ATTORNEY FOR APPELLANT
Susan D. Rayl
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
SUPREME COURT OF INDIANA
RONALD PIERCE, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0011-CR-710
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9907-CF-126805
ON DIRECT APPEAL
January 29, 2002
Ronald Pierce was convicted of burglary, rape, criminal deviate conduct, robbery, confinement, and
being a habitual offender. In this direct appeal, he contends that:
(1) the trial court abused its discretion in admitting his confession; (2) the
trial court abused its discretion in admitting testimony that Pierce masturbated while he
confessed; and (3) Pierces convictions for burglary and robbery violate the Indiana Double
Jeopardy Clause. We remand to the trial court with instructions to reduce
the robbery conviction to a Class C felony and otherwise affirm the judgment
of the trial court.
Factual and Procedural Background
On the morning of July 13, 1999, the victim was writing a note
to the UPS man with her door open when a suspicious man approached
her home. She attempted to shut the door, but the man, Pierce,
had already entered her home. The victim screamed at Pierce to leave
the house and attempted to flee. He chased her, the two scuffled,
and Pierce ultimately forcibly inserted his fingers in the victims vagina. Pierce
then demanded money and the victim gave him twelve dollars, which was all
the money she had in her purse. Pierce forcibly raped the victim
and then requested more money. After the victim sent Pierce upstairs, she
attempted to call 911. Pierce returned, took the phone, then became nervous
At the hospital, an examination revealed a variety of cuts and scrapes, bruises
on the victims shoulders, forearms, and lips, and tears in her vaginal area.
Pierce was arrested in an unrelated case
and, while being questioned in
that case, confessed to this crime. He was convicted of burglary, rape,
criminal deviate conduct, robbery, and confinement, and found to be a habitual offender.
Pierce was sentenced to fifty years for burglary, enhanced by thirty years
for the habitual offender enhancement, to be served consecutively with twenty years for
robbery. Sentences on the remainder of the convictions were to be served
I. Pierces Confession
Pierce first challenges the admission of his confession, claiming that police deception rendered
it involuntary. Specifically, he contends that a police officer, Detective Frazier, lied
to him about a preliminary DNA match in the other investigation and this
caused him to confess to both this crime and the other crime.
The decision to admit Pierces statement is a matter of discretion of the
trial court after considering the totality of the circumstances.
Ellis v. State,
707 N.E.2d 797, 801 (Ind. 1999). In reviewing a trial courts ruling
as to the voluntariness of a confession, we examine the record for substantial,
probative evidence of voluntariness; we do not reweigh the evidence. Horan v.
State, 682 N.E.2d 502, 510 (Ind. 1997).
Pierces taped statement was given after an officer informed Pierce of his Miranda
rights and Pierce signed a waiver form. Pierces taped interview lasted two
and one-half hours. The trial court ruled:
[B]ased on the record that I have in front of me, and taking
the statements as offers to prove, I find that this court in a
different case has already ruled upon all of these issues after a thorough
hearing, and the fact that this is an effort to suppress a statement
that the alleged falsehoods did not actually pertain to, I think the original
ruling of this court was accurate, and I am again going to deny
the motion to suppress the Defendants statements to the investigators during his custodial
The determination that Pierces statement should be admitted is supported by substantial evidence
and is consistent with precedent.
Pierce makes substantially the same argument in this appeal as he made in
his appeal of the earlier case. His claim here is somewhat weaker
because the police deceptionfalse claim of DNA identificationis related to the other crimes,
not these. For that reason, as well as those given in Pierces
see Pierce v. State, __ N.E.2d __, __ (Ind. 2002), we
find no reversible error in the admission of his confession.
II. Evidence of Pierces Behavior While Giving a Statement
Pierce filed a motion in limine to exclude Detective Fraziers testimony that Pierce
masturbated while giving his statements to police. The trial court denied the
motion, stating that the evidence does have some tendency to impact upon the
jurys consideration of his intent in entering that residence, the fact that in
a discussion of the incident, he was engaged in a sexual act .
. . . Pierce claims that this testimony violated Indiana Rules of
Evidence 403 and 404(b).
Evidence Rule 404(b) provides, Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident . . . . In assessing admissibility of 404(b) evidence
the court must (1) determine that the evidence of other crimes, wrongs, or
acts is relevant to a matter at issue other than the defendants propensity
to commit the charged act and (2) balance the probative value of the
evidence against its prejudicial effect pursuant to Rule 403. Hicks v. State,
690 N.E.2d 215, 221 (Ind. 1997). The relevance and balancing issues are
reviewed for an abuse of discretion. Thompson v. State, 690 N.E.2d 224,
233 (Ind. 1997).
