ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
Teresa D. Harper Steve Carter
Bloomington, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
DOMINIQUE GUYTON, )
Appellant (Defendant), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0002-CR-105
STATE OF INDIANA, )
Appellee (Plaintiff). )
_________________________________________________________________APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9804-CF-067208
July 25, 2002
SHEPARD, Chief Justice
Dominique Guyton was found guilty of numerous offenses arising out of a shooting
incident on the streets of Indianapolis. His appeal provides an occasion to
recapitulate our recent decisions on Double Jeopardy.
Facts and Procedural Background
On April 23, 1998, Indianapolis police officers found the body of Pax Larrimore
lying in the street in the 4300 block of Norwaldo Avenue. He
had died from two gunshot wounds to the chest and abdomen. As
the investigation unfolded, Guyton became a suspect. Guyton and Larrimore had had
several encounters in which Larrimore had shot at Guyton from a car.
On April 28, police interviewed Guyton. He admitted to running into Larrimore
on the day of the murder and claimed that Larrimore had approached his
car on foot and put his hand in his pocket. Guyton, thinking
Larrimore was about to pull out a gun, drove away. Guyton denied
Guyton was charged with murder, two counts of attempted murder, and carrying a
handgun without a license. At trial, Guyton had a different account.
He claimed that on the day of the shooting he went to visit
friends at 43rd and Norwaldo. After talking with his friends for awhile,
he left when a group of men, including Larrimore, Anthony Butts, Tonio Walker,
and Damon Jackson, approached. Guyton next visited Sherry Akers and made plans
for later that evening. According to Guyton, after he left Akers, he
was driving down Norwaldo when he saw Larrimore flagging him down. When
Guyton saw Larrimores hand on the grip of a gun, he panicked, grabbed
his own gun, and fired three or four times.
Butts testified to a third version. According to Butts, Guyton drove up
to the group, held his hand out of his car, and fired four
shots, one at each of Larrimore, Butts, Walker, and Jackson. He then
fired a final shot at Larrimore before driving off. Butts identified Guyton
as the shooter from a photo array. According to Jackson, Larrimore did
not have a gun that day.
The jury found Guyton guilty of murdering Larrimore, attempting to murder Jackson, and
carrying a handgun without a license. He was sentenced to fifty-five years
for murder, thirty years for attempted murder, and one year for the handgun
violation, all to be served concurrently.
I. Double Jeopardy Recited
Guyton claims that his convictions for murder and carrying a handgun without a
license violate the Double Jeopardy provisions of the Indiana Constitution, citing Richardson v.
State, 717 N.E.2d 32 (Ind. 1999).
We held in Richardson that the Double Jeopardy clause is violated 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.
As we recently explained, [U]nder the Richardson actual evidence test, the Indiana
Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential
elements of one offense also establish only one or even several, but not
all, of the essential elements of a second offense. Spivey v. State,
76l N.E.2d 831, 833 (Ind. 2002).
In addition to the instances covered by Richardson, 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. Pierce v. State, 76l N.E.2d 826, 830 (Ind. 2002)
(citing Richardson, 7l7 N.E.2d at 55 (Sullivan, J., concurring), 57 (Boehm, J., concurring
Justice Rucker recently pointed out that one of these rules prevents enhancing one
conviction for robbery by using a death for which the defendant is also
being punished. Gross v. State, 769 N.E.2d 1137 (Ind. 2002). This
comes under the category described by Justice Sullivan as [c]onviction and punishment for
an enhancement of a crime where the enhancement is imposed for the very
same behavior or harm as another crime for which the defendant has been
convicted and punished. Richardson, 7l7 N.E.2d at 56 (Sullivan, J., concurring).
The list of five categories from Justice Sullivans concurrence in Richardson includes one
category presumably covered by constitutional Double Jeopardy (an analysis we recently reaffirmed in
Spivey, 761 N.E.2d at 833), described by Justice Sullivan then as [c]onviction and
punishment for a crime which is a lesser-included offense of another crime for
which the defendant has been convicted and punished. Richardson, 7l7 N.E.2d at
56 (Sullivan, J., concurring).
