Attorney for Appellant
Harry J. Falk
Bower & Falk
Kentland, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JOHN JESSIE SWAYNIE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 79S02-0104-CR-194
)
) Ct. of Appeals No.
) 79A02-9912-CR-809
)
)
)
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Rex W. Kepner, Special Judge
Cause No. 79D01-9811-CF-126
ON PETITION TO TRANSFER
February 8, 2002
SULLIVAN, Justice.
Defendant John Jesse Swaynie was convicted of attempted murder and
burglary after kicking in the front door of a family's home and attempting
to choke the husband to death. We hold that the Double Jeopardy Clause of
the Indiana Constitution does not bar convicting and sentencing defendant
for both attempted murder and burglary because they constitute separate
criminal transgressions.
Background
Early in the morning of November 18, 1998, Defendant John Jessie
Swaynie kicked in the front door of the home of the family of a woman whom
had served as his guardian ad litem during juvenile proceedings in the
1980s. After entering the home, Defendant attacked the woman's husband who
had run downstairs to investigate. Defendant pushed the man into the wall
and then proceeded to grab and immobilize him from behind. Defendant put
his hands around the man's neck and began to strangle him, causing the
victim to gasp for air and lose consciousness until a neighbor arrived and
was able to free him from Defendant's grasp. While Defendant was
strangling the man, he called out to the woman, “I'm killing your husband.”
Following a jury trial, Defendant was convicted of Attempted
Murder,[1] Burglary,[2] and Confinement.[3] The trial court entered
judgment on the attempted murder and burglary verdicts and imposed an
aggregate sentence of 70 years. In a memorandum decision, the Court of
Appeals affirmed the convictions but vacated the sentence for burglary on
grounds that imposing sentences under these circumstances for both
attempted murder and burglary violated Defendant's right against double
jeopardy as provided by Article I, § 14, of the Indiana Constitution.
Swaynie v. State, 740 N.E.2d 594 (Ind. Ct. App. 2000) (table). We granted
the State's petition to transfer. Swaynie v. State, 753 N.E.2d 10 (Ind.
2001) (table).
Discussion
Defendant raises two issues in his appeal. In addition to the double
jeopardy claim resolved in his favor by the Court of Appeals, he asks that
his conviction be reversed on grounds that the trial court committed
reversible error when it denied his motion in limine to exclude the woman's
testimony regarding information she obtained during the period she acted as
Defendant's guardian ad litem. However, Defendant did not object at any
time during the woman's testimony regarding information she gained as
Defendant's guardian ad litem. Rulings on motions in limine are not final
decisions and, therefore, do not preserve errors for appeal. White v.
State, 687 N.E.2d 178, 179 (Ind. 1997). As a consequence, this issue is
not available for review here.
As to Defendant's double jeopardy claim, he contends that his
convictions and sentencing for attempted murder and burglary violate
Indiana's double jeopardy clause. 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). Under Richardson, “two 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. 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.
In this case, the jury was instructed that in order to convict
Defendant of burglary the State was required to prove beyond a reasonable
doubt that Defendant (1) knowingly or intentionally, (2) broke into and
entered, (3) the victims' home, (4) with the intent to commit a felony, to
wit, murder the woman's husband. The Court of Appeals concluded that
Defendant's double jeopardy rights were violated because there was a
reasonable possibility that the evidence that Defendant strangled the
husband was used by the jury to establish both the essential elements of
the attempted murder charge and the intent-to-commit-murder element of the
burglary charge.
We hold that there is no Indiana double jeopardy violation in these
circumstances. The criminal transgression addressed by the proscription on
burglary is the breaking into and entering of a building or structure of
another person with the intent to commit a felony. Thus, the criminal
transgression of burglary is committed by a person intending to commit an
underlying felony at the moment the building or structure is broken into
and entered. The person's culpability is established at the point of entry
regardless of whether the underlying intended felony is ever completed.
Indeed, a person who breaks and enters without any intent to commit an
underlying felony is not guilty of burglary. Because burglary and the
underlying intended felony (if committed) are separate criminal
transgressions, Richardson does not prohibit conviction and sentencing for
both.
At least two of our post-Richardson decisions illustrate this point.
In Johnson v. State, where the same evidence that supported Johnson's
murder conviction was also used to elevate Johnson's burglary conviction to
a Class A felony, we held that the Class A enhancement was invalid but that
this did “not entitle Johnson to escape punishment for the burglary of
which he was convicted.” 749 N.E.2d 1103, 1108 (Ind. 2001).[4] A similar
point is made in Mickens v. State where Mickens was convicted of both
murder and carrying a handgun without a license. Because he used to
handgun to commit the murder, he argued that Richardson's “actual evidence”
test prohibited conviction and punishment on both counts. We rejected his
claim that he was being punished for the same criminal transgression,
noting “[c]arrying the gun along the street was one crime and using it was
another.” 742 N.E.2d 927, 931 (Ind. 2001).
Here, breaking into and entering the victims' home with intent to
kill the husband was one criminal transgression and attempting to kill him
was another just as in Johnson and Mickens. Defendant was not entitled to
relief under Richardson.
Conclusion
Having previously granted transfer, we affirm the judgment of the
trial court.
SHEPARD, C.J., and BOEHM, and RUCKER, JJ., concur.
DICKSON, J., not participating.
-----------------------
[1] Ind. Code § 35-42-1-1 (1998).
[2] Id. § 35-43-2-1.
[3] Id. § 35-42-3-3.
[4] Compare McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999), where
McIntire had been convicted of burglary as a Class A felony and criminal
recklessness as a Class D felony. Finding that the same infliction of
serious bodily injury that justified the Class A enhancement of the
burglary conviction also established the essential elements of the criminal
recklessness conviction, we elected to vacate the criminal recklessness
conviction altogether. However, we could have left both the burglary and
criminal recklessness convictions in place by invalidating only the Class A
enhancement.