ATTORNEY FOR APPELLANT
Teresa D. Harper
Bloomington, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
BRYSON BURNETT, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9905-CR-287
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9808-CF-136936
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
October 5, 2000
BOEHM, Justice.
Bryson A. Burnett was convicted of robbery, two counts of criminal
confinement, aggravated battery, carrying a handgun without a license,
pointing a firearm, auto theft, theft, and being a habitual offender. He
was sentenced to 100 years imprisonment. In this direct appeal, Burnett
contends that (1) the trial court abused its discretion in giving the
State’s instruction on eyewitness testimony; (2) there is insufficient
evidence to sustain the habitual offender enhancement; and (3) his
convictions for both robbery and aggravated battery and for pointing a
firearm and criminal confinement violate the Indiana Double Jeopardy
Clause. We affirm the judgment of the trial court in part and remand with
instructions to vacate the convictions for aggravated battery and pointing
a firearm.
Factual and Procedural Background
On August 17, 1998, Angila Plummer was talking with a neighbor
outside her home when Burnett approached her and asked if she remembered
him. When Angila said that she did not, Burnett told her that his name was
“Andre” and he had lived across the street the preceding summer.
Approximately fifteen minutes later, Burnett knocked on Angila’s door and
asked to use the phone. Angila agreed and, after making a call, Burnett
thanked her and left the house.
Burnett returned later that afternoon and again asked to use the
phone. After finishing his call, Burnett turned on Angila with a knife,
stabbed her in the neck and eyebrow, and then repeatedly struck her in the
eye. Burnett took a cellular phone, a beeper, and money from Angila’s
purse. Burnett next drew a handgun from his pocket, pointed it at Angila’s
four-year-old daughter, Heather, and told Heather to go upstairs, which she
did. Heather came back downstairs and Burnett ordered Angila to take her
upstairs. Burnett then left the house with the keys to Angila’s car and
Angila called the police.
Early the next morning, Burnett walked into a convenience store,
yelled, “Hello, beautiful people,” removed almost two hundred dollars from
the cash register, and drove away. A clerk wrote down the license plate
number and reported the incident to police, who identified the car used in
the robbery as Angila’s. Later that afternoon, the clerk saw Burnett near
her home, recognized his voice when he yelled at her son, and called the
police.
Officers arresting Burnett found him with two knives and a check
written on Angila’s account. The clerk subsequently identified Burnett
from a photo array as the store robber. Burnett then admitted to taking
money from the convenience store and money and car keys from Angila’s
house, but claimed that Angila had been injured by a letter opener that
“ended up in her neck.” Burnett was charged with robbery, two counts of
criminal confinement, attempted murder, carrying a handgun without a
license, pointing a firearm, auto theft, theft and being a habitual
offender. He was convicted of aggravated battery as a lesser included
offense of attempted murder and on all other counts. An aggregate sentence
of 100 years was imposed.
I. Jury Instruction
Burnett first claims that the trial court abused its discretion by
giving the State’s Tendered Proposed Instruction No. 5, which read: “A
conviction may be sustained by the uncorroborated testimony of a single
eyewitness.” Burnett acknowledges that this instruction has been upheld in
the past by this Court, but contends that it is time to revisit the issue
because the instruction unfairly focused attention on the testimony of one
witness, Angila.[1] Burnett argues that giving this instruction was
especially influential here, where Burnett’s version of the crime was
relayed to the jury through the testimony of a police officer.
In Madden v. State, this Court upheld a similar instruction where the
defendant challenged that the instruction “overemphasize[d] the testimony
of the victim.” 549 N.E.2d 1030, 1033 (Ind. 1990). This Court approved of
the instruction in cases where the victim was the only testifying witness
to the crime because it was “unrealistic to take the position that it was
necessary for the prosecuting witness’s testimony to be corroborated by
other evidence.” Id. In this case, as in Madden, the victim was the only
testifying eyewitness to each crime. There were no other instructions on
point and this instruction did not unfairly focus attention on Angila’s
testimony. The trial court did not abuse its discretion in giving it. See
id. (“Inasmuch as the instruction was not repeated in other instructions,
we cannot say that it was repetitious or unduly emphasized a particular
aspect of the case.”).
II. Sufficiency of the Evidence
Burnett also challenges the sufficiency of the evidence to support
the habitual offender enhancement. Specifically, he contends that the
habitual offender finding must be set aside because the State did not prove
that the prior convictions were “unrelated,” although his argument boils
down to a claim of lack of proof that the supporting convictions were
“prior” to the current one.
Our standard of review for sufficiency claims is well settled. We do
not reweigh evidence or assess the credibility of witnesses. 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. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
To prove that a defendant is a habitual offender, the State must prove
that “the person had accumulated two (2) prior unrelated felony
convictions.” Ind. Code § 35-50-2-8(d) (1998).
[T]o sustain a sentence under [the statute], the State must show that
the defendant had been twice convicted and twice sentenced for
felonies, that the commission of the second offense was subsequent to
his having been sentenced upon the first and that the commission of
the principal offense upon which the enhanced punishment is being
sought was subsequent to his having been sentenced upon the second
conviction.
Steelman v. State, 486 N.E.2d 523, 526 (Ind. 1985) (quoting Miller v.
State, 275 Ind. 454, 459, 417 N.E.2d 339, 342 (1981)). Burnett argues that
because there is no commission date for the second offense in the record,
the State has not proven that the second offense occurred after the
sentencing for the first.
