ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SARAH L. NAGY KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
JANET L. PARSANKO
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
STEVEN L. KILPATRICK, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0003-CR-185
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Diane M. Moore, Judge
Cause No. 49G04-9901-CF-9940
ON DIRECT APPEAL
April 11, 2001
RUCKER, Justice
After a trial by jury Steven L. Kilpatrick was convicted of murder,
attempted robbery as a Class A felony, aggravated battery as a Class B
felony, and criminal gang activity as a Class D felony for his role in the
stabbing death of Edward Crafter. In this direct appeal Kilpatrick raises
twelve issues for our review which we consolidate, reorder, and rephrase as
follows: (1) did the trial court err by admitting certain exhibits into
evidence, (2) did the trial court err in giving certain jury instructions,
(3) was Kilpatrick denied his right to confront witnesses when his co-
defendant moved for a directed verdict arguing that Kilpatrick inflicted
the fatal injury, (4) do Kilpatrick’s convictions violate the Double
Jeopardy Clause of the Indiana Constitution, (5) is the evidence sufficient
to sustain his convictions, and (6) was Kilpatrick properly sentenced. We
reverse Kilpatrick’s conviction for criminal gang activity on sufficiency
of the evidence grounds. In all other respects, we affirm.
Facts
The facts most favorable to the verdict show that in the evening hours
of January 14, 1999, a group of men attacked and beat Edward Crafter. His
body was found in a field the following morning. At least four of the men
were charged in connection with Crafter’s death, one of whom was Tommy
Thompson. In exchange for his testimony, the State dismissed charges
against Thompson for murder, robbery, and criminal gang activity and
allowed him to plead guilty to aggravated battery. At trial, Thompson
downplayed his own involvement in Crafter’s death and instead blamed
Kilpatrick and another accomplice, Craig Ferrell, who was tried along with
Kilpatrick as a co-defendant.[1] Thompson testified, for example, that he
observed Kilpatrick strike Crafter in the head with a chunk of ice and that
as Crafter lay on the ground Ferrell and Kilpatrick searched Crafter’s
pockets. He also testified that sometime thereafter he observed Ferrell
and Kilpatrick dragging Crafter through the street; that Kilpatrick stabbed
Crafter multiple times in the neck and that Ferrell stabbed him in the
chest; and that both Ferrell and Kilpatrick dragged Crafter’s body into
some bushes. Another witness also testified that she observed Kilpatrick
strike Crafter in the head with a large chunk of ice and that Kilpatrick
searched Crafter’s pockets as he lay on the ground. An autopsy revealed
that in addition to abrasions and contusions to his face, Crafter suffered
an injury to the back of his head consistent with being struck with a large
block of ice. The autopsy also revealed that Crafter died as a result of
multiple stab wounds. A jury convicted Kilpatrick of murder, attempted
robbery, aggravated battery, and criminal gang activity. The trial court
sentenced him to an aggregate term of 110 years imprisonment.[2] This
appeal followed. Additional facts are set forth below where relevant.
Discussion
I. Admission of Exhibits
Kilpatrick contends the trial court erred by admitting certain
exhibits into evidence. He first complains about State’s Exhibit 39, a
photograph of the victim taken prior to the autopsy showing multiple stab
wounds and a great amount of blood. According to Kilpatrick, the
photograph is gruesome, cumulative of other photographs introduced into
evidence, and served no purpose other than to inflame the passions of the
jury. We review the trial court’s admission of photographic evidence for
an abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1028 (Ind. 1999).
Photographs that depict a victim’s injuries are generally relevant and
thus admissible. Harrison v. State, 699 N.E.2d 645, 647 (Ind. 1998). The
relevancy requirement also can be met if the photographs demonstrate or
illustrate a witness’s testimony. Id. However, relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice. . . .” Ind.Evidence Rule 403; Wallace v. State, 725
N.E.2d 837, 839 (Ind. 2000).
