Davidson v. State

ATTORNEYS FOR APPELLANT

Susan K. Carpenter
Public Defender of Indiana

C. Brent Martin
Deputy Public Defender
Indianapolis, IN

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

JOHNIE E. DAVIDSON, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 22S01-0101-PC-42
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 22A01-0004-PC-116
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Richard C. Striegel, Judge
Cause No. 22D01-8901-CF-1
__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

February 19, 2002

BOEHM, Justice.
Johnie E. Davidson was tried in a single proceeding for several
different crimes occurring in four separate instances at four different
locations. After being found guilty of all charges except one, he was
given consecutive sentences totaling 81 years. On appeal from the denial
of postconviction relief, the Court of Appeals found Davidson’s trial
counsel ineffective for failing to move for separate trials that, if
granted, would have prevented the imposition of consecutive sentences.
Davidson v. State, 735 N.E.2d 325, 329 (Ind. Ct. App. 2000). Although we
agree with the Court of Appeals that a severance could have precluded
consecutive sentences under the then-governing law, we believe Davidson’s
counsel’s failure to seek a severance was not substandard performance under
the circumstances.

Factual and Procedural Background

In January 1989, Davidson was charged with committing a variety of
crimes against four different victims on four separate occasions at four
different locations. Davidson was accused of the following:
(1) On December 4, 1988, Davidson entered Ace Food Mart in New Albany,
Indiana and demanded money from cashier Hope Stephens. After Stephens gave
Davidson approximately $350-400, Davidson fled. Davidson was charged with
robbery.
(2) On December 22, 1988, Davidson entered Swifty Food Mart in New Albany,
placed a pistol on the counter, and demanded money from cashier Sandra
Casey. Casey gave him money and Davidson left the store. Davidson was
charged with robbery.
(3) On January 1, 1989, at approximately 3:00 a.m., Davidson approached Dr.
George Raque in the parking lot of a hospital in Louisville, Kentucky.
Davidson ordered Raque at gunpoint to get in his car and drive. After the
car crossed over the Ohio River into Indiana, Davidson demanded money, but
Raque had only $10 or $12. Davidson then ordered Raque out of the car in
a dead-end alley in New Albany. Raque tried to escape, Davidson hit him in
the head with his gun, and the two returned to the car. As Davidson was
entering, Raque drove off. Davidson was charged with attempted robbery,
criminal confinement, and battery.
(4) On January 1, 1989, at about 4:00 or 5:00 a.m., Edwin McClure had just
left Moore’s Supermarket in New Albany and was placing his groceries on the
seat of his vehicle when Davidson approached him with a gun in his hand and
ordered him to get in the car. McClure fled as Davidson was getting into
the car. Davidson was charged with attempted robbery.
In March 1989, Davidson was tried on all these charges in a single
proceeding. Davidson’s attorney attempted to show that the victims gave
substantially different descriptions of the perpetrator and that the police
rushed to judgment in order to solve this string of robberies. One victim
reported the perpetrator was 5’4” to 5’6” with “dark black” skin, while
another victim described the perpetrator as 5’9” to 5’10” with “medium
black” skin. One victim told the police the perpetrator had the gun in his
left hand while another victim described the perpetrator as right-handed.
Dr. Raque reported the perpetrator had some facial hair, like a goatee or a
“little mustache [that] go[es] around the mouth,” a dark colored jacket,
and a hat. On the other hand, McClure, who was allegedly approached by the
perpetrator within hours of Raque, described the perpetrator as having no
facial hair, a light blue dress jacket or suit coat, and no hat.
Davidson was found guilty of all counts except the robbery at the Ace
Food Mart. He was sentenced to the maximum sentence on each count with all
time to be served consecutively—a collective sentence of 81 years. The
Court of Appeals affirmed the convictions. Davidson v. State, 557 N.E.2d 8
(Ind. Ct. App. 1990).
Davidson sought postconviction relief contending: (1) his trial
counsel was ineffective for failing to move for separate trials which, if
granted, would have prevented the imposition of consecutive sentences; (2)
his trial counsel was ineffective for failing to object to the trial
court’s use of impermissible aggravators to impose the maximum possible
sentence; and (3) his appellate counsel was ineffective for failing to
raise these two issues on direct appeal. The postconviction court denied
relief.
On appeal, the Court of Appeals concluded that Davidson’s counsel’s
failure to move for a severance was substandard performance and resulted in
consecutive sentences that could not have been imposed in separate trials.
Davidson, 735 N.E.2d at 329. The Court of Appeals reversed and remanded
the case to the trial court with instructions to vacate the order directing
Davidson to serve consecutive sentences. Id. at 329-30. We granted the
State’s petition to transfer to address the severance issue.
Standard of Review
A postconviction relief proceeding “is not a substitute for trial and
appeal, but is a process for raising issues which were unknown or not
