KIRSCH, Judge.
Darrian Bunch ("Bunch") was convicted following a jury trial of robbery
We affirm in part, reverse in part, and remand with instructions.
On the afternoon of March 14, 2009, K.V., four of her five children, and her three visiting stepchildren were in K.V.'s Marion County home when she heard a knock at the front door. K.V. answered
The men ordered K.V. and her son to lay face down in the den. As the intruders searched the house, they brought the other six children into the den and also ordered them to lay face down. K.V. recognized that one of the men was wearing the same clothing as the man who had previously come to the door and that the other man was wearing a white jacket with designs on the shoulder, shorts, and some black, green, and white Nike shoes. Id. at 31, 37, 42. The man in the Nike shoes was later identified as Bunch.
The men asked K.V. where they could find the money, drugs, and guns, and also asked the whereabouts of K.V.'s seventeen-year-old son, De.V., who was at work. K.V. told the men that there were no guns or drugs in the house. While Bunch was searching the house, K.V.'s fifteen-year-old daughter, Ja.C., began to hyperventilate. Thereafter, Bunch entered the room, and upon seeing Ja.C.'s condition, took a small handgun out of his pocket, cocked it, put it to Ja.C.'s head, and said, "Shut her up before I do." Id. at 38, 44. After using her inhaler and drinking some water, Ja.C. was able to calm down. K.V., however, thought that Bunch was going to shoot her daughter. Id. at 44.
Bunch again left the den to search the house. When Bunch returned, both men stepped outside of K.V.'s presence to talk and, apparently intending to leave, Bunch took off his mask. Id. at 170-71, 175. During this time, K.V.'s niece knocked on the front door of the den. The intruders instructed K.V. to "[g]et rid of whoever was at the door." Id. at 41. On her way to the door, K.V. was able to see Bunch's face as he ran past her trying to pull his mask back over his face. Bunch's accomplice held a shotgun to K.V.'s head while she spoke with her niece. After the niece left, Bunch and his accomplice instructed K.V. to return to the den and cover her face.
Shortly thereafter, the men again asked K.V. where she kept the money. Bunch took K.V. to her bedroom, where she gave them $500 in cash and two lottery tickets that she had hidden in her closet. Bunch and his accomplice searched through drawers, ransacked the house, cut the phone lines, and removed the batteries from the cell phones. K.V. thought the men were going to kill her family. Id. at 56. Before leaving, Bunch took K.V.'s cell phone number and obtained information from her "ID" card. Id. at 54. Bunch also threatened that he and his accomplice would find and kill K.V. and her family if K.V. went to the police. Id. at 56. While leaving, the men instructed everyone to keep their heads down for another fifteen to twenty minutes. K.V. testified that Bunch and his accomplice were in her house for "[a]bout two and a half hours." Id. at 75. After the intruders left, K.V. drove with the seven children to pick up De. V. from work. Still afraid, K.V. did not contact the police until more than an hour later. At the police station, K.V. identified Bunch from a photo lineup.
Bunch was charged with Class B felony robbery against K.V., Class B felony burglary
Bunch does not appeal his robbery conviction; instead, he asks this court to find that all of his remaining convictions violate the prohibition against double jeopardy under the Indiana Constitution.
Under the "actual evidence" test, a defendant must demonstrate 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 all of the essential elements of a second challenged offense. Id. at 53. "Application of this test requires the court to `identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury's perspective[.]'" Lee v. State, 892 N.E.2d 1231, 1234 (Ind.2008) (quoting Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002)). Therefore, we consider the essential elements of the offenses, the charging
The elements of robbery as a Class C felony are satisfied when a person: (1) knowingly or intentionally; (2) takes property from another person; (3) by using or threatening the use of force or by putting any person in fear. See Ind.Code § 35-42-5-1. To convict Bunch of the elevated crime of robbery as a Class B felony, the State had to prove that the crime was committed: (1) while armed with a deadly weapon; or (2) results in bodily injury to any person other than the defendant. Id. In this case, the State offered the following evidence. Once inside the home, Bunch, armed with a sawed-off shotgun, threatened K.V., demanded money, drugs, and guns, and emptied drawers and ransacked her home in his two-hour search. After K.V. admitted that she had money hidden, Bunch followed her to her bedroom and, while still armed, took $500 and two lottery tickets from K.V. The jury found that the State had proved its case and convicted Bunch of robbery as a Class B felony. He asks this court to vacate his convictions for burglary, intimidation, carrying a handgun without a license, and ten counts of criminal confinement. Appellant's Br. at 16.