That list also includes:
--Conviction and punishment for a crime which consists of the very same act
as another crime for which the defendant has been convicted and punished.
Id. (giving the example of a battery conviction vacated because the information showed
that the identical touching was the basis of a second battery conviction).
--Conviction and punishment for a crime which consists of the very same act
as an element of another crime for which the defendant has been convicted
and punished. Id. (giving the example of a confinement conviction vacated because
it was coextensive with the behavior necessary to establish an element of a
--Conviction and punishment for the crime of conspiracy where the overt act that
constitutes an element of the conspiracy charge is the very same act as
another crime for which the defendant has been convicted and punished. Id.
at 56-57 (giving the example of a conspiracy in which the overt act
is no more than the crime itself).
As for Guytons claim, it does not succeed under any of the above.
As we said recently, Carrying the gun along the street was one
crime and using it was another. Mickens v. State, 742 N.E.2d 927,
931 (Ind. 2001).
II. Attempted Murder Instruction
Guyton challenges the trial courts instruction on attempted murder, which said:
A person who knowingly or intentionally kills another human being commits murder.
A person attempts to commit a murder when, acting with the culpability required
for commission of the crime of murder, he engages in conduct that constitutes
a substantial step toward commission of the murder. The crime of Attempted
Murder is a Class A felony.
To convict the Defendant of Attempted Murder, the State must have proved each
of the following elements:
The Defendant Dominique Guyton:
1. Acting with the specific intent to commit murder that is by knowingly
or intentionally, shooting a deadly weapon, that is a handgun }[ [sic] at
and against the person of Damon Jackson and/or Anthony Butts.
2. Which was conduct constituting a substantial step toward the commission of intended
crime of Attempt Murder.
If the State failed to prove each of these elements beyond a reasonable
doubt, you should find the defendant not guilty.
If the State did prove each of these elements beyond a reasonable doubt,
you should find the defendant guilty of the crime of Attempted Murder, a
Class A felony.
Guyton objected to the instruction on the ground that this instruction failed to
meet the standard set forth in Spradlin v. State, 569 N.E.2d 948 (Ind.
1991). In Spradlin, this Court held that attempted murder requires a specific
intent to kill, and is not supported by knowing actions. Id. at
950. Spradlin held that the failure to instruct correctly on this point
is reversible error.
In reviewing a trial courts decision to give or refuse tendered jury instructions,
this Court considers: (1) whether the instruction correctly states the law; (2) whether
there is evidence in the record to support the giving of the instruction;
and (3) whether the substance of the tendered instruction is covered by other
instructions which are given. Cutter v. State, 725 N.E.2d 401, 408 (Ind.
2000). An instruction which correctly sets forth the elements of attempted murder
requires an explanation that the act must have been done with the specific
intent to kill. Smith v. State, 459 N.E.2d 355, 358 (Ind. 1984).
The instruction in this case does not meet this requirement, and is
therefore an incorrect statement of the law. It begins by telling the
jury that it can convict if the defendant acted with the culpability required
for murder, which just one paragraph before is described as knowingly or intentionally.
Knowingly is described in another instruction as engaging in conduct when a
person is aware of a high probability that he is doing so.
The instruction did refer to the specific intent to commit murder, but the
specific intent to commit murder was described as knowingly or intentionally, shooting a
deadly weapon. Guyton is correct that this instruction could be understood by
a jury to permit conviction on a knowing killing. It was at
best confusing because of its circular reference to specific intent to commit murder,
which leads to the knowing or intentional definition for murder, as well as
the other references to knowingly.
Guyton objected to the instruction on the ground that it did not refer
to a specific intent to kill. This was a valid objection.
Because Guyton objected to the instruction and it does not correctly state the
law, it was error and his conviction for attempted murder is reversed.
See Allen v. State, 575 N.E.2d 615, 617 (Ind. 1991) (Had appellant objected
to this instruction at trial, giving it would have been error because it
does not inform the jury that the State must prove the defendant acted
with intent to kill.).
