ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Teresa D. Harper Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
INDIANA SUPREME COURT
ELLIOTT D. TYSON, )
v. ) 49S00-0006-CR-381
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Dreyer, Judge
Cause No. 49G20-9905-CF-081336
On Direct Appeal
April 26, 2002
Following a single trial involving two separate criminal incidents, the defendant, Elliott Tyson,
was convicted of two counts of conspiracy to deal in a narcotic drug,
one as a class A felony and one a class B felony, and
two counts of dealing in a narcotic drug, one as a class A
felony and one as a class B felony. The defendant was also
found to be a habitual offender.
On appeal, the defendant contends that his convictions for conspiracy and dealing in
a narcotic drug violate the Indiana Double Jeopardy Clause and that his habitual
offender finding was based on insufficient evidence.
The defendant's first contention is that his convictions and sentences for multiple counts
of dealing in a narcotic drug and conspiracy to deal a narcotic drug
violate the Indiana Double Jeopardy Clause, Article 1, Section 14 of the Indiana
Constitution, specifically the "actual evidence test" explicated in Richardson v. State, 717 N.E.2d
32 (Ind. 1999). To show that two challenged offenses constitute the same
offense under the actual evidence test, a defendant must demonstrate a reasonable possibility
that the evidentiary facts used by the fact-finder to establish all the essential
elements of one offense may also have been used to establish all the
essential elements of a second challenged offense. Spivey v. State, 761 N.E.2d
831, 833 (Ind. 2002); Redman v. State, 743 N.E.2d 263, 267 (Ind. 2001);
Richardson, 717 N.E.2d at 53.
The essential elements of the offense of conspiracy to deal a narcotic drug
are: (1) the defendant (2) agreed with one or more other persons to
commit the crime of dealing in a narcotic drug (3) with the intent
to commit dealing in a narcotic drug and (4) the defendant or one
of the persons to the agreement performed an overt act in furtherance of
the agreement. Ind.Code § 35-41-5-2. The essential elements of the offense
of dealing in a narcotic drug are: (1) the defendant (2) knowingly
or intentionally (3) delivered (4) a narcotic drug, pure or adulterated. Ind.Code
The court read the charging information to the jury. Count I and
III, charging conspiracy to deal a narcotic drug, alleged that the defendant and
Charles McCauley, with intent to deal narcotics, agreed with each other to deliver
heroin, a narcotic drug, to J. Avington, and then as an overt act
of that agreement, delivered the heroin. As to the dealing in a
narcotic drug, counts, II and IV, the charging information alleged that the defendant
and McCauley knowingly delivered heroin a narcotic drug to J. Avington.
On two separate occasions Indianapolis Police Detective Jeffrey Avington and a confidential informant
purchased ten bindles of heroin for $200 from the defendant and McCauley.
These transactions followed a similar patternthe confidential informant paged the defendant, he returned
the call, an order for heroin was placed with the defendant, a meeting
place was established, and the parties met and exchanged the money and drugs.
It is thus reasonably possible that the evidence used by the jury to
establish the essential elements of the conspiracy charge (the defendant, intending to deal,
agreed with McCauley, and the defendant delivered the heroin to Avington) were also
used to prove the essential elements of dealing (defendant, knowingly, delivered heroin to
Avington). Under the actual evidence test, the defendant has demonstrated that for
both transactions his convictions for both dealing a narcotic drug and conspiracy to
deal a narcotic drug violate the Indiana Double Jeopardy Clause. Both convictions
cannot stand. We therefore vacate the defendant's conspiracy convictions in Counts I
The defendant also contends that there was insufficient evidence to support his habitual
offender finding. Specifically, the defendant argues that the evidence did not support
one of the alleged prior offenses, operating while intoxicated.
In reviewing a
claim of insufficient evidence, we will affirm the conviction unless, considering only the
evidence and reasonable inferences favorable to the judgment, and neither reweighing the evidence
nor judging the credibility of the witnesses, we conclude that no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.
Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000).
In regard to the use of documents to establish the existence of prior
convictions we have stated:
Certified copies of judgments or commitments containing a defendant's name or a similar
name may be introduced to prove the commission of prior felonies. Schlomer
v. State, 580 N.E.2d 950, 958 (Ind. 1991) (citing Andrews v. State, 536
N.E.2d 507 (Ind. 1989)). While there must be supporting evidence to identify
the defendant as the person named in the documents, the evidence may be
circumstantial. Id.; see also Coker v. State, 455 N.E.2d 319, 322 (Ind.
1983). If the evidence yields logical and reasonable inferences from which the
finder of fact may determine beyond a reasonable doubt that it was a
defendant who was convicted of the prior felony, then a sufficient connection has
been shown. Pointer v. State, 499 N.E.2d 1087, 1089 (Ind. 1986).
Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999). To prove the
defendant was previously convicted of operating while intoxicated the State offered into evidence
the information, plea agreement, and the minutes of the court for the guilty
plea. Record at 495-96, 501, 504. The documents carry a consistent
cause number for this offense,
See footnote and the name the offender and other identifying
information match the defendant. There was sufficient evidence from which a fact-finder
could find beyond a reasonable doubt that the defendant was convicted of two
separate and unrelated felonies.
The defendant's convictions for dealing in a narcotic drug, Counts II and IV,
are affirmed, and his convictions for conspiracy to deal in a narcotic drug,
Counts I and III, are vacated. This cause is remanded to the
trial court to sentence the defendant accordingly, and to attach the habitual offender
enhancement to one of the Counts affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Magistrate Michael Jenson presided over the trial and sentencing.
Footnote: The charging language of Counts III and IV were parallel to Counts
I and II except that Counts I and II, based on a separate
criminal incident that occurred on a different day, were charged as class A
felonies because they were alleged to have been committed within 1000 feet of
The defendant does not challenge the other alleged previous convictionpossession of a
Footnote: While the information does not list the cause number in the pre-printed
space for the cause number (it is blank) the cause number is stamped
on the document. It is reasonable for the fact-finder to infer that
the cause number stamped on the document applies to the same charge in
which the defendant subsequently pled guilty.