Bunch contends that the State referred to the "presence of deadly weapons" and the "brandishing of deadly weapons" as evidence to prove both the charge of robbery and of burglary, each as a Class B felony. Appellant's Br. at 9. Bunch, therefore, asserts that his burglary conviction was in violation of Indiana's Double Jeopardy Clause. We disagree. The elements of burglary as a Class C felony are satisfied when a person: (1) breaks and enters; (2) the building or structure of another person; (3) with intent to commit a felony therein. Ind.Code § 35-43-2-1. To convict Bunch of the elevated crime of burglary as a Class B felony, the State had to prove: (1) that Bunch committed the crime while armed with a deadly weapon; or (2) the building or structure he entered was a dwelling. See Ind.Code § 35-43-2-1(1) (emphasis added). The charging information alleged that Bunch "did break and enter the building or structure, and dwelling of [K.V.], ... with intent to commit the felony of Robbery therein." Appellant's App. at 47. Here, the State proved that Bunch entered into K.V.'s dwelling with the intent to commit robbery therein; no evidence of a deadly weapon was required. Because the burglary was complete before the robbery began, Bunch's conviction for both robbery and burglary did not violate Indiana's Double Jeopardy Clause.
Bunch also contends that his convictions for criminal confinement violated the prohibition against double jeopardy because the presence of a deadly weapon was critical to the State's prosecution of the robbery as well as the ten counts of criminal confinement. A person who knowingly or intentionally: (1) confines another person without the other person's consent; or (2) removes another person, by fraud, enticement, force, or threat of force, from one place to another, commits Class D felony criminal confinement. Ind.Code § 35-42-3-3(a). However the offense is a Class B Felony if it is committed while armed with a deadly weapon or results in serious bodily injury to another person. Ind.Code § 35-42-3-3(b)(2).
We next address Bunch's allegation that his convictions for robbery and criminal confinement of K.V. violate double jeopardy. Bunch contends that these convictions violate double jeopardy because the threat of force required to elevate the robbery and criminal confinement to a Class B felony was established by the presence of the same deadly weapon. "[U]nder 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." Spivey, 761 N.E.2d at 833. Nevertheless, our Supreme Court has "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) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring)). These series of rules supplement the constitutional protections afforded by the Indiana Double Jeopardy Clause. Miller v. State, 790 N.E.2d 437, 439 (Ind.2003). Because one of those common law rules is consistent with Bunch's argument—that is, "[c]onviction 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)—we will address Bunch's argument in that context.
Our Supreme Court's decision in Miller is directly on point. There, the defendant argued that his convictions violated double jeopardy because of "multiple enhancements for the presence of a singular knife." Miller, 790 N.E.2d at 438. The Supreme Court found this did not constitute double jeopardy under the actual evidence test of Richardson. Id. The Court continued its analysis, however, by noting the existence of a common law supplement to constitutional double jeopardy protections, which the Court had recognized in Pierce. Id.
Miller, 790 N.E.2d at 439 (emphasis added); see also Marshall v. State, 832 N.E.2d 615, 622 (Ind.Ct.App.2005) (three convictions for Class A felony child molestation committed with the same knife did not constitute double jeopardy), trans. denied. Under the reasoning set forth in Miller, the use of the sawed-off shotgun to enhance Bunch's convictions for confinement and robbery did not constitute double jeopardy.