The photograph here was admitted into evidence after the pathologist
had explained the nature of Crafter’s injury, namely multiple stab wounds,
which was accompanied by significant bleeding, resulting in death. Because
the photograph illustrated the witness’s testimony, the relevancy
requirement for its admission was properly met. As for alleged prejudicial
impact, we do not agree the photograph is particularly gruesome. Indeed,
because the photograph was taken before the pathologist actually began his
internal examination, it shows no incisions and does not portray the
gruesome spectacle this Court has previously condemned. See, e.g., Turben
v. State, 726 N.E.2d 1245, 1247 (Ind. 2000) (deeming an autopsy photograph
of gloved hands manipulating a bloody mass with a probe so gruesome as to
be inadmissible); Kiefer v. State, 239 Ind. 103, 112, 153 N.E.2d 899, 902
(1958), (deeming photographs so “gruesome and shocking” as to be
inadmissible), reh’g denied. It is true that photographs of a deceased
victim during and after an autopsy is performed may be held inadmissible on
the ground that they serve no purpose other than to arouse the emotions of
the jury. Loy v. State, 436 N.E.2d 1125, 1128 (Ind. 1982). However, this
Court has found photographs showing the deceased victim before the
pathologist has made incisions to be admissible even when they are gruesome
or gory. Id. That is so because such photographs allow the jury to see
the wounds or trauma inflicted upon the victim, and they are often
accompanied by the testimony of the pathologist about the cause of death.
Id. Here, the pathologist testified about the cause of death and the
photograph allowed the jury to see the wounds and to place the
pathologist’s testimony in context. The probative value of the photograph
outweighs any prejudicial impact. Concerning Kilpatrick’s argument that
the photograph was cumulative, we observe that relevant evidence need not
be excluded simply because it is cumulative. Wagner v. State, 474 N.E.2d
476, 490 (Ind. 1985). The trial court did not err by allowing the
photograph into evidence.
Kilpatrick also complains about the introduction of photographs taken
of him at the time of arrest showing several tattoos on his arms and chest.
A detective assigned to the Metro Gang Task Force testified that the
tattoos were the symbols of a street gang known as the Vice Lords.
Kilpatrick argues that even if relevant to the charge of criminal gang
activity, the photographs’ prejudicial impact outweighed their probative
value. Kilpatrick is mistaken. However, as explained in greater detail
elsewhere in this opinion, we reverse his conviction for criminal gang
activity. Therefore, we decline to address further the propriety of the
trial court admitting the photographs into evidence.
Finally, Kilpatrick complains the trial court erred by admitting into
evidence his check-cashing card and photo ID. Both items were recovered
from the home of Yolanda Coffee; the location where the fight first erupted
between Crafter and Kilpatrick. He claims the exhibits were not relevant
and that the State failed to lay a proper foundation for their introduction
into evidence. A proper foundation for the introduction of physical
evidence is laid if a witness is able to identify the item and the item is
relevant to the disposition of the case. Bell v. State, 610 N.E.2d 229,
233 (Ind. 1993). Here, although Coffee did not discover the items herself,
a relative discovered them between the pillows of a couch in Coffee’s home,
Coffee was present when the items were found, she is acquainted with
Kilpatrick, and she was able to identify the items. R. at 294-96.
As for relevancy, relevant evidence is “evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Evid.R. 401. The record shows that prior to trial,
Kilpatrick filed a notice of alibi contending that he was home on the night
of the stabbing. R. at 92. The State contends the items were thus
relevant to show Kilpatrick’s presence at the home of the witness on the
night of the crime. The problem however is that the witness discovered the
disputed items some five months after the fatal stabbing and testified that
Kilpatrick had visited her home “quite a few” times. R. at 287, 295. And
there was no evidence presented that the last time he was present at her
home was on the night in question. At best, Kilpatrick’s photo ID and
check-cashing card are only marginally relevant to the question of whether
Kilpatrick was present at or near the crime scene when Crafter was killed.
Even so, Kilpatrick was not harmed by the admission of the exhibits because
a number of witnesses placed Kilpatrick at the scene on the night of the
murder. Any error in admitting evidence will be found harmless where
evidence is merely cumulative. Borders v. State, 688 N.E.2d 874, 878 (Ind.
1997).
II. Jury Instructions
Kilpatrick’s complaint about jury instructions is somewhat attenuated.
On the one hand, he complains that the trial court’s reasonable doubt
instruction, sanctioned by this Court in Winegart, is erroneous. See
Winegart v. State, 665 N.E.2d 893 (Ind. 1996). He acknowledges that he did
not object to the instruction but attempts to avoid waiver by arguing
fundamental error. He also invites this Court to revisit Winegart. On the
other hand, he argues he is not seeking reversal based on the trial court
giving the Winegart reasonable doubt instruction but “seeks [] reversal
based upon the six defective instructions to which were objected by trial
counsel and which incorporated the ‘reasonable doubt’ concept in each.”