available at trial.” State v. Hollon, 494 N.E.2d 280, 282 (Ind. 1986).
Davidson bore the burden in the postconviction court of establishing the
grounds for relief by a preponderance of the evidence. Ind. Post-
Conviction Rule 1(5). Because Davidson appeals from a negative judgment
delivered by the postconviction court, this Court will reverse the denial
of postconviction relief only if the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the postconviction
court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). In this
review, findings of fact are accepted unless “clearly erroneous,” Ind.
Trial Rule 52(A), but no deference is accorded conclusions of law. State
v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996). The postconviction
court is the sole judge of the weight of the evidence and the credibility
of witnesses. See, e.g., Stewart v. State, 517 N.E.2d 1230, 1231 (Ind.
1988).
I. Ineffective Assistance of Trial Counsel
Under Strickland v. Washington, 466 U.S. 668 (1984), a claim of
ineffective assistance of counsel requires a showing that: (1) counsel’s
performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant so much that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 687, 694; Lowery v.
State, 640 N.E.2d 1031, 1041 (Ind. 1994).
Davidson contends that both prongs of the Strickland test are met.
First, he argues that his counsel’s performance was below an objective
level of reasonableness because his counsel did not seek separate trials on
the four sets of charges. Second, Davidson contends that the result of the
proceeding would have been different because if he had been granted
separate trials and found guilty at all four trials, the sentence he would
have received would not have exceeded 41 years. At the time of Davidson’s
trial, this Court had held that a trial court could order sentences to be
served consecutively only if the court was contemporaneously imposing two
or more sentences. Kendrick v. State, 529 N.E.2d 1311, 1312 (Ind. 1988).
In Kendrick, the defendant pleaded guilty to one of several counts pending
in a single case in the Marion County Superior Court, Division One. In
exchange for this plea, the other charges in this single cause were
dropped. At the same time, there were other charges pending against the
defendant in another division of the Marion County Superior Court, but
those charges were not mentioned in the plea agreement or at the plea
proceeding in Division One. The court accepted the plea without fulfilling
its statutory duty of advising the defendant of the possibility of
consecutive sentences. Following the imposition of the sentence in
Division One, the defendant entered another guilty plea to the other
pending charges and received two sentences to run consecutive to one
another and consecutive to the sentence given by the Division One Court.
The defendant sought to withdraw his guilty plea in Division One because he
had not been advised that he could receive later sentences that could be
ordered to run consecutively to the one he would then be serving. Id. at
1311.
At the time Kendrick was decided, an Indiana statute provided, “[T]he
court shall determine whether terms of imprisonment shall be served
concurrently or consecutively.” Ind. Code § 35-50-1-2(a) (1988). This
Court in Kendrick held that the trial court’s authority to impose
consecutive sentences arises only (1) when it has a mandatory duty to do so
under section 35-50-1-2(b) or (2) “when a court is meting out two or more
terms of imprisonment.” Kendrick, 529 N.E.2d at 1312. Accordingly, in
Kendrick, the Division One Court had no authority to impose consecutive
sentences because it was not meting out two or more terms of imprisonment.
Id.
The Kendrick rule was bolstered by another case involving two trials
for four separate sales of controlled substances. Seay v. State, 550
N.E.2d 1284 (Ind. 1990). In Seay, the defendant made four separate sales
to a police informant and an undercover police officer. The defendant was
charged with two counts of dealing in a controlled substance based on sales
made on July 14, 1986 and August 4, 1986. He was tried and convicted of
those charges in February 1987. While the jury was deliberating his case,
the State filed charges on the other two sales of controlled substances,
one occurring on August 14, 1986 and the other on September 2, 1986. Id.
at 1286. Those charges were tried in August 1987 and resulted in two
consecutive sentences, both of which were ordered to be served
consecutively to the sentences imposed by his February trial. Id. at 1286-
87. Citing Kendrick, this Court concluded that the trial court in the
defendant’s second case acted beyond the scope of its authority in ordering
the sentence to be served consecutively to that imposed by the trial court
in the first case. Id. at 1289. This Court concluded:
The trial court [in the second case] was fully authorized to order its
sentence in Count II to be served consecutively to its sentence in
Count I since these were contemporaneously before the court. However,
the sentence [defendant] had previously received from another court in
another cause was not a proper subject for this court’s consideration
in determining the propriety of consecutive sentences, and the court
acted beyond the scope of its authority when it ordered the
commencement of the instant sentence to be postponed until the
completion of the sentence imposed in [the first case].

