Segovia v. State, 56A03-9503-CR-100

• Docket Nº: No. 56A03-9503-CR-100
• Citation: 666 N.E.2d 105
• Case Date: May 31, 1996
• Court: Court of Appeals of Indiana

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666 N.E.2d 105 Abraham SEGOVIA, Jr., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 56A03-9503-CR-100. Court of Appeals of Indiana. May 31, 1996.

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Stephen Bower, Cohen & Thiros, Merrillville, for appellant.

Pamela Carter, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, for appellee.

OPINION

STATON, Judge.

Abraham Segovia, Jr. ("Segovia") appeals his conviction for conspiracy to commit arson, a class B felony. ¹ He presents several issues for our review, one of which is dispositive: Whether his prosecution for conspiracy to commit arson was barred by his acquittal of felony murder in a prior proceeding.

We reverse.

The facts most favorable to the verdict indicate that Segovia was charged with felony murder ² after a fire in a trailer park. A child, Lesley Flynn ("Flynn"), died during the fire. The State later filed conspiracy charges which alleged that Segovia had conspired with others to commit arson. The overt act alleged in furtherance of the conspiracy was the arson. The two criminal proceedings were consolidated and proceeded to trial. At trial, the jury acquitted Segovia of the felony murder charge and was unable to reach a verdict on the conspiracy charge. The State then refiled the conspiracy charge. Segovia moved to dismiss the charge on the basis that it constituted double jeopardy, but the court denied his motion. The second conspiracy case proceeded to trial and Segovia was convicted.

Segovia argues that the second trial constituted double jeopardy because his acquittal on the felony murder charge barred any further proceedings on the conspiracy charge. The Double Jeopardy Clause ³ embodies

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three protections: "a second prosecution for the same offense after an acquittal; a second prosecution for the same offense after a conviction; and multiple punishments for the same offense." Buie v. State, 633 N.E.2d 250, 259-60 (Ind.1994), reh. denied (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969)). The question is whether Segovia's second trial on conspiracy to commit arson would constitute a second prosecution after acquittal on the same offense.

In order to determine whether felony murder and conspiracy to commit arson are the same offense for double jeopardy purposes, we first apply the "Blockburger test."

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (citation omitted). Ordinarily, prosecution for both conspiracy to commit a felony and the underlying felony does not constitute double jeopardy. Buie, supra, at 260. However, if the State chooses to charge the substantive offense as the overt act, the offenses become the same offense for double jeopardy purposes because the State is not required to prove any additional facts beyond the conspiracy charge to prove the substantive offense. Neal v. State, 659 N.E.2d 122, 125 (Ind.1995); Buie, supra, at 261.

In the present case, Segovia was charged with felony murder and conspiracy to commit arson. In order to obtain a conviction on the felony murder charge, the State had to prove that (1) Flynn died and (2) Segovia committed or attempted to commit arson. IC 35-42-1-1(2). In order to prove the conspiracy charge, the State had to prove that (1) Segovia agreed with Chris Scott to commit arson, (3) intended to commit arson, (2) and that the arson (the overt act) was committed. IC 35-41-5-2. A review of these charges shows that they are not the same offense for double jeopardy purposes because although both charge the arson as an element, each contains an element not included in the other. To prove felony murder, the State had to prove that Flynn died, but not that there was an agreement to commit the arson. On the other hand, in order to obtain a conviction on the conspiracy charge the State had to prove that there was an agreement to commit the arson, but not that Flynn died. Thus, as charged, felony murder...