Street v. State
| Citation | 30 N.E.3d 41 |
| Decision Date | 22 April 2015 |
| Docket Number | No. 21A04–1410–CR–458.,21A04–1410–CR–458. |
| Parties | Bryson Tyrone STREET, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Court of Appeals of Indiana |
Patricia Caress McMath, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] 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.
Street raises five issues for our review, which we consolidate and restate as the following four issues:
[2] We affirm in part, reverse in part, and remand with instructions.
[3] 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.
[4] 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.
[5] 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.
[6] 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.1 Street, Fine, and J.T. all slept in the same bed. Appellant's Br. at 10. T.A.F. “look[ed] to [Street] as a father figure.” Trial Tr. at 428.
[7] 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.
[8] On July 15, 2014, the State filed its amended charging information against Street, in which the State alleged that Street had committed the following offenses:
Appellant's App. at 52–53. The State also alleged Street to be an habitual offender.
[9] 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:
I am admonishing you[,] that means I'm telling you, that you are not to consider and to regard as if you have never heard any remarks of any of those people with regard to Mr. Street and whether or not he has ever had a prior conviction of any kind or has ever been in prison. If you heard anything like that, it's as if you never heard. You are to completely disregard it.
Trial Tr. at 285. Street did not request a mistrial following the admonishment.
[10] In the State's closing argument, the prosecutor discussed how the evidence related to Counts I through V in reverse order as follows:
Criminal recklessness [Count V] ... [is] based upon the facts that [Street] fired the gun where [Corn, Benjamin, and J.T. lived]. That was an act ... creating a substantial risk of injury.... That is (inaudible) by a deadly weapon ... Count IV [Count IV alleged Class C felony battery by a deadly weapon]. Why did he come here? Money (inaudible). [Corn] admitted he sold marijuana.... [Street] went there[,] he came in and ... said where's it at, where's it at.... [Corn] ... said that [Street had] said where's the money, where's the money but remember (inaudible) because you know I have a bag of weed (inaudible). But the money wasn't right there on the table in the kitchen. So [Street] comes in, kicks through the door ... and then when he demanded money and doesn't get [it] he ... fires (inaudible) and grabs something he does see on the table of value. And ... with a .25 auto resulting in bodily injury, the gunshot wound
. (Inaudible) all the evidence you'll find that the State has met the burden of proof on each and every element of the crimes charged against [Street] and return a verdict of guilty on all counts.
Tr. at 561–62. The jury found Street guilty as charged.
[11] 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:
The Court hereby commits the Defendant to the Indiana Department of Correction[ ] for: Count I—40 years concurrent with 40 years on Count II. The Court merges the convictions on Counts II and III; consecutive to [sic] 8 years on Count IV; concurrent with 3 years on Count V; concurrent with 3 years on Count VI; concurrent with 8 years on Count VII; concurrent with 1 year on Count VIII; to be served CONSECUTIVE to 30 years on being a Habitual Offender for a total of 78 years....
Appellant's App. at 183. This appeal ensued.
[12] 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.
[13] 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:
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