Id.; see also Bartruff v. State, 553 N.E.2d 485, 488 (Ind. 1990) (The
discretionary authority to give consecutive sentences is “limited to
situations in which the trial court is contemporaneously imposing the two
sentences to be served consecutively.”).
Kendrick and its progeny are no longer the law by reason of 1994
amendments to the statute governing consecutive sentences. Ind. Code § 35-
50-1-2(c) (1998). However, at the time Davidson was tried in 1989, it was
settled precedent from this Court that a sentence could not be ordered to
be served consecutively to another sentence entered by another court.
Kendrick, 529 N.E.2d at 1312.
Justice Sullivan points to Buell v. State, 668 N.E.2d 251 (Ind. 1996)
and Elswick v. State, 706 N.E.2d 592 (Ind. Ct. App. 1999), trans. denied,
for the proposition that Kendrick is not applicable to this case because
the charges upon which the sentences were imposed were of similar character
and were charged in the same information. In Buell, the defendant was
charged in the abduction and killing of his girlfriend and his girlfriend’s
mother. 668 N.E.2d at 251-52. The jury found the defendant guilty of
voluntary manslaughter of the mother, but could not reach a verdict
concerning the murder of his girlfriend. A mistrial was declared by the
court on that issue. Subsequently, the defendant was tried a second time
by a different jury for murdering and conspiring to murder his girlfriend.
The second jury found the defendant guilty of both charges. The sentences
from the second trial were to run consecutively to the sentences earlier
imposed. This Court held that Kendrick did not apply because the judge
imposed “consecutive sentences for closely related offenses that were first
charged in the same information and all tried in the same court.” Id. at
252. This Court noted, “But for the hung jury and subsequent mistrial, the
court would have sentenced [the defendant] on all counts
contemporaneously.” Id. See also Elswick, 706 N.E.2d at 595 (holding
Kendrick inapplicable because the defendant’s conspiracy conviction was
closely related to the murder and attempted murder convictions and because
the trial judge imposing the sentences presided over both trials).
Davidson’s situation is wholly unlike Buell. The defendant in Buell
was charged with multiple counts arising from the same incident. He had no
statutory right to insist on separate trials, and the retrial that produced
additional consecutive sentences was properly viewed as an extension of the
trial that produced the first sentence. In contrast, Davidson was faced
with four unrelated incidents and had a right to demand separate trials.
Indeed, Indiana Code section 35-34-1-11(a) provides, “Whenever two (2) or
more offenses have been joined for trial in the same indictment or
information solely on the ground that they are of the same or similar
character, the defendant shall have the right to a severance of the
offenses.” Ind. Code § 35-34-1-11(a) (1998).
The facts in Elswick v. State, 706 N.E.2d 592 (Ind. Ct. App. 1999),
trans. denied, demonstrate the problem in a broad application of the rule
that a separate sentencing procedure cannot result in a consecutive
sentence. If consecutive sentences are impossible, short of the risk of
the death penalty or life without parole, a defendant like Elswick, faced
with a murder charge, has no incentive to avoid other crimes, including
attempts to intimidate or even kill witnesses, as long as those crimes
carry only equal or shorter penalties. Presumably for that reason the
statutory underpinning of Kendrick has been removed. The Court of Appeals
in Elswick distinguished Kendrick on the grounds that the second crime was
a conspiracy to kill a witness in the first, and was therefore “closely
related” to the first crime. Even if this was a valid distinction under
the Kendrick regime, it is inapplicable to Davidson, whose crimes were
related only in the sense that they were repetitive and similar. The same
is true in Seay, and Elswick offers no more support than Buell for the
proposition that Davidson, if given separate trials, could suffer
consecutive sentences under Kendrick. We conclude that the law at the time
of Davidson’s trial was as the Court of Appeals in this case declared it,
and failure to seek a severance was a blunder of major consequence unless
justified by some strategy.
Given that Kendrick was the law in 1989, unless there was some good
reason to permit a trial of all counts, it seems obvious that separate