Finally, Bunch contends that his conviction for Counts III, XI, and XII (the three counts of confinement against K.V.) violate the Indiana Double Jeopardy Clause because, regardless of whether K.V. was confined or removed, they constitute only one distinct confinement. We agree. Crimes including kidnapping and the lesser included offense of confinement are defined under the continuing crime doctrine. Bartlett v. State, 711 N.E.2d 497, 500 (Ind.1999). Under this doctrine, the span of the kidnapping or confinement is determined by the length of time of the unlawful detention necessary to perpetrate the crime. Id. It begins when the unlawful detention is initiated and ends only when the victim both feels, and is in fact, free from detention. Id. Although a single incident of confinement may result in two separate convictions, in such cases the confinement must be divisible into two separate parts. Boyd v. State, 766 N.E.2d 396, 400 (Ind.Ct.App.2002). A confinement ends when the victim both feels and is, in fact, free from detention, and a separate confinement begins if and when detention of the victim is re-established. Id.
Bunch's conviction in Count III was based upon his removing K.V., at gunpoint, from the hallway of her home, taking her to the den, and forcing her to lay face down. His conviction under Count XI was based upon his removing her from the den and taking her, at gun point, upstairs to her bedroom in order to obtain the money and lottery tickets. Finally, Bunch's conviction under Count XII was based upon his ordering K.V. to leave the den and go to the front door in order to dissuade her niece from entering the home. There was no evidence, nor does the State point to any, suggesting that K.V. felt free and was, in fact, free from detention at any time within the span of her confinement during Bunch's home invasion. Regardless of the number of rooms to which she
Bunch contends that the presence of a deadly weapon was again used, in violation of the prohibition against double jeopardy, to elevate his intimidation conviction to a Class C felony. To convict Bunch of intimidation as a Class C felony, the State had to prove that Bunch: (1) communicated; (2) a threat to commit a forcible felony; (3) with the intent that the other person engage in conduct against the other person's will; (4) while drawing or using a deadly weapon. Ind.Code § 35-45-2-1. As noted above, no double jeopardy violation occurs where the same weapon is used to elevate multiple offenses. Miller, 790 N.E.2d at 439. Furthermore, here, there is no reasonable possibility that the jury used the same evidentiary facts of the other crimes to establish the essential elements of this crime. Richardson, 717 N.E.2d at 53. The information charged that Bunch, while holding a handgun to Ja.C.'s head, communicated a threat to kill her if she did not stop causing a disruption. Appellant's App. at 50. Bunch was armed with a sawed-off shotgun while he committed the other offenses. Therefore, it was reasonable to conclude that Bunch's conviction for intimidation did not constitute double jeopardy.
We next address Bunch's contention that his convictions for robbery and carrying a handgun without a license violate double jeopardy. To prove the offense of robbery, as a Class B felony, the State presented evidence that Bunch robbed K.V. while armed with a deadly weapon. That deadly weapon was a shotgun, which was a different weapon than the one charged in carrying a handgun without a license. To convict Bunch for carrying a handgun without a license the State had to prove that Bunch carried a handgun on or about his person, away from his dwelling or business. Ind.Code § 35-47-2-1. The burden then shifted to Bunch to establish that he possessed a valid license. Thy Ho v. State, 725 N.E.2d 988, 992 (Ind.Ct.App.2000) (citing Harris v. State, 716 N.E.2d 406, 411 (Ind.1999)). Here, Bunch neither made this proof, nor could he have. At the time he committed this crime Bunch was only seventeen. Indiana Code section 35-47-2-3(g)(3) provides in pertinent part, that a license to carry a handgun shall not be issued to any person who is under the age of eighteen. Bunch's conviction for carrying a handgun without a license did not constitute double jeopardy.
