concurring in result.
I respectfully concur in result.
I do not believe that there is a reasonable possibility that the jury used the same evidentiary facts that establish the essential elements of Lee’s burglary conviction to establish the essential elements of his attempted robbery conviction. As a result, I do not think that Lee’s convictions for both crimes constituted a violation of double jeopardy protections under the actual evidence test set forth by our Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999). As a result, I do not reach the issues of effectiveness of trial and appellate counsel.
Applying the Richardson actual evidence test to this case, we must determine whether there is a reasonable possibility that the jury used the same evidentiary facts that establish the essential elements of Lee’s burglary conviction to establish the substantial step element of his attempted robbery conviction. Had Lee been successful in committing the robbery — had Ms. Riley had a few dollars in her purse — -there would be no double jeopardy issue. The burglary was complete when Lee, armed with a gun and harboring the requisite intent, broke and entered the Riley residence. When he did so, the burglary was complete. See Williams v. State, 771 N.E.2d 70, 75 (Ind.2002) (“When Williams broke into the apartment, the burglary was complete.”). Had nothing else occurred, the evidence would have been sufficient to support Lee’s conviction for burglary. See Howard v. State, 873 N.E.2d 685, 689 (Ind.Ct.App.2007) (“A defendant’s intent may be inferred from the time, force, and manner of entry where there is no evidence that the entry was made with some lawful intent.”). See also Gray v. State, 797 N.E.2d 333, 336 (Ind.Ct.App.2003).
Although Lee’s burglary was complete upon his entry into the Riley residence, the attempted robbery was just beginning. After entry into the residence, Lee and his companions threatened Ms. Riley and her daughter with guns, ordered Ms. Riley to her bedroom, demanded money, emptied drawers, turned over a mattress and rifled through her purse looking for money. While Lee was rifling her purse, Ms. Riley *1287and her daughter escaped, ran to a neighbor’s house, and called police.
Double jeopardy is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002). Although Lee’s entry into the Riley residence was a substantial step toward commission of the attempted robbery, it was only one of a number of such steps. To constitute a double jeopardy violation, there must be a reasonable possibility that the jury found that Lee broke and entered the Riley residence with the intent to commit robbery and that he abandoned any plan to rob Riley immediately upon his entry into her residence. To do so, the jury would have had to believe all of Ms. Riley’s testimony and that of her daughter up to the point of Lee’s entry into their residence and then have disbelieved all of their testimony after that point. I do not think that it is reasonable4 for us to so conclude, and I would affirm the trial court in all respects.
. As my colleagues have noted, since its adoption by a split court in Richardson v. State, 717 N.E.2d 32 (Ind.1999), our courts have struggled to apply the actual evidence test to resolve double jeopardy challenges. See Vestal v. State, 745 N.E.2d 249, 251-2 (Ind.Ct.App.2001) trans. granted, 773 N.E.2d 805 (Ind.2002)(strict application of Richardson actual evidence “would lead to absurd results” that our Supreme Court “could not have intended.”). Justice Boehm has suggested that the Court has tacitly abandoned the actual evidence test. Guyton v. State, 771 N.E.2d 1141, 1149 (Ind.2002) (Boehm, J., concurring). He has also noted what he believes is "widespread confusion in the Court of Appeals cases attempting to apply Richardson.” Id.
This case provides an example of such confusion. Here, the four judges that have looked at the evidence, applied the test and reached two opposite conclusions. Although I believe that all four accurately state the test set forth in Richardson, they then apply the test to reach different conclusions. My two colleagues in the majority conclude that Richardson actual evidence test was violated; the learned trial judge in a thoughtful and well-written order and this writer conclude that it was not.
Guyton suggests that such confusion may not be limited to this court. There, the issue before our Supreme Court was whether the defendant’s convictions for murder and carrying a handgun with a license violated double jeopardy protections. Although the court unanimously found there was no double jeopardy violation, it reached this conclusion by three different routes. See Guyton v. State, 771 N.E.2d 1141, 1149 (Ind.2002); Id. (Dickson, J. concurring in result); and Id. (Boehm, J., concurring).
Uncertainty, confusion and inconsistency are not the hallmarks of good jurisprudence. If such dubious characteristics are to be avoided, our appellate courts need to continue to define and clarify the Richardson actual evidence test.
It seems to me that much of the confusion arises from the Richardson direction to determine whether there is a reasonable possibility that the jury used the same evidentiary facts that establish the essential elements of one conviction to establish the essential elements of a second offense. How does one determine whether a possibility is reasonable? Is it a preponderance of the evidence test in another guise in which we look to whether it is more likely true than not true? Is it a corollary to reasonable doubt? And, whatever it is, how do we on appeal make such a determination by looking only at the record? Isn’t reasonableness a factual determination, not a legal one? Moreover, since, as this case shows, reasonable people can disagree about what is a reasonable possibility, does that not lead to the conclusion that we will get different results depending upon who is making the determination? Can we really base double jeopardy determinations on such a subjective standard?