Br. of Appellant at 19-20.
Kilpatrick’s attempted end-run at arguing error in the reasonable
doubt instruction is unavailing. The record shows that his objection at
trial to the six instructions he now mentions on appeal was not based on
the fact they included the term “reasonable doubt.” Rather, Kilpatrick
objected to five of the instructions on the ground that they contained
permissive language.[3] R. at 775-81. He objected to a sixth instruction
on a similar ground.[4] R. at 783. A defendant may not raise one ground
for an objection at trial and then argue a different ground on appeal.
Simmons v. State, 714 N.E.2d 153, 155 (Ind. 1999). This issue is waived
for review unless fundamental error occurred. It did not.[5]
III. Right of Confrontation
Kilpatrick next complains that he was denied his Sixth Amendment right
of confrontation. The facts are these. After the State rested, the jury
was excused and each of the co-defendants moved for directed verdict.
Concerning the charge of aggravated battery, counsel for Craig Ferrell
argued, among other things, that Kilpatrick, and not his client, caused the
victim’s injuries. In this appeal, Kilpatrick claims he was denied the
right to confront a witness against him because “[t]his tactic taken by
Ferrell’s counsel in the middle of the trial had the same impact as the
admission of an extrajudicial statement of a non-testifying co-defendant at
a joint trial.” Br. of Appellant at 36.
We first observe that Kilpatrick’s assertion that counsel’s comments
occurred in “the middle of the trial” is obviously misleading. The
assertion was made at the close of the State’s case and outside the
presence of the jury. In any event, a defendant’s Sixth Amendment right of
confrontation requires that a defendant be afforded the opportunity to
conduct effective cross-examination of the State’s witnesses in order to
test their believability. Meagher v. State, 726 N.E.2d 260, 264 (Ind.
2000). This right of confrontation “extends to situations related to the
presentation of witnesses or evidence, during which the right of cross-
examination is implicated.” Robinson v. State, 699 N.E.2d 1146, 1150 (Ind.
1998). In this case, counsel for Ferrell was not a witness and his
argument for directed verdict was not evidence. There is no Sixth
Amendment violation here.
IV. Violations of Double Jeopardy
Kilpatrick next argues that his conviction and sentencing for murder
and attempted robbery as a Class A felony violates Indiana’s double
jeopardy clause. Specifically, he contends that the evidentiary facts used
by the jury to elevate the charge of attempted robbery to a Class A felony
are the same as the evidentiary facts used to establish the elements of
murder. We disagree.
The double jeopardy rule prohibits multiple punishments for the same
offense. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), this Court
developed a two-part test for determining whether two convictions are
permissible under Indiana’s double jeopardy clause. Id. at 49. A double
jeopardy violation occurs when “‘the State . . . proceed[s] against a
person twice for the same criminal transgression.’” Hampton v. State, 719
N.E.2d 803, 809 (Ind. 1999) (quoting Richardson, 717 N.E.2d at 49). “[T]wo
or more offenses are the ‘same offense’ . . . 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, 717
N.E.2d at 49 (emphasis in original). When we look to the actual evidence
presented at trial, we will reverse one of the convictions if 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.
at 53.
Kilpatrick asserts the same evidence - stabbing of Crafter - was used
to support Kilpatrick’s murder conviction and the serious bodily injury
element in the attempted robbery conviction. However, both the evidence
and the jury instructions, which included the charging information, clearly
show that different evidence - blunt force trauma to Crafter’s head with a
block of ice causing severe brain damage - was used to support the serious
bodily injury element for the attempted robbery charge. Thus, application
of the actual evidence test discloses that convicting and sentencing
Kilpatrick on both offenses does not violate the Indiana Double Jeopardy
Clause.
Kilpatrick further contends that his convictions for attempted
robbery, aggravated battery, and criminal gang activity also violate
Indiana’s double jeopardy clause. As indicated earlier, and as discussed
in greater detail below, we reverse Kilpatrick’s conviction for criminal
gang activity. Therefore for purposes of this analysis, the conviction for
criminal gang activity is not a part of the equation. As for the remaining
offenses, it is true that the same evidence – hitting Crafter with a block
of ice – was used to prove both attempted robbery and aggravated battery.