Bunch next contends that there was insufficient evidence to support his criminal confinement convictions for Counts VII, VIII, IX, and X. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or assess the credibility of witnesses. Chatham v. State, 845 N.E.2d 203, 205 (Ind.Ct. App.2006). Rather, we look to the evidence and the reasonable inferences that may be drawn therefrom that support the conviction. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
The testimony of the children is not necessary to establish their lack of consent if the evidence supports a reasonable inference that they did not consent to being held in the den. K.V. testified that the intruders, carrying sawed-off shotguns, entered K.V.'s home and ordered K.V. and her fourteen-year-old son to lay face down on the den floor. Tr. at 31-33. Thereafter, one of the intruders remained with K.V. and Je.C. in the den while the other man searched the home, found the other children and, while still armed with a deadly weapon, forced them to the den. Id. at 33. K.V. testified that, once in the den, "[e]veryone was ordered to lie down." Id. Fifteen-year-old Ja.C. testified that when the men initially entered the house, she heard her mother say, "Don't shoot me." Id. at 189. Peaking around the corner and seeing two men wearing masks and carrying guns, Ja.C. ran upstairs. Soon thereafter, Bunch came upstairs carrying a gun, forced her to the den, and had her lay face down with K.V. and the children. Id. at 191-92. The evidence reveals that the intruders carried guns, ordered everyone in the house to lay face down in the den, and that the mother and the oldest child in the house did not consent to being held. This evidence supports a reasonable inference that the four children, ages fourteen, eleven, eight, and three, likewise did not consent to being held in the den.
Finally, Bunch contends that the trial court abused its discretion by failing to issue an adequately detailed sentencing statement. Specifically, Bunch asserts that the sentencing statement does not adequately explain the aggregating factors that both allow the imposition of a twelve-year sentence on his Class B felonies and warrant the imposition of a consecutive sentence for his intimidation conviction.
Trial courts are required to enter sentencing statements whenever imposing sentence for a felony offense. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007). The statement must include a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence. Anglemyer, 868 N.E.2d at 490. If the recitation includes a finding of aggravating or mitigating circumstances,
Once the trial court has entered a sentencing statement, which may or may not include the existence of aggravating and mitigating factors, it may then "impose any sentence that is ... authorized by statute; and ... permissible under the Constitution of the State of Indiana." Ind. Code § 35-38-1-7.1(d). If the sentence imposed is lawful, this court will not reverse unless the sentence is inappropriate based on the character of the offender and the nature of the offense. Ind. Appellate Rule 7(B); Boner v. State, 796 N.E.2d 1249, 1254 (Ind.Ct.App.2003). The burden is on the defendant to persuade this court that his sentence is inappropriate. Patterson v. State, 909 N.E.2d 1058, 1063 (Ind. Ct.App.2009).
At the close of Bunch's sentencing hearing, the trial court made the following statements:
The sentencing range for a Class B felony is a fixed term of between six and twenty years with the advisory sentence being ten years. Ind.Code § 35-50-2-5. The sentencing range for a Class C felony is between two and eight years with the advisory sentence being four years. Ind. Code § 35-50-2-6. The sentencing range for a Class A misdemeanor is a fixed term of not more than one year. Ind.Code § 35-50-3-2.
Here, the trial court sentenced Bunch to twelve years for each of his twelve Class B felonies. The twelve-year sentence was just two years above the advisory and, even though some of these Class B felonies involved young victims, the trial court allowed these sentences to run concurrently. Additionally, the trial court sentenced Bunch to three years for the intimidation conviction—one year less than the advisory for a Class C felony. In ordering the sentence to run consecutively to the twelve-year sentence, the trial court explained that it "is an aggravator, both in terms of the age of the victim and nature of the circumstances." Tr. at 312. "[A] trial court can impose consecutive sentences if warranted by the aggravating circumstance." Monroe v. State, 886 N.E.2d 578, 579 (Ind.2008). We agree that such aggravating circumstances are present in this case, where Bunch, wearing a mask and carrying a sawed-off shotgun, placed a cocked handgun to the head of a fifteen-year-old girl who was hyperventilating and ordered, "Shut her up before I do." Id. at 38, 44.
Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer, 868 N.E.2d at 490. The trial court did not abuse its discretion in sentencing Bunch to a fifteen-year executed sentence.
Bunch's convictions and sentences for confining K.V., entered as to Counts III, XI, and XII, violate the double jeopardy clause of the Indiana Constitution. Accordingly, we remand this case with instructions that his convictions and sentences in Counts XI and XII, which merged into his conviction and sentence in Count III, must be vacated. We otherwise affirm Bunch's convictions and sentences.
Affirmed in part, reversed in part, and remanded with instructions.
RILEY, J., and BAILEY, J., concur.
