ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
Charles H. Scruggs Steve Carter
Kokomo, Indiana Attorney General of Indiana
Teresa D. Harper Robin Hodapp-Gillman
Bloomington, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MICHAEL L. DAVIS, )
)
Appellant (Defendant), )
)
v. ) Cause No. 34S00-0009-CR-527
)
STATE OF INDIANA, )
)
Appellee (Plaintiff). )
APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause No. 34C01-0002-CF-00034
June 25, 2002
SHEPARD, Chief Justice
Michael L. Davis appeals his convictions for attempted murder,
aggravated battery, and burglary. He presents the following issues:
I. Whether the State presented sufficient evidence to support the
burglary conviction;
II. Whether Davis’ convictions for aggravated battery, burglary, and
attempted murder violate Indiana’s Double Jeopardy Clause;
III. Whether Davis is entitled to a mistrial because two jurors saw
him in restraints and one juror overheard a rumor that Davis’
family had called in a bomb threat; and
IV. Whether the trial court erred in declining to let Davis withdraw
his plea of guilty to the habitual offender charge.
Facts & Procedural History
The evidence at trial revealed that on January 17, 2000, Davis and
his accomplice William Jenks plotted to rob David Bentzler, Sr. When the
two arrived at Bentzler’s home, Davis tried to open the lock with a master
key. Bentzler was aware of their arrival and had armed himself with a gun.
Intending to scare Davis and Jenks away, Bentzler opened the door
slightly, but Davis immediately forced the door open, pinning Bentzler to
the wall. Davis and Bentzler struggled for control of the gun. Forced
back farther into the room, Bentzler lost hold of his weapon, and Davis
struck him repeatedly over the head with the gun.
Davis then began to strangle Bentzler, cutting off his airway. Davis
ordered Jenks to get a knife from the kitchen. Jenks brought Davis the
knife, and Davis stabbed Bentzler in the neck. Fortunately, the knife
blade broke. Bentzler attempted to escape, but Davis again grappled with
Bentzler and choked him. Davis asked Jenks to get another knife, but Jenks
convinced him that the police were coming. The two men left the home and
escaped in Davis’ truck.
Bentzler suffered several injuries during the attack, including
numerous lacerations to his head as a result of blows from the gun and a
serious knife cut to his neck. He also suffered internal bruising to his
throat, cuts to his hands, and permanent scarring.
A jury found Davis guilty of all charges. Davis admitted an habitual
offender charge. The court sentenced him to fifty years for attempted
murder, adding thirty years for his habitual offender status, and a
consecutive sentence of thirty years for burglary. It imposed a concurrent
twenty years for aggravated battery.
Sufficiency of the Burglary Evidence
Davis asserts that because Bentzler opened the door, there was
insufficient evidence to support the breaking element of burglary. The
State responds by arguing that a breaking occurred when Davis forced the
door open.
Burglary occurs when a person “breaks and enters the building or
structure of another person, with intent to commit a felony in it.” Ind.
Code Ann. § 35-43-2-1 (West 1998). Using even the slightest force to gain
unauthorized entry satisfies the breaking element of the crime. Trice v.
State, 490 N.E.2d 757 (Ind. 1986). For example, opening an unlocked door
or pushing a door that is slightly ajar constitutes a breaking. Utley v.
State, 589 N.E.2d 232 (Ind. 1992), cert. denied, 506 U.S. 1058 (1993).
The State supported Davis’ burglary charge with the testimony of both
Bentzler, the burglary victim, and Jenks, Davis’ accomplice. Bentzler
testified:
I’m going to open up the door a little bit ‘cause they’re going to get
in somehow or another and I was going to hold my gun out like this,
which I did, and let them know that I’ve got a gun. . . . As soon as
I opened the door, I didn’t even get that full sentence out. Before I
even got probably half that sentence out, the door come smacking into
my head and knocked me back to my wall and [Davis] had me pinned up to
the wall and was struggling to get the gun out of my hand.
(R. at 271-72.) In addition, Jenks testified that a struggle ensued as the
door was cracked open. (R. at 449-50.) This evidence allowed a reasonable
inference that Davis used force to gain entry. Consequently, the evidence
was sufficient to support a burglary conviction.
Double Jeopardy
Davis next claims that his convictions violate Indiana’s Double
Jeopardy Clause. Davis contends that his convictions for attempted murder,
aggravated battery and burglary as a class A felony arise from the same
factual evidence: the attack with a knife. He requests that the aggravated
battery conviction be vacated and the burglary conviction be reduced to a
class C felony. [1]
Article 1, section 14 provides that “[n]o person shall be put in
jeopardy twice for the same offense.” Double jeopardy analysis involves
the dual inquiries of the “statutory elements test” and the “actual
evidence test,” as generally described in Richardson v. State, 717 N.E.2d
32 (Ind. 1999). Davis does not argue the statutory elements test, so we
therefore examine the actual evidence used in this case.