However, the trial court merged the aggravated battery conviction into the
conviction for attempted robbery.[6] We have held that where a trial court
merges some offenses into others for purposes of sentencing, there is no
double jeopardy violation. This is so because under those circumstances
the defendant is not being punished for the merged offenses. Buchanan v.
State, 699 N.E.2d 655, 656 (Ind. 1998) (declaring that “[n]o double
jeopardy issue exists” where the trial court merged convictions for
criminal confinement and carjacking into a conviction for kidnapping,
leaving the defendant subject to punishment for the remaining kidnapping
and robbery convictions). Because Kilpatrick is not being subjected to
punishment for his conviction of aggravated battery, his double jeopardy
claim fails.
V. Sufficiency of the Evidence
Kilpatrick does not contest his conviction for aggravated battery. He
contends, however, that his convictions for murder, attempted robbery, and
criminal gang activity are not supported by sufficient evidence. In
reviewing a sufficiency of the evidence claim, we do not reweigh the
evidence or assess the credibility of witnesses. Brown v. State, 720
N.E.2d 1157, 1158 (Ind. 1999). Rather, we look to the evidence and
reasonable inferences drawn therefrom that support the verdict and will
affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id.
Kilpatrick’s chief complaint concerns the testimony of Tommy Thompson.
Contending that Thompson was the only witness to testify concerning the
murder and attempted robbery, Kilpatrick argues that Thompson’s testimony
“is impossible to believe, and is insufficient to support a conviction.”
Br. of Appellant at 28. Kilpatrick’s claim amounts to an invocation of the
“incredible dubiosity rule.” Under this rule, a court will impinge upon
the jury’s responsibility to judge witness credibility only when confronted
with inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity. Tillman v. State, 642
N.E.2d 221, 223 (Ind. 1994); Gaddis v. State, 253 Ind. 73, 80-81, 251
N.E.2d 658, 661-62 (1969). “Application of this rule is limited to cases,
such as Gaddis, where a sole witness presents inherently contradictory
testimony which is equivocal or the result of coercion and there is a
complete lack of circumstantial evidence of the appellant’s guilt.”
Tillman, 642 N.E.2d at 223.
In this case, Thompson testified that he arrived on the scene after a
fight between Crafter and several other men had begun and that he hit
Crafter only once. R. at 342, 346. By contrast, two other witnesses
testified that Thompson participated more actively in the beatings. R. at
274, 457. Thompson testified that Ferrell and Kilpatrick beat Crafter but
did not mention anyone else. R. at 344. On the other hand, other
witnesses testified that four or five persons participated in the beating.
R. at 272-73, 425. No witness other than Thompson testified that
Kilpatrick stabbed Crafter; however, no blood was found on Kilpatrick’s
clothing, which according to Kilpatrick, one might expect given the
tremendous amount of blood that Crafter lost. On this latter point, the
record shows the clothing that was tested for bloodstains was clothing
Kilpatrick wore at the time of his arrest three weeks after the stabbing.
R. at 541, 562, 649. Further, Thompson as well as another State’s witness
testified that on the night of the stabbing Kilpatrick removed the clothes
he was wearing and placed them in a trash bag. R. at 376, 449-50.
In any event, although Thompson’s testimony was inconsistent in
several respects with the testimony of other witnesses, it was not
equivocal and Thompson did not contradict himself on the stand. Rather,
the record shows that even though Kilpatrick thoroughly cross-examined
Thompson, he nonetheless stuck by his account of the events occurring on
the night of the fatal stabbing. R. at 380-86. See Berry v. State, 703
N.E.2d 154, 160 (Ind. 1998) (declining to apply the “incredible dubiosity
rule” where there were inconsistencies in the testimony among witnesses but
no one witness contradicted himself). Further, in addition to Thompson’s
testimony, one other witness testified that Kilpatrick went through
Crafter’s pockets after knocking him to the ground with a block of ice. R.
at 275-76. It is for the trier of fact to resolve conflicts in the
evidence and to decide which witnesses to believe or disbelieve. Marshall
v. State, 621 N.E.2d 308, 320 (Ind. 1993). If the testimony believed by
the trier of fact is enough to support the verdict, then the reviewing
court will not disturb it. Id. In this case the jury apparently believed
Thompson’s testimony. His testimony coupled with the testimony of other
witnesses was sufficient to support a guilty verdict for murder and
attempted robbery. We therefore affirm Kilpatrick’s convictions for these
offenses.