trials would give a defendant the advantage of avoiding the risk of
cumulative accusations, and also provide the prospect of a requirement
under Kendrick that the sentences not be imposed consecutively. However,
we do not agree with the apparent implication of the Court of Appeals that
failure to seek a severance is virtually per se incompetent representation.
Given the result of the joint trial, it is clear that Davidson would have
been better off if separate trials had been demanded. However, we think
this issue, like any other claim of substandard performance, must be
evaluated in light of the information and choices available to counsel at
the time, not in hindsight.
A reviewing court “will not second-guess the propriety of trial
counsel’s tactics.” Lowery, 640 N.E.2d at 1041. It is well established
that “trial strategy is not subject to attack through an ineffective
assistance of counsel claim, unless the strategy is so deficient or
unreasonable as to fall outside of the objective standard of
reasonableness.” Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
“This is so even when ‘such choices may be subject to criticism or the
choice ultimately prove detrimental to the defendant.’” Id. (quoting
Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992)).
At trial, the defense sought to make much of the differences in
descriptions of the perpetrators of the four separate robberies, suggesting
that the State, in its zeal to get a conviction, had seized the wrong man.
Stephens reported that the perpetrator was about 5’9” or 5’10” with short
hair, “medium black” skin, and no facial hair. She also stated to police
that the perpetrator held the gun in his left hand. Casey described the
perpetrator as about 5’4” to 5’6” with “close cut hair,” “dark black” skin,
and a pockmarked face. Raque testified that the perpetrator held the gun
in his right hand. He also reported that the perpetrator was about 5’9”
with “puffy” hair, some facial hair that looked like a goatee or a “little
mustache [that] go[es] around the mouth,” wore a dark colored jacket and a
hat. McClure, who was allegedly approached by the perpetrator within hours
of Raque, testified that the perpetrator was about 5’6” to 5’7” with his
hair like it was at trial (not cut for more than six months), a pockmarked
face, no facial hair, a light blue dress jacket or suit coat, and no hat.
Based on these inconsistent descriptions, Davidson’s counsel argued that
the police were under a great deal of pressure to find the person or
persons who committed these crimes and rushed to judgment in charging
Davidson. Indeed, trial counsel was successful in gaining an acquittal for
the robbery at Ace Food Mart.
The postconviction testimony from trial counsel was that (1) he was
sure he would have considered a severance; (2) he did not recall his
ruminations on that subject; and (3) he did not recall the law at the time
on the consecutive sentences. The mere fact that counsel could not
remember the events from eleven years ago does not establish deficient
performance. See, e.g., Howey v. State, 557 N.E.2d 1326, 1330 (Ind. 1990).
The postconviction court made no specific finding as to whether the
decision was the product of strategy or oversight, but denied relief on the
basis that trial counsel provided effective representation. On this record
we cannot say that finding was unsupportable, and we therefore find
Davidson has not met the first prong of the Strickland test.
II. Ineffective Assistance of Appellate Counsel
This Court has noted that appellate counsel is not obligated to look
outside the record for possible claims of error before counsel’s
performance will be considered constitutionally effective. Woods v. State,
701 N.E.2d 1208, 1221-22 (Ind. 1998). Because an examination of Davidson’s
trial counsel’s strategy would require evidence outside the trial record,
appellate counsel cannot be deemed ineffective for failing to raise the
issue on direct appeal and thereby preserving it for postconviction
proceedings.
Conclusion
Davidson fails to establish ineffective assistance of either his trial
or appellate counsel. Pursuant to Indiana Appellate Rule 58(A)(2), we
summarily affirm the Court of Appeals decision affirming the postconviction
court’s denial of Davidson’s claim of ineffective assistance of counsel for
failure to challenge the aggravating circumstances used by the trial court
to justify the sentence imposed. The judgment of the postconviction court
is affirmed.

