ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Steve Carter
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
PAUL E. MILLER, ) Supreme Court No.
Defendant-Appellant, ) 02S03-0306-CR-276
)
v. )
)
STATE OF INDIANA, ) Court of Appeals No.
Plaintiff-Appellee. ) 02A03-0109-CR-315
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APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D04-0008-CF-416
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On Petition To Transfer
June 25, 2003
DICKSON, Justice
The defendant, Paul E. Miller, was convicted of burglary as a class A
felony, two counts of criminal deviate conduct as class A felonies,
criminal confinement as a class B felony, robbery as a class B felony,
resisting law enforcement as a class A misdemeanor, and battery as a class
A misdemeanor. The defendant appealed his burglary conviction on
sufficiency grounds and claimed a violation of the double jeopardy
provision of the Indiana Constitution because his use of a single weapon
was used to elevate the sentencing classification of several of his
convictions. By memorandum opinion, the Court of Appeals upheld his
burglary conviction and remanded for reduction of the sentencing
classifications. We grant the State's petition for transfer and affirm the
trial court.
During the early morning hours of August 5, 2002, T.C., an adult
woman, awoke as the defendant, an intruder, covered her mouth and placed a
knife to her throat. The defendant asked her, "Do you want to be raped or
do you want to die?" Appellant's App. at 302. After being forced to her
stomach, T.C. was able to surreptitiously dial 911 on her cell phone. Upon
realizing that the call had been made, the defendant threw the phone across
the room and struck T.C. in the head several times. When the defendant
asked her if she had any money, T.C. directed him to the pocket of her
pants, from which he removed over one hundred dollars. The defendant tied
T.C.'s hands together, pressed the knife on her back, and slipped his
fingers into her vagina and anus. In response to the 911 call, police
officers arrived and captured the defendant in T.C.'s apartment. One
officer observed a small broken window permitting access to the door lock.
The defendant contends that his convictions for class B felony
criminal confinement, class B felony robbery, and two counts of class A
felony criminal deviate conduct violate the Indiana Double Jeopardy Clause,
Article 1, § 14 of the Indiana Constitution, because of "multiple
enhancements for the presence of a singular knife." Br. of Appellant at
18. He argues that the same deadly weapon was used to elevate his
sentences for these counts. Citing Richardson v. State, 717 N.E.2d 32
(Ind. 1999), the defendant's claim is that his convictions violated
Richardson's actual evidence rule. Two or more offenses are the "same
offense" in violation of Article I, Section 14 of the Indiana Constitution,
"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." Id. at 49. However, "under the Richardson actual
evidence test, the Indiana Double Jeopardy Clause 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." Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002)
(quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). See also
Redman v. State, 743 N.E.2d 263, 267 (Ind. 2001). The defendant's use of
the same weapon in the commission of separate and distinct offenses thus
does not present a violation of the Indiana Double Jeopardy Clause. Each
of the defendant's convictions was supported by proof of at least one
unique evidentiary fact not required for any other conviction. See Bald,
766 N.E.2d at 1172.
Although not raised by the parties, we have recognized a series of
rules of statutory construction and common law that supplements the
constitutional protections afforded by the Indiana Double Jeopardy Clause.
See Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002); Spivey, 761 N.E.2d at
834. Pierce applied the rule that two crimes may not be enhanced by the
same bodily injury. Id. at 830. This was an application of the broader
rule previously expressed by Justice Sullivan prohibiting conviction and
punishment "for an enhancement of a crime where the enhancement is imposed
for the very same behavior or harm as another crime for which the defendant
has been convicted and punished." Richardson, 717 N.E.2d at 56 (Sullivan,
J., concurring) (emphasis added). The repeated use of a weapon to commit
multiple separate crimes is not "the very same behavior" precluding its use
to separately enhance the resulting convictions. Rather, the use of a
"single deadly weapon during the commission of separate offenses may
enhance the level of each offense." Gates v. State, 759 N.E.2d 631, 633
n.2 (Ind. 2001).
We decline to find error in the defendant's enhanced sentences, and we
summarily affirm the Court of Appeals decision rejecting the defendant's
claim of insufficient evidence.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J.,
concurs with separate opinion.
SULLIVAN, J., concurring.
What justifies the multiple enhancements here is the repeated use of
the knife by the defendant in committing crimes for which he was convicted.
Had the defendant merely been armed with the weapon while committing
multiple crimes, and not actually used it (or used it only once), I think
it would be improper to impose more than one enhancement. In such a
circumstance, the multiple enhancements would be for the "very same
behavior" and thus violate the rule against multiple enhancements to which
this Court subscribed in Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002)
(citing Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002), citing in turn
Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (Sullivan, J.,
concurring); id. at 57 (Boehm, J., concurring in result)).