To prove the habitual offender enhancement, the State first introduced
an arrest report dated June 27, 1985, which showed that Burnett had been
arrested for burglary, robbery, confinement, and theft. The State then
introduced an abstract of judgment and minute entry, which showed that
Burnett pleaded guilty to two of those crimes and was sentenced on October
17, 1985. The State attempted to prove the second felony conviction with
an arrest report from August 9, 1993, for criminal confinement and
burglary. Finally, the State introduced an abstract of judgment and order
of probation, which showed Burnett was convicted and sentenced for criminal
recklessness under the same cause number on December 8, 1993.
Although the better practice is to offer direct evidence of the
commission date of the second offense, a reasonable jury could have
concluded that Burnett committed his second felony after receiving his
sentence for the first. The evidence presented included that the arrest
date of the second offense was almost eight years after the sentencing for
the first offense. See Clark v. State, 597 N.E.2d 4, 12 (Ind. Ct. App.
1992) (inclusion of arrest dates and sentencing dates was sufficient to
prove the habitual offender enhancement). From this it can be inferred
that the criminal recklessness must have been committed after August 1988
because the statute of limitations for a Class D felony is five years.
Ind. Code § 35-41-4-2 (1998). These are, of course, matters within the
knowledge of the defendant, and there was no evidence suggesting the
commission date was earlier than 1988. This record contains sufficient
evidence to support the habitual offender finding.[2]
III. Double Jeopardy
Burnett finally contends that his multiple convictions violate the
Indiana Double Jeopardy Clause. Ind. Const. art. I, § 14. Specifically,
Burnett argues that he cannot be convicted of both (1) robbery as a Class A
felony and aggravated battery and (2) pointing a firearm and criminal
confinement. The Indiana Double Jeopardy Clause prohibits multiple
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.” Richardson v. State, 717 N.E.2d 32, 53 (Ind.
1999); accord Wise v. State, 719 N.E.2d 1192, 1201 (Ind. 1999).
The Class A felony robbery charge, which was read to the jury as part
of the preliminary instructions, alleged that Burnett took items from the
person of Angila by force and threats of force which resulted in serious
bodily injury, i.e., “a laceration to the head and a stab wound to the neck
of Angila Plummer.” The lesser included aggravated battery, a Class B
felony, was based on the attempted murder charge which alleged that Burnett
attempted to kill Angila “by stabbing [her] in the neck.” In its closing
argument, the State told the jury that “stabbing someone in the neck
creates a substantial risk of death” for the Class A robbery and that the
substantial step in the attempted murder of Angila was “when [Burnett] put
the knife or letter opener into Angila Plummer’s neck.” Based on these
instructions and argument, there is a reasonable possibility that the same
evidence used by the jury to establish the essential elements of aggravated
battery was also included among the evidence establishing the essential
elements of robbery as a Class A felony. Thus, Burnett’s dual convictions
for robbery as a Class A felony and aggravated battery violate the Indiana
Double Jeopardy Clause. Accordingly, we remand to the trial court with
instructions to vacate the aggravated battery conviction.
Burnett also contends that his convictions for pointing a firearm and
criminal confinement violate the Indiana Double Jeopardy Clause. The
preliminary instructions for pointing a firearm stated that Burnett “did
knowingly point a firearm, that is: a handgun at another person, namely:
Heather Plummer.” The criminal confinement charge stated that Burnett
“point[ed] said handgun at Heather Plummer.” The evidence at trial showed
that Burnett pointed the handgun at Heather once and told her to go
upstairs. Later, when he ordered both Angila and Heather upstairs, the
undisputed evidence was that Burnett’s gun was in his pocket, and was not
pointed at either Angila or Heather. During closing argument, the State
contended that Burnett confined Angila and Heather when he “held a gun on
[Heather].” Although there was evidence presented at trial that could have
supported both the pointing a firearm charge and the criminal confinement
charge, the inquiry does not end there. The preliminary instructions
relied on the same act, pointing the gun at Heather, as the basis for the
pointing a firearm and confinement charge, and the State pointed to this
same evidence in its closing argument. Once again there is a reasonable
possibility that the same evidence used by the jury to establish pointing a
firearm was also included among the evidence establishing the essential
elements of the criminal confinement of Heather. Accordingly, the pointing
a firearm charge must be vacated.[3]
Conclusion
The judgment of the trial court is affirmed in part. This case is
remanded to the trial court with instructions to vacate the convictions for
aggravated battery and pointing a firearm.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Although Burnett was also convicted of theft in connection with the
convenience store incident, he does not contend that the instruction
overemphasized the testimony of the clerk of the store, who was also a
single testifying eyewitness to one of Burnett’s crimes.
[2] In this respect, this case differs from Steelman, where this Court
raised the issue of the defendant’s habitual offender enhancement sua
sponte. In Steelman, the only information regarding the second offense was
the conviction and sentencing dates, and there was no proof of commission
of the crime or the time of arrest. 486 N.E.2d at 525-526.
[3] Burnett also argues that one of his criminal confinement convictions
should be vacated because pointing the gun at Heather was an element of
each. However, this Court has previously held that multiple confinement
convictions do not violate double jeopardy where there are multiple
victims. Cf. Parks v. State, 489 N.E.2d 515, 516 (Ind. 1986) (pre-
Richardson case). Here, Burnett confined both Angila and Heather.
Therefore, there is no double jeopardy violation.