ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Teresa D. Harper Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
ELLIOTT D. TYSON, )
Defendant-Appellant, )
)
v. ) 49S00-0006-CR-381
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Dreyer, Judge[1]
Cause No. 49G20-9905-CF-081336
________________________________________________
On Direct Appeal
April 26, 2002
DICKSON, Justice
Following a single trial involving two separate criminal incidents,
the defendant, Elliott Tyson, was convicted of two counts of conspiracy to
deal in a narcotic drug, one as a class A felony and one a class B felony,
and two counts of dealing in a narcotic drug, one as a class A felony and
one as a class B felony. The defendant was also found to be a habitual
offender.
On appeal, the defendant contends that his convictions for conspiracy
and dealing in a narcotic drug violate the Indiana Double Jeopardy Clause
and that his habitual offender finding was based on insufficient evidence.
The defendant's first contention is that his convictions and sentences
for multiple counts of dealing in a narcotic drug and conspiracy to deal a
narcotic drug violate the Indiana Double Jeopardy Clause, Article 1,
Section 14 of the Indiana Constitution, specifically the "actual evidence
test" explicated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). To
show that two challenged offenses constitute the same offense under the
actual evidence test, a defendant must demonstrate a reasonable possibility
that the evidentiary facts used by the fact-finder to establish all the
essential elements of one offense may also have been used to establish all
the essential elements of a second challenged offense. Spivey v. State,
761 N.E.2d 831, 833 (Ind. 2002); Redman v. State, 743 N.E.2d 263, 267 (Ind.
2001); Richardson, 717 N.E.2d at 53.
The essential elements of the offense of conspiracy to deal a narcotic
drug are: (1) the defendant (2) agreed with one or more other persons to
commit the crime of dealing in a narcotic drug (3) with the intent to
commit dealing in a narcotic drug and (4) the defendant or one of the
persons to the agreement performed an overt act in furtherance of the
agreement. Ind.Code § 35-41-5-2. The essential elements of the offense of
dealing in a narcotic drug are: (1) the defendant (2) knowingly or
intentionally (3) delivered (4) a narcotic drug, pure or adulterated.
Ind.Code § 35-48-4-1(a)(1).
The court read the charging information to the jury. Count I and III,
charging conspiracy to deal a narcotic drug, alleged that the defendant and
Charles McCauley, with intent to deal narcotics, agreed with each other to
deliver heroin, a narcotic drug, to J. Avington, and then as an overt act
of that agreement, delivered the heroin. As to the dealing in a narcotic
drug, counts, II and IV, the charging information alleged that the
defendant and McCauley knowingly delivered heroin a narcotic drug to J.
Avington.[2]
On two separate occasions Indianapolis Police Detective Jeffrey
Avington and a confidential informant purchased ten bindles of heroin for
$200 from the defendant and McCauley. These transactions followed a
similar pattern—the confidential informant paged the defendant, he returned
the call, an order for heroin was placed with the defendant, a meeting
place was established, and the parties met and exchanged the money and
drugs.
It is thus reasonably possible that the evidence used by the jury to
establish the essential elements of the conspiracy charge (the defendant,
intending to deal, agreed with McCauley, and the defendant delivered the
heroin to Avington) were also used to prove the essential elements of
dealing (defendant, knowingly, delivered heroin to Avington). Under the
actual evidence test, the defendant has demonstrated that for both
transactions his convictions for both dealing a narcotic drug and
conspiracy to deal a narcotic drug violate the Indiana Double Jeopardy
Clause. Both convictions cannot stand. We therefore vacate the
defendant's conspiracy convictions in Counts I and III.
The defendant also contends that there was insufficient evidence to
support his habitual offender finding. Specifically, the defendant argues
that the evidence did not support one of the alleged prior offenses,
operating while intoxicated.[3] In reviewing a claim of insufficient
evidence, we will affirm the conviction unless, considering only the
evidence and reasonable inferences favorable to the judgment, and neither
reweighing the evidence nor judging the credibility of the witnesses, we
conclude that no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Jenkins v. State, 726 N.E.2d 268,
270 (Ind. 2000).
In regard to the use of documents to establish the existence of prior
convictions we have stated:
Certified copies of judgments or commitments containing a defendant's
name or a similar name may be introduced to prove the commission of
prior felonies. Schlomer v. State, 580 N.E.2d 950, 958 (Ind. 1991)
(citing Andrews v. State, 536 N.E.2d 507 (Ind. 1989)). While there
must be supporting evidence to identify the defendant as the person
named in the documents, the evidence may be circumstantial. Id.; see
also Coker v. State, 455 N.E.2d 319, 322 (Ind. 1983). If the evidence
yields logical and reasonable inferences from which the finder of fact
may determine beyond a reasonable doubt that it was a defendant who
was convicted of the prior felony, then a sufficient connection has
been shown. Pointer v. State, 499 N.E.2d 1087, 1089 (Ind. 1986).
Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999). To prove the
defendant was previously convicted of operating while intoxicated the State
offered into evidence the information, plea agreement, and the minutes of
the court for the guilty plea. Record at 495-96, 501, 504. The documents
carry a consistent cause number for this offense,[4] and the name the
offender and other identifying information match the defendant. There was
sufficient evidence from which a fact-finder could find beyond a reasonable
doubt that the defendant was convicted of two separate and unrelated
felonies.
Conclusion
The defendant's convictions for dealing in a narcotic drug, Counts II
and IV, are affirmed, and his convictions for conspiracy to deal in a
narcotic drug, Counts I and III, are vacated. This cause is remanded to
the trial court to sentence the defendant accordingly, and to attach the
habitual offender enhancement to one of the Counts affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Magistrate Michael Jenson presided over the trial and sentencing.
[2] The charging language of Counts III and IV were parallel to Counts
I and II except that Counts I and II, based on a separate criminal incident
that occurred on a different day, were charged as class A felonies because
they were alleged to have been committed within 1000 feet of a school.
[3] The defendant does not challenge the other alleged previous
conviction—possession of a narcotic drug.
[4] While the information does not list the cause number in the pre-
printed space for the cause number (it is blank) the cause number is
stamped on the document. It is reasonable for the fact-finder to infer
that the cause number stamped on the document applies to the same charge in
which the defendant subsequently pled guilty.