FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

PAUL T. FULKERSON    KAREN M. FREEMAN-WILSON
Skiles Hansen Cook & Detrude    Attorney General of Indiana
Indianapolis, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana

ELTONYO L. OWENS,       )
                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 49A02-0010-CR-655
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

                         

The conduct prohibited in a battery is the rude, insolent, or angry touching, and this is the conduct that must be done knowingly or intentionally by the actor. Markley v. State, 421 N.E.2d 20, 21 (Ind. Ct. App. 1981). Moreover, “bodily injury to a law enforcement officer” is an element of the battery offense and it must be proven beyond a reasonable doubt before there can be a battery conviction resulting in injury to a law enforcement officer. See id.
In Markley, we noted that “prohibited conduct” and “element” within Ind. Code § 35-41-2-2(d) are not synonymous and if the legislature had intended culpability to apply to every material element, the phrase “of the prohibited conduct” would be superfluous. Markley, 421 N.E.2d at 21. We agree and hold that the element of “bodily injury to a law enforcement officer” is an aggravating circumstance, which, if proven beyond a reasonable doubt, increases the penalty for the offense committed without proof of any culpability separate from the culpability required for the conduct elements of the offense. See id. Therefore, the legislature determined that the aggravating circumstance of battery resulting in bodily injury to a law enforcement officer was sufficient to increase the gravity of a battery offense because of the increased threat of injury to law enforcement officers. Moreover, this reasoning, coupled with the fact that “results in bodily injury to a law enforcement officer” is just that, a result, rather than prohibited conduct, leads us to the conclusion that Ind. Code § 35-41-2-2(d) does not apply to the “results in bodily injury to a law enforcement officer” element of a Class D felony battery.
    Thus, the State was not required to prove beyond a reasonable doubt that Owens knew that Officer Hamner was a law enforcement officer when Owens struck him in the face. Moreover, the evidence is sufficient to convict Owens for battery of law enforcement officer as a Class D felony.

Id. at 50.
    Here, the guiding statute for attempted robbery and battery each contain one element that the other does not. Attempted robbery requires proof that Owens engaged in conduct that was a substantial step toward taking money from Officer Hamner, while battery of a law enforcement officer requires proof that Owens touched Officer Hamner in a rude, insolent, or angry manner. Thus, one offense focuses on the improper touching of another, while the other focuses on the proscribed taking of another’s property. Consequently, we conclude that they are separate and distinct offenses, and that they do not violate the statutory evidence test. Thus, we move to the second test under the Indiana double jeopardy analysis, the actual evidence test, to determine whether each offense was established by separate and distinct facts. Id. at 52-53.
    Turning to the actual evidence test, our supreme court has described it as follows:
Under this inquiry, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a defendant must demonstrate 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. To establish that two offenses are the same offense under the actual evidence test, the possibility that the same evidence was used to convict the defendant of both offenses must be reasonable, not speculative or remote. Griffin v. State, 717 N.E.2d 73 (Ind. 1999), cert. denied.
    In this case, the attempted robbery and battery convictions arose from the same set of facts. Owens’ conviction for attempted robbery could only have resulted from his striking of Officer Hamner, and his conviction for battery resulting in bodily injury to a law enforcement officer could only have resulted from the striking of Officer Hamner. Specifically, Owens’ overt action of striking Officer Hamner in the head was required to convict Owens of both offenses. Consequently, there is a reasonable possibility that the evidentiary facts used by the trial court to establish the essential elements of battery resulting in bodily injury to a law enforcement officer may have also been used to establish the essential elements of attempted robbery. Therefore, we hold that Owens’ convictions are for the same offense and that they violate the Indiana double jeopardy clause. See Richardson, 717 N.E.2d at 54.
    Our final task is to determine what must be done to correct the double jeopardy violation. When two convictions are found to contravene Indiana double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. Richardson, 717 N.E.2d at 54. If it will not, one of the convictions must be vacated. Id. In the interest of efficient judicial administration, the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate. Id.
    In the instant case, the two convictions are of different severities, the attempted robbery conviction is a Class B felony, and the battery resulting in bodily injury to a law enforcement officer is a Class D felony. Reducing one of the convictions to a less serious form of the same offense will not eliminate the double jeopardy violation because we have determined that the two convictions arose out of the same set of facts. Consequently, one of the convictions must be vacated.
To remedy the double jeopardy violation, Owens requests that we vacate the attempted robbery conviction. As previously stated, when we determine that two convictions contravene double jeopardy principles, we may eliminate the violation by vacating either conviction, and we consider the penal consequences that the trial court found appropriate. Richardson, 717 N.E.2d at 54. We, therefore, vacate the battery conviction because it has less severe penal consequences, and we leave standing the attempted robbery conviction. See Jenkins v. State, 726 N.E.2d 268, 271 (Ind. 2000).