NAJAM, Judge.
Bryson Tyrone Street appeals his convictions and sentence after a jury found him guilty of the following offenses: burglary, as a Class A felony; attempted robbery, as a Class A felony; attempted robbery, as a Class B felony; battery, as a Class C felony; carrying a handgun without a license, a Class C felony; criminal recklessness, as a Class D felony; neglect of a dependent, as a Class D felony; possession of marijuana, as a Class A misdemeanor; and to being an habitual offender.
We affirm in part, reverse in part, and remand with instructions.
Michael Corn and his girlfriend, Bria Benjamin, lived together in Connersville with their two-year-old son. Corn and Benjamin became acquainted with Street around March of 2014. Between March and June, Street visited Corn and Benjamin's home "about ten" times. Trial Tr. at 157.
Around 8:00 a.m. on June 11, 2014, Corn, Benjamin, and their son were awoken by someone kicking in their back door. A neighbor observed "a chubby person in a gray hoodie," blue jeans, and with "a bandana around the[] face" kicking in Corn and Benjamin's door. Id. at 136. The neighbor called the police.
Meanwhile, Corn exited the family bedroom to investigate the noise at his door. Corn met an African-American man in the kitchen, and Corn observed that the man was wearing a gray hoodie, blue jeans, a bandana around his face, and blue gloves. Although the man's face was covered, Corn recognized him as Street based on "his voice and his shape and the way" he talked. Id. at 168. In the bedroom, Benjamin also heard and recognized Street's voice. Street demanded Corn's money, and when Corn stated that he did not have any, Street instead grabbed Corn's marijuana off of a kitchen counter. Street then pulled out a .25 caliber handgun and shot Corn in the thigh. Another shot struck the kitchen wall. Street fled before the police arrived.
When the police arrived, Corn and Benjamin were initially reluctant to identify Street. But they did so later on June 11, and officers obtained and executed a warrant to search Street's residence later that day. In executing the warrant, officers seized .25 caliber ammunition, a grey sweatshirt, blue jeans with blue gloves stuffed inside them, and bandanas. The officer also seized firearms, which included a loaded .22 caliber revolver, found inside of a pillow case on Street's bed. Street had lived at that residence "for a few months" and shared the residence with his girlfriend, Iva Fine; Fine's daughter, T.A.F.; and Fine's grandson, J.T.
Officers arrested Street. In the booking room of the police station, while officers were conducting a pat-down of Street, a .25 caliber handgun "fell out of his groin area." Id. at 455. Officers also discovered a small bag of marijuana "in the groin area of Mr. Street." Id. at 457. Later ballistics testing revealed that the shots fired inside Corn and Benjamin's residence were fired from the .25 caliber handgun that had fallen out of Street's "groin area" during his booking. Id. at 455.
Appellant's App. at 52-53. The State also alleged Street to be an habitual offender.
During Street's ensuing jury trial, in addition to evidence showing the above facts, the State played two video recordings to the jury. In one, Fine stated that Street "`just did six years'" and, in the other, another person, Marcus Armstead, stated that "the last few days were the most he'd seen Mr. Street in ten years because Mr. Street had been in jail." Appellant's Br. at 5 (quoting State's Exs. 18 & 19). Street did not object to the admission of those recordings, but, after the jury had viewed them, Street requested an admonishment to the jury. The trial court agreed, stating:
Trial Tr. at 285. Street did not request a mistrial following the admonishment.
In the State's closing argument, the prosecutor discussed how the evidence related to Counts I through V in reverse order as follows:
Tr. at 561-62. The jury found Street guilty as charged.
Following a sentencing hearing, the trial court found numerous aggravating circumstances and no mitigating circumstances. The court then entered its judgment of conviction and imposed its sentence as follows:
Appellant's App. at 183. This appeal ensued.
