Davis v. State
| Decision Date | 25 June 2002 |
| Docket Number | No. 34S00-0009-CR-527.,34S00-0009-CR-527. |
| Parties | Michael L. DAVIS, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff). |
| Court | Indiana Supreme Court |
Charles H. Scruggs, Kokomo, Indiana, Teresa D. Harper, Bloomington, Indiana, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. SHEPARD, Chief Justice.
Michael L. Davis appeals his convictions for attempted murder, aggravated battery, and burglary. He presents the following issues:
I. Whether the State presented sufficient evidence to support the burglary conviction;
II. Whether Davis' convictions for aggravated battery, burglary, and attempted murder violate Indiana's Double Jeopardy Clause;
III. Whether Davis is entitled to a mistrial because two jurors saw him in restraints and one juror overheard a rumor that Davis' family had called in a bomb threat; and
IV. Whether the trial court erred in declining to let Davis withdraw his plea of guilty to the habitual offender charge.
Facts & Procedural History
The evidence at trial revealed that on January 17, 2000, Davis and his accomplice William Jenks plotted to rob David Bentzler, Sr. When the two arrived at Bentzler's home, Davis tried to open the lock with a master key. Bentzler was aware of their arrival and had armed himself with a gun. Intending to scare Davis and Jenks away, Bentzler opened the door slightly, but Davis immediately forced the door open, pinning Bentzler to the wall. Davis and Bentzler struggled for control of the gun. Forced back farther into the room, Bentzler lost hold of his weapon, and Davis struck him repeatedly over the head with the gun.
Davis then began to strangle Bentzler, cutting off his airway. Davis ordered Jenks to get a knife from the kitchen. Jenks brought Davis the knife, and Davis stabbed Bentzler in the neck. Fortunately, the knife blade broke. Bentzler attempted to escape, but Davis again grappled with Bentzler and choked him. Davis asked Jenks to get another knife, but Jenks convinced him that the police were coming. The two men left the home and escaped in Davis' truck.
Bentzler suffered several injuries during the attack, including numerous lacerations to his head as a result of blows from the gun and a serious knife cut to his neck. He also suffered internal bruising to his throat, cuts to his hands, and permanent scarring.
A jury found Davis guilty of all charges. Davis admitted an habitual offender charge. The court sentenced him to fifty years for attempted murder, adding thirty years for his habitual offender status, and a consecutive sentence of thirty years for burglary. It imposed a concurrent twenty years for aggravated battery.
Davis asserts that because Bentzler opened the door, there was insufficient evidence to support the breaking element of burglary. The State responds by arguing that a breaking occurred when Davis forced the door open.
Burglary occurs when a person "breaks and enters the building or structure of another person, with intent to commit a felony in it." Ind.Code Ann. § 35-43-2-1 (West 1998). Using even the slightest force to gain unauthorized entry satisfies the breaking element of the crime. Trice v. State, 490 N.E.2d 757 (Ind.1986). For example, opening an unlocked door or pushing a door that is slightly ajar constitutes a breaking. Utley v. State, 589 N.E.2d 232 (Ind.1992), cert. denied, 506 U.S. 1058, 113 S.Ct. 991, 122 L.Ed.2d 142 (1993).
The State supported Davis' burglary charge with the testimony of both Bentzler, the burglary victim, and Jenks, Davis' accomplice. Bentzler testified:
Davis next claims that his convictions violate Indiana's Double Jeopardy Clause. Davis contends that his convictions for attempted murder, aggravated battery and burglary as a class A felony arise from the same factual evidence: the attack with a knife. He requests that the aggravated battery conviction be vacated and the burglary conviction be reduced to a class C felony.1
Article 1, section 14 provides that "[n]o person shall be put in jeopardy twice for the same offense." Double jeopardy analysis involves the dual inquiries of the "statutory elements test" and the "actual evidence test," as generally described in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Davis does not argue the statutory elements test, so we therefore examine the actual evidence used in this case.
The actual evidence test prohibits multiple convictions if there is "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 the essential elements of a second challenged offense." Richardson, 717 N.E.2d at 53. We have elaborated on this test in recent opinions.
In Spivey v. State, we clarified that the actual evidence test "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." 761 N.E.2d 831, 833 (Ind.2002) (emphasis added).
The evidence presented at trial established that Davis forced his way into Bentzler's home and struck him several times over the head. While choking him, Davis then cut Bentzler with a knife. After the knife blade broke, Bentzler attempted an escape, but Davis again struck and choked him.
The court directed the jury's application of the evidence on attempted murder and aggravated battery, drawing attention to specific evidentiary facts.2 The attempted murder instructions read:
To convict the defendant of Attempted Murder as charged in Count I, the State must have proved [sic] each of the following elements beyond a reasonable doubt:
The defendant:
1. while acting with the specific intent to kill David Bentzler, Sr.;
2. did cut David Bentzler, Sr.'s throat with a knife;
3. which was conduct constituting a substantial step toward the commission of the intended crime of murder.
(R. at 125.)
(R. at 130.)
Based upon our review of the evidence, charging information and jury instructions, the conviction for aggravated battery arose from the same evidence that gave rise to the conviction for attempted murder. Therefore, a reasonable possibility exists that the jury used the evidence proving the elements of attempted murder to also establish the elements of aggravated battery. Because both convictions cannot stand under the Indiana Double Jeopardy Clause, we vacate the conviction for aggravated battery. See also Spry v. State, 720 N.E.2d 1167, 1170 (Ind.Ct.App.1999),
transfer denied.
On the other hand, the same analysis fails regarding Davis' convictions for burglary as a class A felony and attempted murder. Although each charge utilizes the same factual event, Davis' stabbing of Bentzler, a burglary conviction requires additional evidentiary facts establishing the essential elements of (1) breaking and entering (2) the building or structure of another (3) with the intent to commit a felony in it. Per our decision in Spivey, we find no double jeopardy violation. See also Swaynie v. State, 762 N.E.2d 112, 115 (Ind.2002)
.
Nevertheless, "we have 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). Among these is the doctrine that where a single act forms the basis of both a class A felony burglary conviction and also the act element of an attempted murder conviction, the two cannot stand. King v. State, 517 N.E.2d 383, 385 (Ind.1988); Bevill v. State, 472 N.E.2d 1247, 1254 (Ind.1985). Accordingly, the burglary conviction as a class A felony must be reduced.
Davis seeks reduction of his conviction to a class C felony.3 In response, the State concedes that Davis' conviction for burglary as a class A felony is error, but urges us to only reduce the conviction to a class B felony.
In Johnson v. State, 749 N.E.2d 1103 (Ind.2001), we recently confronted this same issue. In that case, the defendant was convicted of murder and burglary as a class A felony, and we found that the same evidence was erroneously used to support both convictions. Id. Because the evidence presented at trial proved that the defendant broke and entered the victim's dwelling, we reduced the conviction to a class B felony. Id.; see also Curry v. State, 740 N.E.2d 162, 165-67 (Ind.Ct.App. 2000)
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