Attorneys for Appellee
Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
) Ct. of Appeals No.
February 8, 2002
Following a jury trial, Defendant was convicted of Attempted Murder,
The trial court entered judgment on the attempted murder and burglary verdicts
and imposed an aggregate sentence of 70 years. In a memorandum decision,
the Court of Appeals affirmed the convictions but vacated the sentence for burglary
on grounds that imposing sentences under these circumstances for both attempted murder and
burglary violated Defendant's right against double jeopardy as provided by Article I, §
14, of the Indiana Constitution. Swaynie v. State, 740 N.E.2d 594 (Ind.
Ct. App. 2000) (table). We granted the State's petition to transfer.
Swaynie v. State, 753 N.E.2d 10 (Ind. 2001) (table).
As to Defendant's double jeopardy claim, he contends that his convictions and se
for attempted murder and burglary violate Indiana's double jeopardy clause. The double
jeopardy rule prohibits multiple punishments for the same offense. In Richardson v.
State, 717 N.E.2d 32 (Ind. 1999), this Court developed a two-part test for
determining whether two convictions are permissible under Indiana's double jeopardy clause. Id.
at 49. A double jeopardy violation occurs when the State ...
proceed[s] against a person twice for the same criminal transgression. Hampton v.
State, 719 N.E.2d 803, 809 (Ind. 1999) (quoting Richardson, 717 N.E.2d at 49).
Under Richardson, two or more offenses are the same offense ... 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. Richardson, 717 N.E.2d at
49. When we look to the actual evidence presented at trial, we
will reverse one of the 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." Id. at 53.
In this case, the jury was instructed that in order to convict Defendant of burglary the State was required to prove beyond a reasonable doubt that Defendant (1) knowingly or i ntentionally, (2) broke into and entered, (3) the victims' home, (4) with the intent to commit a felony, to wit, murder the woman's husband. The Court of Appeals concluded that Defendant's double jeopardy rights were violated because there was a reasonable possibility that the evidence that Defendant strangled the husband was used by the jury to establish both the essential elements of the attempted murder charge and the intent-to-commit-murder element of the burglary charge.
We hold that there is no Indiana double jeopardy violation in these circumstances.
The criminal transgression addressed by the proscription on burglary is the breaking
into and entering of a building or structure of another person with the
intent to commit a felony. Thus, the criminal transgression of burglary is
committed by a person intending to commit an underlying felony at the moment
the building or structure is broken into and entered. The person's culpability
is established at the point of entry regardless of whether the underlying intended
felony is ever completed. Indeed, a person who breaks and enters without
ntent to commit an underlying felony is not guilty of burglary.
Because burglary and the underlying intended felony (if committed) are separate criminal transgressions,
Richardson does not prohibit conviction and sentencing for both.
At least two of our post- Richardson decisions illustrate this point. In Johnson v. State, where the same evidence that supported Johnson's murder conviction was also used to elevate Johnson's burglary conviction to a Class A felony, we held that the Class A enhancement was invalid but that this did not entitle Johnson to escape punishment for the burglary of which he was convicted. 749 N.E.2d 1103, 1108 (Ind. 2001). See footnote A similar point is made in Mickens v. State where Mickens was convicted of both murder and carrying a handgun without a license. Because he used to handgun to commit the murder, he argued that Richardson's actual evidence test prohibited conviction and punishment on both counts. We rejected his claim that he was being punished for the same criminal transgression, noting [c]arrying the gun along the street was one crime and using it was another. 742 N.E.2d 927, 931 (Ind. 2001).
Here, breaking into and entering the victims' home with intent to kill the
husband was one criminal transgression and attempting to kill him was another just
Johnson and Mickens. Defendant was not entitled to relief under