The actual evidence test 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, 717 N.E.2d at 53. We have elaborated on this test in recent
opinions.
In Spivey v. State, we clarified that the actual evidence test “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.” 761 N.E.2d 831, 833 (Ind. 2002)
(emphasis added).
The evidence presented at trial established that Davis forced his way
into Bentzler’s home and struck him several times over the head. While
choking him, Davis then cut Bentzler with a knife. After the knife blade
broke, Bentzler attempted an escape, but Davis again struck and choked him.
The court directed the jury’s application of the evidence on attempted
murder and aggravated battery, drawing attention to specific evidentiary
facts.[2] The attempted murder instructions read:
To convict the defendant of Attempted Murder as charged in Count I,
the State must have proved [sic] each of the following elements beyond
a reasonable doubt:
The defendant:
1. while acting with the specific intent to kill David
Bentzler, Sr.;
2. did cut David Bentzler, Sr.’s throat with a knife;
3. which was conduct constituting a substantial step toward
the commission of the intended crime of murder.
(R. at 125.)
The aggravated battery instruction said:
To convict the defendant of Aggravated Batter[y] as charged in Count
III, the State must have proved [sic] each of the following elements:
The defendant:
1. knowingly or intentionally;
2. inflicted injury upon David Bentzler Sr., to-wit: cut David
Bentzler, Sr. with a knife;
3. which created a substantial risk of death, or caused serious
permanent disfigurement, or protracted loss or impairment of
the function of a bodily member or organ.
(R. at 130.)
Based upon our review of the evidence, charging information and jury
instructions, the conviction for aggravated battery arose from the same
evidence that gave rise to the conviction for attempted murder. Therefore,
a reasonable possibility exists that the jury used the evidence proving the
elements of attempted murder to also establish the elements of aggravated
battery. Because both convictions cannot stand under the Indiana Double
Jeopardy Clause, we vacate the conviction for aggravated battery. See also
Spry v. State, 720 N.E.2d 1167, 1170 (Ind. Ct. App. 1999), transfer denied.
On the other hand, the same analysis fails regarding Davis’ convictions
for burglary as a class A felony and attempted murder. Although each
charge utilizes the same factual event, Davis’ stabbing of Bentzler, a
burglary conviction requires additional evidentiary facts establishing the
essential elements of (1) breaking and entering (2) the building or
structure of another (3) with the intent to commit a felony in it. Per our
decision in Spivey, we find no double jeopardy violation. See also Swaynie
v. State, 762 N.E.2d 112, 115 (Ind. 2002).
Nevertheless, “we have long adhered to a series of rules of statutory
construction and common law that are often described as double jeopardy,
but are not governed by the constitutional test set forth in Richardson.”
Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Among these is the
doctrine that where a single act forms the basis of both a class A felony
burglary conviction and also the act element of an attempted murder
conviction, the two cannot stand. King v. State, 517 N.E.2d 383, 385 (Ind.
1988); Bevill v. State, 472 N.E.2d 1247, 1254 (Ind. 1985). Accordingly,
the burglary conviction as a class A felony must be reduced.
Davis seeks reduction of his conviction to a class C felony.[3] In
response, the State concedes that Davis’ conviction for burglary as a class
A felony is error, but urges us to only reduce the conviction to a class B
felony.
In Johnson v. State, 749 N.E.2d 1103 (Ind. 2001), we recently
confronted this same issue. In that case, the defendant was convicted of
murder and burglary as a class A felony, and we found that the same
evidence was erroneously used to support both convictions. Id. Because
the evidence presented at trial proved that the defendant broke and entered
the victim’s dwelling, we reduced the conviction to a class B felony. Id.;
see also Curry v. State, 740 N.E.2d 162, 165-67 (Ind. Ct. App. 2000)
(reducing burglary conviction from class A to class B felony because the
same evidence was used to convict the defendant of attempted rape and
battery).
The same analysis is applicable here. The evidence presented at
trial clearly proves that Davis broke and entered Bentzler’s dwelling.
Therefore, we reduce Davis’ burglary conviction to a class B felony.
I. Motion for Mistrial
Davis next contends that the court erred in denying his motion for
mistrial. Davis alleges that his constitutional rights were violated
because some members of the jury not only saw him in handcuffs and shackles
but also overheard rumors that Davis’ family had made bomb threats to the
courthouse.[4] The State responds by arguing that Davis either waived
these issues[5] or cannot demonstrate actual harm as a result of the
alleged errors.