DICKSON, and RUCKER, JJ., concur.

SULLIVAN, J., concurs in result with separate opinion in which
SHEPARD, C.J., concurs.

Attorneys for Appellant

Susan K. Carpenter
Public Defender of Indiana

C. Brent Martin
Deputy Public Defender
Indianapolis, IN

Attorneys for Appellee

Karen M. Freeman-Wilson
Attorney General of Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

JOHNIE E. DAVIDSON
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 22S01-0101-PC-42
)
) Court of Appeals No.
) 22A01-0004-PC-116
)
)
)

APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Richard C. Striegel, Judge
Cause No. 22D01-8901-CF-1

ON PETITION TO TRANSFER

SULLIVAN, Justice, concurring in result.

I believe the proper application of Kendrick to the case before us is
demonstrated by our opinion in Buell v. State, 668 N.E.2d 251 (Ind. 1996),
reh’g denied, and Chief Judge Sharpnack's opinion in Elswick v. State, 706
N.E.2d 592 (Ind. Ct. App. 1999), transfer denied.

The Kendrick case was an appeal of a judgment denying permission to
withdraw a guilty plea. The defendant had pled guilty to one of several
counts pending in a single case in Marion Superior Court, Division One. At
the time of the plea, there were other charges pending against the
defendant in another division of the Marion Superior Court, but those
charges were not noted in the plea agreement or the plea proceeding in
Division One. The Division One court accepted the plea but did not advise
the defendant of the possibility that he could receive consecutive
sentences for the charge covered by the plea and the charges pending in the
other division. An advisement as to the possibility of any consecutive
sentences was required by statute. Kendrick, 529 N.E.2d at 1311.

Kendrick later sought to withdraw the guilty plea made in Division
One because of the lack of any advice that as a consequence of the plea, he
would face the possibility that later sentences in the other division could
be imposed consecutive to the one he would then be serving.

At the time Kendrick was decided, the imposition of consecutive
sentences was controlled by a statute that provided, “the court shall
determine whether terms of imprisonment shall be served concurrently or
consecutively.” Ind. Code § 35-50-1-2(a) (1988).[1] We held that the
authority given trial courts by this language to be “restrictive.”
Kendrick, 529 N.E.2d at 1312. A trial court could impose consecutive
sentences only (1) when it had a mandatory duty to do so under Ind. Code §
35-50-1-2(b) or (2) “when a court [was] meting out two or more terms of
imprisonment.” Id. We said, “If a court is contemporaneously imposing two
or more sentences, it is granted the general statutory authority to order
them to be served consecutive to one another.” Id.

We held that because the Division One court was not meting out two or
more terms of imprisonment, it had had no authority to impose consecutive
sentences and therefore no duty to advise the defendant of the possibility
thereof. Id.

While the result in Kendrick was that the defendant was denied his
request to set aside his guilty plea, the implication was that a court,
except where expressly required to do so by statute, could not impose a
sentence consecutive to one imposed by another court at another time. Two
cases decided in 1990 confirmed that. Seay v. State 550 N.E.2d 1284, 1286
(Ind. 1990); Bartruff v. State, 553 N.E.2d 485, 487-88 (Ind. 1990).