We have a different view, however, concerning Kilpatrick’s conviction for
criminal gang activity. In order to convict a defendant of criminal gang
activity, the State must prove beyond a reasonable doubt that the
individual: (1) is an active member of a group with five or more members
which promotes, sponsors, assists in, participates in, or requires as a
condition of membership or continued membership the commission of a felony
or an act that would be a felony if committed by an adult, (2) has
knowledge of the group’s criminal advocacy, and (3) has a specific intent
to further the group’s goals. See Ind.Code §§ 35-45-9-1, -3.
The State presented substantial evidence that Kilpatrick was a member
of a gang: an acquaintance testified Kilpatrick was a member of the Vice
Lords gang, R. at 333-35; a patrolman with the Indianapolis Police
Department testified he had previously completed a gang contact sheet on
Kilpatrick based on known associates, colors, and tattoo identifiers
indicating gang affiliation, R. at 670; and a detective assigned to the
Metro Gang Task Force testified concerning Kilpatrick’s affiliation with
the Vice Lords, basing his opinion on the number, type, and location of
tattoos on Kilpatrick’s body. R. at 713. The State also linked the Vice
Lords gang to criminal activity. R. at 703.
To sustain a conviction under a sufficiency of the evidence challenge,
there must be sufficient evidence on each material element. Grace v.
State, 731 N.E.2d 442, 445 (Ind. 2000), reh’g denied. Here, the State
presented no evidence that Kilpatrick had the specific intent to further
the gang’s criminal goals when he stabbed and attempted to rob Crafter.
The State’s case consisted only of evidence that Kilpatrick was a member of
a gang that commits criminal offenses. That is not enough. See Robinson
v. State, 730 N.E.2d 185, 195 (Ind. Ct. App. 2000), trans. denied; Trice v.
State, 693 N.E.2d 649, 651 (Ind. Ct. App. 1998) (both reversing convictions
for criminal gang activity where the State failed to show a nexus between
the defendants’ gang membership and the crimes for which they were
charged.). We thus conclude the evidence was not sufficient to support
Kilpatrick’s conviction for criminal gang activity. Therefore, we are
compelled to reverse this conviction.
VI. Sentencing
Finding three aggravating factors and no mitigating factors, the trial
court sentenced Kilpatrick to enhanced and consecutive terms of
imprisonment. Specifically the trial court found as aggravating factors:
(1) the nature and circumstances of the crimes, (2) Kilpatrick’s prior
criminal history, and (3) the “victim’s family has requested that the
maximum sentence be imposed.” R. at 871. Kilpatrick does not contest the
trial court’s findings. Rather, he complains the trial court failed to
provide separate reasons for enhancing his sentences and failed to
articulate reasons for running the sentences consecutively.
We observe sua sponte that although recommendations by a victim’s
family “may properly assist a court in ‘determining what sentence to impose
for a crime,’” they “‘are not mitigating or aggravating factors as those
terms are used in the sentencing statute.’” Brown v. State, 698 N.E.2d
779, 782 (Ind. 1998) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1199
(Ind.1996)). In any event, when a trial court improperly applies an
aggravator, a sentence enhancement may be upheld if other valid aggravators
exist. Walter v. State, 727 N.E.2d 443, 448 (Ind. 2000). The manner in
which a crime is committed may serve as an aggravating circumstance.
Taylor v. State, 695 N.E.2d 117, 120 (Ind. 1998). The same is true for a
defendant’s criminal history. Culver v. State, 727 N.E.2d 1062, 1072 (Ind.
2000), reh’g denied.
The decision to enhance a presumptive sentence or to impose
consecutive sentences for multiple offenses is generally within the trial
court’s discretion. Brown, 698 N.E.2d at 781. A single aggravating factor
may be sufficient to support an enhanced sentence. Garrett v. State, 714
N.E.2d 618, 623 (Ind. 1999). And the same factors may be used to enhance a
presumptive sentence and to justify consecutive sentences. Miller v.