III. Juror Misconduct
Guyton finally claims that the trial court abused its discretion in refusing to
conduct a hearing on his claim of juror misconduct.
After the trial, Guyton learned that one of the jurors, Frederick Mechum, worked
at the Internal Revenue Service with Shirley Amis, Guytons stepmother. On the
first day of trial, Mechum approached Amis and asked if he knew her.
She responded that they worked together at the IRS and walked away.
On the second day of trial, Mechum and Amis exchanged greetings and
again Amis walked away. A few days after trial, Mechum and another
coworker approached Amis at work and asked her whether that was someone to
you, at the trial. Amis replied that it was her son.
The next day Amis received a sympathy card for the death of her
son from her coworker.
Guyton then filed a request for a hearing to determine whether Mechums mistaken
assumption that Larrimore was Amis son resulted in any bias against Guyton.
This motion was accompanied by an affidavit from Amis reciting the facts described
above. The trial court denied the motion.
A defendant seeking a hearing on juror misconduct must first present some specific,
substantial evidence showing a juror was possibly biased.
Lopez v. State, 527
N.E.2d 1119, 1130 (Ind. 1988). In this case, even accepting Guytons facts
as true, he has not presented any evidence of juror bias. From
the testimony it is clear that Mechum was not sure who Amis was
or whether she had any relation to the defendant or the victim.
Only after the trial did Mechum ask her relationship to either. Although
he was incorrect in his assumption that her response indicated that she was
the mother of the victim, not the defendant, this presents no substantial evidence
of bias during the trial.
We affirm t
he judgment of the trial court as to murder and carrying
a handgun without a license. Guytons conviction for attempted murder is reversed
and remanded for retrial.
SULLIVAN and RUCKER, JJ., concur.
DICKSON, J., concurs in result with separate opinion.
BOEHM, J., concurs with separate opinion.
DICKSON, Justice, concurring in result.
In Part II, the Court acknowledges that Guyton contends that his convictions of
murder and carrying a handgun without a license violate the Double Jeopardy Clause
of the Indiana Constitution, as implemented in our actual evidence test in
v. State, 717 N.E.2d 32, 49 (Ind. 1999). The Court does not
address this constitutional claim but instead discusses only the related issue of whether
his convictions violate the rules of statutory construction and common law that we
recognize to provide a basis for relief separate from and additional to the
state constitutional claim. See Henderson v. State, 769 N.E.2d 172, 178 (Ind.
2002); Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002); Spivey v. State,
761 N.E.2d 831, 834 (Ind. 2002).
The unaddressed constitutional claim, however, is not meritorious. To prevail in his
asserted violation of the Indiana Double Jeopardy Clause under
Richardson, Guyton must demonstrate
that there is a reasonable, not speculative or remote, possibility that the jury
used the same evidentiary facts to establish all the essential elements of both
murder and carrying a handgun without a license. Griffin v. State, 717
N.E.2d 73, 89 (Ind. 1999), cert. denied, 530 U.S. 127, 120 S.Ct. 2697,
147 L.Ed.2d 968 (2000).
To prove the murder, the State demonstrated that Guyton caused Larrimores death by
shooting him twice with a handgun. It also showed that Guyton carried
the gun both when he met with Sherry Akers before the shooting and
then later when he used it to shoot Larrimore. In this case
there was direct evidence, apart from Guytons firing the weapon, that he carried
a handgun without a license. Guyton testified that before he arrived at
the murder scene he had stopped to talk with Akers and had a
handgun wrapped in a towel underneath his leg. He also admitted that
he did not have a permit to carry it. Record at 451.
It is not reasonably possible that the jury ignored this evidence and instead
based its finding of guilt for the handgun offense solely on the defendants
possession of the weapon at the time he fired it at Larrimore.
For this reason, Guyton has failed to establish his claimed violation of
the Indiana Double Jeopardy Clause.
