
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Schedule II[,] the said narcotic drug weighing less than 5 grams . . . while . . .
[Springfield was] in possession of a firearm.” (Appellant’s App. Vol. II, p. 49).
[16] Lastly, Indiana Code section 35-47-4-5 prohibits the unlawful possession of a
firearm by a serious violent felon. In relevant part the statute provides: “As
used in this section, ‘serious violent felon’ means a person who has been
convicted of: (1) committing a serious violent felony in . . . Indiana.” I.C. § 35-
47-4-5(a). The statute lists twenty-seven separate offenses qualifying as a
serious violent felony including robbery (I.C. § 35-42-5-1). I.C. § 35-47-4-
5(b)(13). As charged, in Count V, the State alleged that Springfield, “having
previously been convicted of a serious violent felony, to-wit robbery. a Class B
Felony, under cause number 49601-0409-FB-1 56857, did knowingly or
intentionally possess a firearm.” (Appellant’s App. Vol. II, p. 49).
[17] Springfield’s trial was trifurcated. At the end of the first phase, among other
Counts, the jury found Springfield guilty of Level 4 felony possession of cocaine
while armed with a firearm, and Level 5 felony possession of a narcotic while
armed with a firearm. During the SVF phase, the State moved to incorporate
all the evidence from the first phase and it submitted a certified document
relative to Springfield’s prior Class B felony robbery conviction committed in
2004. During closing arguments, the State argued, in part,
[Springfield] had been found guilty of robbery, Class B felony,
which classified him as a serious violent felon on December 6[],
2016. Because of that conviction, he is prohibited from lawfully
possessing a firearm. You have already found that he possessed
the firearm back on December 6[], 2016. Please take this
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evidence back with you, review it, and find him guilty on this
[C]ount.
(Tr. Vol. II, p. 250).
[18] “In situations where a defendant has been convicted of one crime for engaging
in the specified additional behavior or causing the specified additional harm,
that behavior or harm cannot also be used as an enhancement of a separate
crime; either the enhancement or the separate crime is vacated.” Richardson,
717 N.E.2d at 56 (Sullivan, J., concurring). Applying this common law
principle to Springfield’s case means that if we determine that he was convicted
and punished for the enhancement of possessing a firearm based on the same
behavior or harm that forms the basis of his unlawful possession of a firearm by
a SVF conviction, then double jeopardy principles are violated. It is readily
apparent that the State invited the jury to rely on evidence that Springfield had
a gun when he possessed cocaine and fentanyl, to also convict Springfield of
unlawful possession of a firearm by a SVF. The same conduct cannot
permissibly support both the enhancements and form the basis of a separate
crime.
[19] When two convictions are found to contravene double jeopardy principles, a
reviewing court may remedy the violation by reducing either conviction to a
less serious form of the same offense if doing so will eliminate the violation.
Zieman, 990 N.E.2d at 64. In the alternative, a reviewing court may vacate one
of the convictions to eliminate a double jeopardy violation. Id. In making that
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determination, we must be mindful of the penal consequences that the trial
court found appropriate. Id.
[20] Because Springfield was convicted and punished for the enhanced drug
offenses, based on the same behavior or harm—possession of a firearm—which
formed the basis of his unlawful possession of a firearm by a SVF, double
jeopardy principles were violated. To remedy the violation, we are reversing
Springfield’s conviction and accompanying sentence for the Level 5 felony
unlawful possession of a firearm. See Richardson, 717 N.E.2d at 54 (indicating
that when convictions violate double jeopardy principles, it is proper to vacate
the convictions with the less severe penal consequences).
CONCLUSION
[21] Based on the foregoing, we remand with instructions to the trial court to vacate
Springfield’s Level 5 felony unlawful possession of a firearm by SVF, and to
sentence him accordingly.
[22] Affirmed in part, reversed in part, and remanded with instructions.
[23] Kirsch, J. and Robb, J. concur
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