ATTORNEY FOR APPELLANT:            ATTORNEYS FOR APPELLEE:

DENNIS R. MAJEWSKI                 KAREN M. FREEMAN-WILSON
Terre Haute, Indiana                Attorney General of Indiana

                             LIISI BRIEN
                            Deputy Attorney General
                            Indianapolis, Indiana

 NORMAN J. JOHNSON,                  )
                                             )
    Appellant-Defendant,                     )
                                             )    Supreme Court Cause Number
        v.                                   )    11S00-9904-CR-244
                                             )    
STATE OF INDIANA,                            )
                                             )
    Appellee-Plaintiff.                      )

I.C. § 35-43-2-1 (1998) (emphasis added). Here, the evidence presented at trial showed that Johnson broke and entered Miller’s home – a dwelling. Thus, we reduce Johnson’s burglary conviction to a Class B felony.
B. Burglary and Conspiracy to Commit Burglary
We next address whether Johnson’s convictions for burglary and conspiracy to commit burglary also violate Indiana’s double jeopardy clause. That is, we examine whether it is reasonably possible that the same evidence was used to support both Johnson’s burglary conviction and Johnson’s conviction for conspiracy to commit burglary. We first observe that a defendant may be convicted of both conspiracy to commit a felony and commission of the underlying felony. See Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied, 120 S. Ct. 2697 (2000). A double jeopardy violation occurs where the same evidence used to prove the overt act committed in furtherance of the conspiracy also proves the commission of the underlying crime. See Turnley v. State, 725 N.E.2d 87, 91 (Ind. 2000); Griffin, 717 N.E.2d at 89.
The case before us is somewhat unusual because the information charging Johnson with conspiracy to commit burglary mentions no overt acts. See footnote In like fashion, the final jury instructions are silent on what overt acts the State was required to prove in order to obtain a guilty verdict for conspiracy to commit burglary. Nonetheless, we may examine the record
to determine the facts upon which the State relied to support its charge of conspiracy. See McIntire v. State, 717 N.E.2d 96, 100 (Ind. 1999) (observing that the evidentiary facts used by the jury in reaching its decision may be informed by considerations of the final jury instructions and arguments of counsel); see also Parker v. State, 660 N.E.2d 1025, 1031 (Ind. Ct. App. 1995) (finding that the record showed the State proved several overt acts to support its claim of conspiracy apart from the underlying felony even though the jury was not instructed as to a particular overt act). The record shows that in final summation the prosecutor advanced the argument that the State had proven that either Johnson or his co-conspirators had engaged in several overt acts, including: obtaining a weapon, entering the crime scene [Miller’s home], and stealing items from Miller’s home. R. at 1373. In addition, both charged offenses included the same intent to commit a felony of theft, robbery, or battery resulting in serious injury. Thus, the evidence proving conspiracy to commit burglary in this case also established the essential elements of Class B burglary as now reduced. Applying the Richardson test, we conclude there was a reasonable possibility that the jury used the same evidentiary fact to prove the essential elements of both the conspiracy to commit burglary charge and the burglary charge as a Class B felony. Accordingly, we must vacate Johnson’s conviction for conspiracy to commit burglary.
C. Auto Theft and Robbery
For his last double jeopardy claim, Johnson contends that he was improperly convicted and sentenced for auto theft. More particularly, Johnson argues that auto theft is a lesser included offense of robbery, and thus the auto theft conviction must be vacated. We need not decide this issue on Indiana constitutional grounds because Indiana Code section 35-38-1-6 specifically addresses this concern by prohibiting judgment and sentence for both a greater and a lesser included offense. See footnote Theft is an inherently included lesser offense of
robbery. One cannot commit robbery without also committing theft. Brown v. State, 650
N.E.2d 304, 305 (Ind. 1995); Clemmons v. State, 538 N.E.2d 1389, 1389 (Ind. 1989).
The State counters that in this case, auto theft is not a lesser included offense of robbery because the taking of different property supports each offense. In support, the State points out that the charging information for robbery alleged alternatively that Johnson took from Miller “a 1997 Harley Davidson motorcycle, cash and/or drugs,” R. at 47, while the auto theft charge involved only the motorcycle. Under the “single larceny rule,” Johnson’s conviction for auto theft cannot stand. The rule provides:
[W]hen several articles of property are taken from the same person at the same time, from the same place, there is but a single larceny for which there may be but one judgment and one sentence. This rationale extends to theft as an included offense; where both cash and an automobile were taken during an armed robbery, the State could not split up a single offense to make distinct parts the basis for multiple prosecutions.

Tingle v. State, 632 N.E.2d 345, 350 (Ind. 1994) (citation omitted). We conclude that the same material elements of auto theft were included in the elements of robbery. Pursuant to Indiana Code section 35-38-1-6, Johnson’s auto theft conviction also must be vacated.
In a related argument, Johnson also complains the trial court erred in ordering his sentences to run consecutively because, “Theft, Auto Theft and Robbery as a Class C felony are not crimes of violence for purposes of consecutive sentencing as set out in Indiana Code § 35-50-1-2.” See footnote Br. of Appellant at 11. The trial court did not sentence Johnson for theft, and we have vacated his conviction for auto theft. Thus, those two convictions are not a part
of the calculus. As for robbery, it is true that the statute does not identify Class C felony robbery as a “crime of violence.” I.C. § 35-50-1-2 (defining the term to include, among other things, robbery as a Class A felony or a Class B felony). However, the limitations the statute imposes on consecutive sentencing do not apply between crimes of violence and those that are not crimes of violence. See Williams v. State, 741 N.E.2d 1209, 1214 (Ind. 2001); Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000). Accordingly, the trial court did not err by ordering Johnson’s sentence for robbery as a Class C felony to run consecutive to the murder and burglary as a Class B felony, both of which are defined as “crimes of violence.” I.C. § 35-50-1-2(a)(1), (11).

R. at 48. The information is thus defective because the State is required to “allege and prove” that either the defendant or the person with whom the defendant agreed “performed an overt act in furtherance of the agreement.” I.C. § 35-41-5-2(b). However, a challenge to a defective charging information must be made within twenty days of the omnibus date, and failure to do so results in waiver of the issue on appeal. Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994); I.C. § 35-34-1-4(a).

I.C. § 35-50-1-2(c) (emphasis added).