To return to Davidson's case, I acknowledge that "contemporaneously
imposing" language of Kendrick, Seay, and Bartruff could lead one to the
conclusion that had Davidson been tried separately, the trial courts in
each of the separate cases would have been unable to impose sentences
consecutive to those imposed in the other cases. But this would give the
contemporaneity requirement too literal an interpretation, as subsequent
cases have made clear.

The first of these cases is Buell v. State, 668 N.E.2d 251 (Ind.
1996), reh’g denied. The defendant had been found guilty of voluntary
manslaughter and confinement but the jury could not reach a verdict on
several additional counts including murder and conspiracy and the court
declared a mistrial on those other counts. The trial court proceeded to
impose consecutive sentences for the voluntary manslaughter and confinement
convictions. Id. at 252.

A second jury subsequently found the defendant guilty of murder and
conspiracy and the trial court imposed sentences on those counts, to run
consecutive to each other and to the sentences earlier imposed. Id.

On appeal, the defendant argued that under Kendrick, the trial court
was not authorized to order that the sentences from the second trial be
served consecutive to those imposed in the first. Id. We found that to be
too near-sighted a reading of Kendrick:

Unlike the situation in Kendrick, the judge in this case imposed
consecutive sentences for closely related offenses that were first
charged in the same information and all tried in the same court. But
for the hung jury and subsequent mistrial, the court would have
sentenced [the defendant] on all counts contemporaneously. We agree
with the State that the rule of Kendrick does not apply. The court
was authorized to impose consecutive sentences.

Id.

The second of these cases is Elswick v. State where the defendant
appealed his sentence for conspiracy to commit murder. 706 N.E.2d 592
(Ind. Ct. App. 1999), transfer denied.

While jailed awaiting trial for the murder of one man and the
attempted murder of another man named Kyle, the defendant attempted to
arrange the murder of witness-victim Kyle. In separate jury trials before
Judge Duffin, the defendant was first convicted on the murder and attempted
murder charges, for which he was sentenced to consecutive terms. He was
then convicted of conspiracy to murder Kyle, for which he was sentenced
consecutive to the sentences for murder and attempted murder. Id. at 593.

The defendant claimed that under Kendrick, Judge Duffin lacked
authority to order his sentence for conspiracy to run consecutively to his
prior convictions. Id.

In an opinion written by Chief Judge Sharpnack, the Court of Appeals
found that Kendrick did not control:

In each of the cases applying Kendrick, the trial court ordered a
sentence to run consecutively to a sentence imposed at a different
time, as in the case before us. However, in those cases the
consecutive sentence was either tacked onto a sentence for an
unrelated crime or was imposed by a different court. Here, the
conspiracy conviction was closely related to [the defendant's]
convictions for murder and attempted murder. Had [the defendant]
succeeded in his conspiracy, he well might have avoided conviction of
murder and attempted murder and would have accomplished the previously
attempted murder of Kyle. In addition, the trial judge imposing the
sentences presided over both trials.

Id. at 594.

The Court of Appeals concluded that the principles enunciated in
Buell applied:

Unlike Kendrick and its progeny, the two causes here were
closely related sharing a strong factual connection. Furthermore,
because he had tried both cases, the facts of each case were before
Judge Duffin when he ordered the consecutive sentence. Therefore, we
hold that, under Buell, the trial court was within its discretion
under Ind. Code § 35-50-1-2(a) to order [the defendant's] sentence for
conspiracy to commit murder to run consecutively to his sentences for
murder and attempted murder.

Id. at 595.

I believe that Buell and Elswick make clear that Davidson is not
entitled to sentencing relief. The charges upon which the sentences at
issue were imposed are of similar character and were charged in the same
information. Even had Davidson been tried separately, there is no reason
to think that he would not have been tried in the same court before the
same judge. These factors indicate that the Kendrick rule is not
applicable here.

SHEPARD, C.J., concurs.

-----------------------
[1] This statute has been substantially amended such the
interpretation given it in Kendrick no longer applies. See Berry v. State,
689 N.E.2d 444, 446 (Ind. 1997); Weaver v. State, 664 N.E.2d 1169, 1170-71
(Ind. 1996).