Alexander v. State

• Decision Date: 30 May 2002
• Docket Number: No. 49A02-0105-CR-324.,49A02-0105-CR-324.
• Citation: 768 N.E.2d 971
• Parties: Rasoull ALEXANDER, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

768 N.E.2d 971

Rasoull ALEXANDER, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-0105-CR-324.

Court of Appeals of Indiana.

May 30, 2002.

David Becsey, Zeigler Cohen & Koch, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Joseph A. Samreta, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Following a bench trial, Rasoull Alexander was convicted of Unlawful Possession of a Firearm by a Serious Violent Felon,¹ a Class B felony, and Carrying a Handgun Without a License,² a Class A misdemeanor. Upon appeal, Alexander presents one issue for our review: whether his convictions violate the Double Jeopardy Clause of the Indiana Constitution.

We affirm in part and reverse in part.

At approximately 9:00 p.m. on December 31, 1999, Indianapolis police officers responded to a call of shots being fired. The individual firing the shots was described as a black male wearing a black hat. Upon arriving at the location identified in the call, the officers observed an individual matching the description getting into a car parked along the side of the street. The officers stopped this individual before he got into the vehicle, and as the officers approached him, they observed two individuals sitting in the front seat of the car, one of whom was Alexander, who was sitting on the passenger side. The officers also observed two handguns, later identified as a .44 caliber revolver and a 9mm handgun, lying on the front seat between Alexander and the other individual. Alexander was unable to produce a permit for either of the guns.

Alexander was charged with Count I, unlawful possession of a firearm by a serious violent felon, Count II, possession of cocaine and a firearm, Count III, possession of cocaine, and Count IV, carrying a handgun without a license.³ On March 21, 2001, Alexander was tried by bench trial. At the conclusion of the evidence, the trial court found Alexander guilty of unlawful possession of a firearm by a serious violent felon as a Class B felony and of carrying a handgun without a license, as a Class A misdemeanor. The trial court sentenced Alexander to ten years imprisonment on the former and one year on the latter conviction, the sentences to run concurrently.

Upon appeal, Alexander argues that his conviction and sentence for carrying a handgun without a license should be vacated because they violate double jeopardy considerations. Specifically, Alexander maintains that there is a reasonable possibility that the trial court used the same evidentiary facts to establish that he carried a handgun without a license and to establish that he unlawfully possessed a firearm as a serious violent felon.

Indiana's Double Jeopardy Clause is embodied in Article 1, Section 14 of the Indiana Constitution, which provides, "No person shall be put in jeopardy twice for the same offense." Our Supreme Court has concluded that this provision "was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression." Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). In addition to the traditional notion that double jeopardy bars subsequent prosecution, our Supreme Court has construed Indiana's Double Jeopardy Clause as also prohibiting multiple punishments. Id.

In Richardson, our Supreme Court established a two-part test for analyzing double jeopardy claims. Specifically:

"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.

The statutory elements test and the actual evidence tests are separate considerations under the double jeopardy analysis. Id. at 53. Thus, even where the statutory elements define the offense as capable of being committed by disparate acts, the convictions may nonetheless constitute a violation of double jeopardy "if the actual evidence presented at trial demonstrates that each offense was not established by separate and distinct facts." Castillo v. State, 734 N.E.2d 299, 303 (Ind.Ct.App. 2000), reh'g denied, trans. granted, summarily aff'd, 741 N.E.2d 1196 (Ind.2001). See also Richardson, 717 N.E.2d at 53.

When a defendant challenges his convictions under the actual evidence prong of the Richardson analysis, the defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish one offense may also have been used to establish a second challenged offense. 717 N.E.2d at 53.⁴ "The Richardson actual evidence test was carefully and deliberately crafted to provide a general formulation for the resolution of all actual evidence test claims." Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002).

Nonetheless, in Spivey, the Court found it necessary to clarify the Richardson actual evidence test, stating that the actual evidence test "is not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense." 761 N.E.2d at 833 (emphasis in original). The Court further stated that there is no double jeopardy violation 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. Id. In other words, the court indicated that there will be a double jeopardy violation only where the evidentiary facts establishing all of the essential elements of one offense also establish all of the essential elements of a second challenged offense.

Notwithstanding the manner in which Spivey seems to phrase the Richardson actual evidence test, in application our Supreme Court has consistently overturned convictions upon double jeopardy grounds where the evidentiary facts establishing an essential element of one offense also establish all of the essential elements of the second challenged offense. Indeed, this is the import of the holding in Richardson itself.

In Richardson, the evidence presented at trial established that the defendant, along with two other individuals, hit the victim from behind with a beer bottle and knocked him to the ground. The three men then repeatedly kicked and beat him. While two of the men held the victim down, the third individual took the victim's billfold from his pocket. Before the three men left, they pushed the victim's body over the side of a bridge. The Court considered this evidence and concluded that there was "a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of robbery were also used to establish the essential elements of the class A misdemeanor battery." Richardson, 717 N.E.2d at 54.

We begin by noting that in Richardson, the evidentiary facts establishing all of the essential elements of the aggravated battery conviction could not have established all of the essential elements of robbery, in that the beating itself would not have established the taking element of the robbery conviction. However, where the reverse is considered, as did the Richardson court, looking first at the evidentiary facts establishing all of the essential elements of robbery and then at the evidentiary facts establishing all of the essential elements of battery, the Court held that there was a double jeopardy violation.

Be that as it may, upon closer review, implicit in the Richardson Court's holding is that the double jeopardy violation did not result from the facts establishing all of the essential elements of robbery, but only those facts which established the serious bodily injury element of the Class A robbery charge and also all of the essential elements of the battery charge. In Richardson, the Court indicated that had actual evidence been presented to prove that the post-robbery conduct of pushing the victim off of the bridge resulted in serious bodily injury, then such may have constituted a factually separate battery justifying a separate conviction. From this, we infer that the Court was not concerned with the facts establishing all of the essential elements of robbery, but rather those evidentiary facts which established only one of the essential elements of the robbery conviction, that is, the serious bodily injury enhancement. Thus, while at a more general level it could be said that the facts establishing all of the essential elements of the robbery conviction also establish all of the essential elements of the battery conviction, such is an unclear statement given the Court's own analysis. In Richardson, it was but one evidentiary fact, i.e. the beating, which established an essential element of the robbery conviction and all of the essential elements of the aggravated battery conviction which constituted double jeopardy.

Similarly, in Spears v. State, 735 N.E.2d 1161 (Ind.2000),reh'g denied, the defendant was charged with murder and robbery, enhanced to a Class A felony because it resulted in serious bodily injury, which was alleged as the death which formed the basis for the murder conviction. In addressing the double jeopardy implications of the two convictions using the Richardson actual evidence test, the Court stated, "there is at least a reasonable possibility— if not a near certainty—that the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing an essential element of robbery as a Class A felony." Id. at 1165 (emphasis supplied). In other words, the evidence establishing the serious bodily injury element of the robbery conviction also established all of the essential elements of the murder conviction. The Court's language again...