We first consider Street's contention that several of his convictions violate Indiana's prohibitions against double jeopardy. Questions of double jeopardy implicate fundamental rights and, as such, may be raised for the first time on appeal, or even by this court sua sponte. See Smith v. State, 881 N.E.2d 1040, 1047 (Ind.Ct.App.2008). Whether convictions violate double jeopardy is a pure question of law, which we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind.Ct.App. 2012), trans. denied.
Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy, providing that "[n]o person shall be put in jeopardy twice for the same offense." As our supreme court has explained:
Garrett v. State, 992 N.E.2d 710, 719-20 (Ind.2013) (last alteration original).
Of particular relevance to this appeal is our supreme court's opinion in Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). In Pierce, the defendant broke into the house of his victim. Inside, he raped his victim and demanded money from her. The defendant's assault resulted in bodily injury to the victim. The trial court entered judgment of conviction against the defendant for, among other things, burglary, as a Class A felony, and robbery, as a Class B felony.
In reviewing those two convictions, our supreme court held:
Id. (emphasis added; footnotes omitted).
Likewise, in Campbell, our supreme court held:
Here, Street first argues that his convictions for Counts I and II — burglary, as a Class A felony, and attempted robbery, as a Class A felony, respectively — violate the rule announced in Pierce. The State concedes both that Street's convictions on Count I and Count II violated Street's double jeopardy rights under Pierce and that the proper remedy is to vacate Street's conviction for Count II, attempted robbery as a Class A felony.
However, the State's concession that Count II should be vacated appears to be premised on reinstating Street's conviction for Count III, attempted robbery as a Class B felony, which the trial court had originally "merge[d]" with Count II. See Appellant's App. at 183. The State is partly right; Count III should be reinstated, but not as a Class B felony. At the times relevant to Street's convictions, the base-level offense for robbery was as a Class C felony. I.C. § 35-42-5-1 (2014). That offense was enhanced to a Class B felony if the defendant committed the offense while armed with a deadly weapon or the offense resulted in bodily injury to another person. Id. And it was enhanced
Here, the only difference between Count II and Count III was the State's alternative assertions that the injury to Corn was either serious bodily injury — and therefore the Class A felony alleged under Count II — or bodily injury — and therefore the Class B felony alleged under Count III. That is, the State charged Count III as a lesser-included offense to Count II, and, as such, the trial court was correct to conclude that it could not punish Street under both Count II and Count III. See, e.g., Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002). But Count III is still an enhancement to the base, Class C felony robbery, and the enhancement under Count III is premised on the same bodily injury that formed the enhancement under Count I and elevated the burglary offense to a Class A felony. See I.C. § 35-43-2-1(2). Pierce expressly requires that the Class B felony robbery conviction be reduced in these circumstances to a Class C felony. 761 N.E.2d at 830.
We next consider Street's argument that his conviction under Count IV — battery, as a Class C felony — must be vacated in light of his conviction under Count III. As with the State above, here Street is partly right: his conviction for battery, as a Class C felony, cannot stand, but it cannot stand because the enhancement under Count IV is based on the same facts that resulted in his enhancement under Count I, burglary as a Class A felony. As our supreme court explained in Campbell. "Although the battery information alleged use of a deadly weapon and the burglary information alleged serious bodily injury, the basis for the elevation of both crimes was the same" injury to the victim — namely, Corn being shot by Street's use of the deadly weapon. 622 N.E.2d at 500. Accordingly, as in Campbell, here the Class C felony conviction must be reduced to a Class B misdemeanor. Id.; see I.C. § 35-42-2-1(a).
In sum, we reverse Street's convictions under Counts II, III, and IV. We remand with instructions that the trial court: vacate Street's conviction under Count II; reinstate Street's conviction under Count III for robbery, as a Class C felony; and reduce Street's conviction under Count IV to battery, as a Class B misdemeanor. On remand, the court shall resentence Street accordingly.