State, 716 N.E.2d 367, 371 (Ind. 1999). We reject Kilpatrick’s claim that
the trial court is required to identify the factors that support the
sentence enhancement separately from the factors that support consecutive
sentences. Blanche v. State, 690 N.E.2d 709, 716 (Ind. 1998). We also
reject his claim that the trial court is required to identify separate
factors to support each sentence enhancement. Id. at 715 (finding a single
aggravator suffices to support enhanced sentences for attempted murder,
carrying a handgun without a license, and resisting law enforcement
convictions); Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997) (finding
same three aggravators justified enhanced sentences for murder and
conspiracy to commit murder). In sum, Kilpatrick’s challenge to his
sentence fails.
Conclusion
We reverse Kilpatrick’s conviction for criminal gang activity. In all
other respects, the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] Today, we also decide the case of co-defendant Craig Ferrell.
Ferrell v. State, Cause No. 49S00-0003-CR-142, ___N.E.2d___ (Ind. 2001).
[2] Specifically, the trial court sentenced Kilpatrick to consecutive
terms of sixty-five (65) years for murder and forty-five (45) years for
attempted robbery. The court also sentenced Kilpatrick to twenty (20)
years for aggravated battery and three (3) years for criminal gang activity
but merged these sentences into the sentence for attempted robbery.
[3] The instructions involved the elements of murder, robbery,
attempted robbery, criminal gang activity, and evidence of other crimes,
respectively. R. at 131-38, 142. Kilpatrick objected to that portion of
the instructions that provided “if the State failed to prove each of these
elements beyond a reasonable doubt, you should find the defendant not
guilty.” Id. (emphasis added). Kilpatrick argued the word “should” in
each of the instructions ought to be replaced with the word “may.” The
trial court overruled the objection.
[4] Kilpatrick objected to the instruction that provided, “If after
considering all of the evidence . . . , you should acquit even if you find
the accused was guilty of misbehavior . . . .” R. at 150. Kilpatrick
argued the word “should” ought to be replaced with the word “must.” The
trial court overruled the objection.
5 Also, we have approved of the Winegart instruction on numerous
occasions and decline Kilpatrick’s invitation to revisit it here. See
Albrecht v. State, 737 N.E.2d 719, 731 (Ind. 2000); McGregor v. State, 725
N.E.2d 840, 842 (Ind. 2000); Warren v. State, 725 N.E.2d 828,834 (Ind.
2000); Turnley v. State, 725 N.E.2d 87, 89 (Ind. 2000); Dobbins v. State,
721 N.E.2d 867, 874-75 (Ind. 1999); Ford v. State, 718 N.E.2d 1104, 1105
(Ind. 1999); Barber v. State, 715 N.E.2d 848, 851-52 (Ind. 1999); Young v.
State, 696 N.E.2d 386, 390 (Ind. 1998).
[5] We acknowledge the considerable case authority declaring that
vacating an offense as opposed to merging it is appropriate at least in
those instances involving lesser-included offenses. See, e.g., Mason v.
State, 532 N.E.2d 1169, 1172 (Ind. 1989) (remanding to the trial court with
instructions to vacate the defendant’s conviction for possession of a
narcotic drug as a lesser-included offense of dealing); Cohen v. State, 714
N.E.2d 1168, 1180 (Ind. Ct. App. 1999) (acknowledging the trial court’s
uses of “merger” but holding “where a defendant is found guilty of both the
greater offense and the lesser-included offense, the trial court’s proper
procedure is to vacate the conviction for the lesser-included offense and
enter a judgment of conviction and sentence only upon the greater
offense.”), trans. denied. See also Webster v. State, 708 N.E.2d 610, 616
(Ind. Ct. App. 1999), trans. denied; Taflinger v. State, 698 N.E.2d 325,
327 (Ind. Ct. App. 1998); Redman v. State, 679 N.E.2d 927, 932 (Ind. Ct.
App. 1997), trans. denied; Johnson v. State, 659 N.E.2d 242, 246 (Ind. Ct.
App. 1995); Abron v. State, 591 N.E.2d 634, 637 (Ind. Ct. App. 1992),
trans. denied. We leave for another day a discussion concerning the
continued viability of the foregoing rule. We note however that this case
does not involve merger of a lesser-included offense.