The granting of a mistrial lies within the sound discretion of the
trial court, and we reverse only when an abuse of discretion is clearly
shown. Ramos v. State, 433 N.E.2d 757 (Ind. 1982). The general rule
precludes presenting a defendant to the jury in handcuffs or shackles, but
a court may need to do so in certain exceptional circumstances when
restraint is necessary to prevent the escape of the prisoner, to protect
those in the courtroom, or to maintain order. Smith v. State, 475 N.E.2d
1139, 1144 (Ind. 1985), rev’d on other grounds, 547 N.E.2d 817 (Ind. 1989).
Moreover, it is not an abuse of discretion for a trial court to deny a
motion for mistrial because a juror has seen a defendant in handcuffs
unless the defendant demonstrates actual harm. Jenkins v. State, 492
N.E.2d 666 (Ind. 1986).
One juror testified that he saw Davis in restraints before trial. (R.
at 919-20.) Prior to jury selection, the Howard County courthouse received
a bomb threat, forcing a quick evacuation. (R. at 223.) In the presence
of potential jurors, shackled and handcuffed inmates (including Davis) were
escorted outside to be returned to jail. (Id.) Securing prisoners during
such an emergency was a reasonable response to a potentially critical
situation. Moreover, the juror testified that viewing Davis in restraints
had no bearing on his verdict. (R. at 920.)
A second juror testified she saw Davis in handcuffs “at some point
after we were into the trial,” but that she simply thought Davis’ being in
restraints was “just protocol.” (R. at 922-23.) Exactly where this
occurred is unknown, but we have held, for example, that “reasonable jurors
could expect [defendants] to be in police custody while in the hallway of
the courthouse.” Jenkins, 492 N.E.2d at 679 (citing Johnson v. State, 369
N.E.2d 623 (Ind. 1977), cert. denied, 436 U.S. 948 (1978)). Moreover,
“[p]otential jurors would reasonably expect that anyone in police custody
would be restrained, regardless of the precise nature of the charge against
the accused.” Malott v. State, 485 N.E.2d 879, 882 (Ind. 1985), abrogated
on separate grounds, Richardson v. State, 717 N.E.2d 32 (Ind. 1999).
Because Davis has not demonstrated actual harm as a result of the juror
seeing him momentarily in handcuffs, the trial court did not abuse its
discretion in denying the motion for a mistrial.
Finally, Davis presented the testimony of a third juror who stated:
At some point in time, and I’m not sure which day, in passing by
someone in a conversation, I wasn’t in the conversation, but I just
heard someone say possibly [the bomb threat] was handled by the family
and that’s what I heard. I have no idea where I heard it from.
(R. at 916.) The juror further testified that hearing this had no effect
on her decision in the case. (R. at 917.) As with the previous
allegations of error, Davis can demonstrate no actual harm resulting from
the juror overhearing the rumor. The trial court did not abuse its
discretion.
IV. Withdrawal of Davis’ Guilty Plea
Finally, Davis claims the trial court erred in not allowing him to
withdraw his guilty plea to the habitual offender charge. Davis asserts
that because he was mentally exhausted as a result of the long day of trial
that preceded his plea, it was unfair and unjust to prevent him from
changing his mind later.
Indiana Code § 35-35-1-4 provides the standard to apply when a
defendant pleads guilty and then requests to withdraw the plea:
After entry of a plea of guilty . . . but before imposition of
sentence, the court may allow the defendant by motion to withdraw his
plea . . . for any fair and just reason unless the state has been
substantially prejudiced by reliance upon the defendant’s plea. . . .
The ruling of the court on the motion shall be reviewable on appeal
only for an abuse of discretion. However, the court shall allow the
defendant to withdraw his plea . . . whenever the defendant proves
that withdrawal of the plea is necessary to correct a manifest
injustice.
Ind. Code Ann. § 35-35-1-4(b) (West 1998) (emphasis added).
Trial court rulings on such requests are presumptively valid, and
parties appealing an adverse decision must prove that a court has abused
its discretion. Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998). A
trial court abuses its discretion only “when the failure of the trial court
to grant the motion would result in . . . a manifest injustice.” Id.
Before sentencing, Davis moved to withdraw his plea. After hearing
evidence on Davis’ motion to withdraw his guilty plea, the court stated:
The Defendant does have [the] burden to show that the plea of true or
plea of guilty to this charge was not made freely and voluntarily or
otherwise without full understanding of the advisement of rights or
without factual basis.
(R. at 945-46.) This was an incorrect standard for the trial court to
apply. Instead, Davis was required to demonstrate (1) a fair and just
reason for withdrawal of the guilty plea and (2) no reliance by the State
that resulted in substantial prejudice.
Nevertheless, Davis does not overcome the presumption that the trial
court correctly denied the withdrawal of his guilty plea. Davis asserts
that he was tired, confused, and upset because the jury had recently found
him guilty of the charged offenses. This is not enough to show that the
trial court abused its discretion in denying the motion to withdraw his
guilty plea. Although Davis vacillated between pleading guilty and
contesting the charge, (R. at 893, 896), the court questioned Davis
thoroughly on his understanding of the plea, (R. at 893-909).