We next consider Street's argument that his convictions must be reversed because the trial court committed fundamental error when it permitted the jury to hear the video recordings of Fine and Armstead, who both referenced Street's prior incarceration. Because Street did not object to the admission of this evidence, "we will only reverse the trial court if the trial court committed error that was ... a substantial, blatant violation of due process that must be so prejudicial to the rights of a defendant as to make a fair trial impossible." Rosales v. State, 23 N.E.3d 8, 11 (Ind.2015) (quotations omitted).
There is no question that it was error for the jury to hear of Street's irrelevant prior convictions. As the Indiana Supreme Court has stated: "evidence of a prior conviction is as prejudicial as evidence can get...." Thompson v. State, 690 N.E.2d 224, 235 (Ind.1997). Seizing on this, Street asserts that "we cannot say the jury's decision was not based on knowing Mr. Street had previously been incarcerated for committing a criminal offense." Appellant's Br. at 6 (emphasis added).
But we can say exactly that. While Street did not object to the admission of the erroneous statements, he did request an admonishment that the jury disregard them, and the trial court admonished
Moreover, the erroneously admitted statements were isolated, passing comments in a voluminous record. Cf. Rosales, 23 N.E.3d at 16 (holding that, but for the State's "repeated insistence" on an erroneous statement of the mens rea necessary to convict, "the error in this case likely would not rise to the level of fundamental"). Juxtaposed against those passing comments is the thorough and descriptive testimony of Corn, Benjamin, and numerous officers and other witnesses. Those witnesses, among other things, personally identified Street as the invader or as the possessor of the handgun or determined that the handgun found on Street's person had been used in the home invasion. In light of that significant and incriminating testimony, we cannot say that the error here was so substantial and blatant as to have made a fair trial impossible. Therefore, no fundamental error occurred, and we affirm Street's convictions.
Street also asserts that the State failed to present sufficient evidence to support his conviction for neglect of a dependent, as a Class D felony. Our standard for reviewing the sufficiency of the evidence needed to support a criminal conviction is as follows:
Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind.2015).
Pursuant to Indiana Code Section 35-46-1-4(a), to show that Street had committed neglect of a dependent, as a Class D felony, the State was required to show beyond a reasonable doubt that Street, "having the care of a dependent, whether assumed voluntarily or because of a legal obligation," knowingly or intentionally placed the dependent in a situation that endangered the dependent's life or health. As alleged here, the State needed to show that Street had care of J.T. and knowingly or intentionally placed J.T. in a situation that endangered J.T. Street's only argument on appeal is that the State did not show that Street voluntarily assumed care of J.T.
The State presented sufficient evidence to support Street's conviction. The State showed that Street allowed J.T. to sleep in Street's bed. And, while J.T. slept in that bed, Street had a loaded firearm inside a pillow case on the bed. A reasonable trier of fact could conclude that, during that time, Street had voluntarily assumed care of J.T. while also placing J.T. in an endangering situation.
Finally, we address Street's contention that the trial court erred when it ordered Street's habitual offender enhancement to be an independent, thirty-year sentence consecutive to the sentences imposed for Street's offenses. The State concedes that the trial court erred in this respect. "A habitual offender finding does not constitute a separate crime nor does it result in a separate sentence[;] rather[,] it results in a sentence enhancement imposed upon the conviction of a subsequent felony." Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.2001). Thus, we remand with instructions that the court properly impose Street's habitual offender conviction as a sentence enhancement.
In sum, we reverse Street's convictions under Counts II, III, and IV, and we reverse the trial court's imposition of a freestanding sentence for the habitual offender enhancement. We remand with instructions that the trial court: vacate Street's conviction under Count II; reinstate Street's conviction under Count III for robbery, as a Class C felony; reduce Street's conviction under Count IV to battery, as a Class B misdemeanor; and resentence Street, including properly applying Street's habitual offender enhancement against him. On all other issues, we affirm.
Affirmed in part, reversed in part, and remanded with instructions.
BAKER, J., and FRIEDLANDER, J., concur.