Fraziers testimony fails both prongs of the test. First, it does not
fall under an exception to Rule 404(b). Unlike the States claim, evidence
that Pierce masturbated during his confession does not establish that he intended to
rape the victim when he broke into her home. There appears to
be no reason to admit this evidence other than to establish that Pierce
has a propensity for bizarre behavior. We also agree with Pierce that
the testimony was substantially more prejudicial than probative.
Accordingly, the trial court
abused its discretion in admitting this evidence under a 404(b) analysis.
However, Pierces conduct while confessing is certainly relevant to an assessment of the
confessions reliability and voluntariness. The trial court did not address this issue.
We do not need to determine whether those considerations are sufficient to
admit this testimony because [e]rrors in the admission or exclusion of evidence are
to be disregarded as harmless error unless they affect the substantial rights of
Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995); see
also Ind. Trial Rule 61. In this case, there is significant, uncontested
evidence of Pierces guilt, including the victims testimony that Pierce broke into her
house, engaged in sexual deviate conduct, raped her, and robbed her. Pierce
confessed to all of this. In light of this evidence, we cannot
conclude that the erroneous admission of Fraziers testimony affected Pierces substantial rights.
It is not grounds for reversal.
III. Double Jeopardy
Pierce finally contends that his multiple convictions violate the Indiana Double Jeopardy Clause.
Ind. Const. art. I, § 14. Specifically, Pierce argues that
he cannot be convicted of both burglary as a Class A felony and
robbery as a Class B felony when both crimes are enhanced by the
same bodily injury.
The Indiana Double Jeopardy Clause 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 v.
State, 717 N.E.2d 32, 53 (Ind. 1999); accord Wise v. State, 719 N.E.2d
1192, 1201 (Ind. 1999).
To convict Pierce of burglary as a Class A felony, the State must
show that: (1) Pierce broke and entered (2) the victims house (3)
with the intent to commit a felony therein (4) resulting in either bodily
injury or serious bodily injury. Ind. Code § 35-43-2-1 (1998). To
convict Pierce for robbery as a Class B felony, the State must show
that Pierce: (1) knowingly or intentionally (2) took money (3) from the presence
of the victim (4) by use of force or threat of force and
(5) while armed with a deadly weapon or resulting in bodily injury to
Each of these crimes includes evidence or facts not essential to the other.
The taking of money supports the robbery and the breaking and entering
supports the burglary, but neither is an element of the other crime.
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. See Richardson, 717
N.E.2d at 55 (Sullivan, J., concurring); id. at 57 (Boehm, J., concurring).
Among these is the doctrine that where a burglary conviction is elevated to
a Class A felony based on the same bodily injury that forms the
basis of a Class B robbery conviction, the two cannot stand. Cf.
Campbell v. State, 622 N.E.2d 495, 500 (Ind. 1993) (battery and burglary)
v. State, 549 N.E.2d 1024, 1025 (Ind. 1990) (attempted rape and robbery); McDonald
v. State, 542 N.E.2d 552, 555-56 (Ind. 1989) (two robberies). Accordingly, the
robbery conviction is reduced to a C felony.
This case is remanded to the trial court with instructions to reduce the
robbery conviction to a Class C felony and impose a sentence of eight
years on that count to be served consecutively with the previously imposed sentence
of eighty years.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
The appeal in that case is handed down concurrently with this opinion.
Pierce v. State, __ N.E.2d __ (Ind. 2002). The two cases
were tried independently and each has a separate record. It is coincidence
that the two reached this Court within a few weeks of each other.
The State argues this testimony was certainly not more prejudicial than [the
victims] testimony that Pierce broke into her house, performed sexual deviate conduct on
her, robbed her, and raped her. Although this may be true, the
State ignores the fact that this other evidence is highly relevant, unlike the
testimony in question, and clearly satisfies the 403 test.
The State concedes this argument.
Although Campbell was explicitly said to be superseded in the Courts opinion
in Richardson, 717 N.E.2d at 49 n.36, only Justice Dickson and the Chief
Justice appear to have taken that view. Justice Sullivan concurred in Richardson,
but authored a separate opinion that cited Campbell, apparently with approval. 717
N.E.2d at 56. The other two Justices did not comment on Campbell,
but cited with approval other cases following the same doctrine.
The trial court imposed the maximum sentence of 100 years
for burglary enhanced by thirty years for the habitual offender enhancement to be
served consecutively with twenty years for robbery), but as explained in Part III,
the Class B felony robbery conviction must be reduced to a Class C
felony. There is no need to remand for resentencing where it is
sufficiently clear that the trial court would impose the maximum sentence for the
Class C felony and order it served consecutively. Cutter v. State, 725
N.E.2d 401, 410 n.4 (Ind. 2000).