Judge Murray asked Davis whether he suffered from mental or emotional
disabilities that interfered with his ability to understand the plea. (R.
at 895.) Davis answered, “no.” (Id.) She asked whether he understood the
rights he was forfeiting regarding trial and appeal. (R. at 895-903.) She
asked whether he understood that he could receive up to thirty years’
incarceration for the guilty plea. (R. at 903-04.) She asked whether he
had consulted with his attorney on the matter. (R. at 904.) To each of
these questions, Davis answered yes.[6]
While Davis could understandably have been disappointed by the jury’s
findings, the record does not demonstrate that permitting withdrawal of the
plea was necessary to prevent a manifest injustice.
Conclusion
We remand this cause to the trial court with instructions to vacate
Davis’ conviction for battery and reduce the conviction for burglary to a
class B felony. In all other respects, the judgment of the trial court is
affirmed.
SULLIVAN, BOEHM, and RUCKER, JJ., concur.
DICKSON, J., concurs in result without separate opinion.
-----------------------
[1] We reject the State’s assertion that concurrent sentences vitiate
a double jeopardy claim. The State relies on a footnote in Roop v. State,
730 N.E.2d 1267, 1270 n.2 (Ind. 2000), which states:
Roop’s convictions for child molesting, neglect of a dependent, and
battery appear to raise a claim under the Indiana Double Jeopardy
Clause. . . . [W]e note that raising the issue would likely have had
no practical effect because the sentences were ordered served
concurrently.
The comment in Roop was intended solely as an observation that the duration
of Roop’s sentence would have been no different, not as a statement that
concurrent sentences moot a double jeopardy claim.
[2] The court also read the State’s formal charging information. The
attempted murder information alleged that Davis “knowingly or intentionally
attempt[ed] to kill . . . David Bentzler . . . [by] cut[ting] David
Bentzler’s throat with a knife.” (R. at 121.) Likewise, the information
charging him with aggravated battery stated that Davis “inflict[ed] injury
on . . . Bentzler . . . which created a substantial risk of death or caused
serious disfigurement, to-wit: did cut the throat of David Bentzler, Sr.,
with a knife.” (R. at 123.)
[3] Class C burglary occurs when “[a] person . . . breaks and enters the
building or structure of another person, with intent to commit a felony in
it.” Ind. Code § 35-43-2-1. Burglary is a class B felony if it is
committed “while armed with a deadly weapon” or if the building is a
dwelling. Ind. Code § 35-43-2-1(1) (emphasis added). Burglary becomes a
class A felony if it results in bodily injury or serious bodily injury to
someone other than the defendant. Ind. Code § 35-43-2-1(2).
[4] Davis also asserts that the subsequent questioning of three jurors
about their viewing of the defendant in restraints and their knowledge of
the bomb threat violated Indiana Rule of Evidence 606(b). (Appellant’s Br.
at 18.) It did not. Rule 606(b) permits a juror to testify concerning
“whether extraneous prejudicial information was improperly brought to the
jury’s attention” or “whether any outside influence was improperly brought
to bear upon any juror.” Both defense counsel and the prosecutor asked
proper questions of the jurors, and each juror emphatically denied that
viewing the defendant in restraints or hearing rumors of the bomb threat
had any bearing on their verdict. (R. at 914-24.)
[5] We will address these issues on the merits, although there is
considerable room to argue that Davis has waived them. The record
indicates that the court was evacuated as a result of a bomb threat, and
Davis was escorted outside with other inmates in the presence of potential
jurors. (R. at 223.) After discussing the issue with Davis, Judge Murray
noted that Davis agreed to waive any matter pertaining to mistrial. (R. at
226.) Nevertheless, the record is not explicit with regard to precisely
what Davis waived, and does not state whether the potential jurors viewed
Davis in restraints or whether the source of the bomb threat was discussed.
[6] We find the following record excerpts particularly relevant:
Davis: Your Honor, I’m sorry. I want to retract my last
statement. I’ll just plead guilty. It’s just going to
happen anyway so I’m guilty of it.
Court: Mr. Davis, I want you to be absolutely sure --
Davis: Yeah.
. . .
Court: Sir, you understand that as a[n] habitual felony offender
the court enters a judgment of conviction thereby, that the
Court could sentence you to an additional term of up to 30
years incarceration?
Davis: [Following a conference between Davis and his counsel.]
Yes, Your Honor.
. . .
Court: Do you feel that the plea of guilty you’re offering now is
your own free choice and decision?
Davis: Yes.
Court: And is it still your intention to plead guilty?
Davis: Yes.
(R. at 896-97, 903-04, 905.)