In his separate concurring opinion, Justice Boehm proposes a methodology that modifies the
Richardson actual evidence test by requiring the evidence proving each offense at trial
to be analyzed to determine each constituent "evidentiary fact" or "fact" established by
or inferred from the evidence. Thus in this case, Justice Boehm takes
the body of evidence showing that Guyton fired a handgun from his car
to fatally shoot Larrimore, subdivides it into multiple component "facts," and then concludes
that there was no reasonable possibility that the jury based both convictions on
the same group of "facts."
It is certainly true that throughout
Richardson, we used the phrase "evidentiary facts"
instead of "evidence." We used "evidentiary facts" when first articulating the test,
id. at 53, when we applied the test to the facts of the
case, id. at 54, and when evaluating the proper remedy, id. at 55.
See also id. at 53 n.46 (noting that the Indiana Double Jeopardy
Clause permits convictions for multiple offenses committed in a protracted criminal episode when
the verdicts are not "based on the same evidentiary facts."). However, there
is nothing in Richardson or the analysis on which it is based to
support the parsing of one evidentiary fact to create multiple evidentiary facts.
Justice Boehm's proposed analysis, I believe, significantly lessens the protection provided by the
Indiana Double Jeopardy Clause. If this methodology had been followed in several
of our earlier post-
Richardson opinions that found double jeopardy violations, we would have
reached an opposite result.
For example, in
Turnley v. State, 725 N.E.2d 87 (Ind. 2000), the defendant
and an accomplice broke into a home to steal money and agreed to
kill the female occupant if necessary. While Turnley held her hands, his
accomplice choked her to death. Turnley was convicted of multiple crimes including
both murder and conspiracy to commit murder. The conspiracy count alleged that
Turnley's restraint of the victim was the overt act element of conspiracy.
Under Justice Boehm's proposed methodology, a reviewing court would break the evidence into
component "evidentiary facts" including: (1) Turnley and his accomplice agreed to kill the
victim; (2) they intended to kill; (3) Turnley assisted by restraining the victim;
(4) the accomplice strangled her; and (5) the victim died from the strangulation.
Using the proposed analysis the court would then determine that the jury
used "evidentiary facts" (1), (2) and (3) to establish the essential elements of
the conspiracy count, and that the jury used "evidentiary facts" (2), (4), (5)
and possibly (3) to establish the murder. The result would be that
there is no double jeopardy because there is no reasonable possibility that the
jury relied upon the same body of "evidentiary facts" to establish both offenses,
i.e., no possibility that all the "evidentiary facts" establishing one offense are included
among those that establish another offense, or stated differently, no possibility that the
"evidentiary" facts used by the jury to establish all the elements of one
offense were also used to establish all the elements of another offense.
Our opinion, however, reached the opposite result. Finding a violation of the
Indiana Double Jeopardy clause, we held that "there is at least a reasonable
possibility--indeed a high probability--that the jury used the same evidentiary fact--the restraining and
strangulation of [the victim]--to prove an essential element of the conspiracy to commit
murder (the overt act) and also the essential element of murder.
725 N.E.2d at 91.
The methodology proposed by Justice Boehm would also have required a different result
Richardson itself. There the defendant and several others brutally beat the
victim and took his wallet. The proposed methodology would parse this evidence
into several component "evidentiary facts" including: (1) defendant intended to batter; (2) defendant
intended to take the wallet; (3) defendant and others beat the victim; (4)
they took the victim's billfold; (5) the victim suffered injuries. It would
then be probable to conclude that the jury used "evidentiary facts" (1), (3),
and (5) to prove class A misdemeanor battery, but used "evidentiary facts" (2),
(3), and (4) to establish class C felony robbery. As in Turnley,
above, there would be no reasonable possibility that the jury used the same
group of "evidentiary facts" to establish all the elements of both offenses, and
thus no double jeopardy. In Richardson, however, we reached the opposite
conclusion and found that the Indiana Double Jeopardy Clause was violated. Without
disaggregating the evidence into separate "evidentiary facts," we concluded that the same body
of evidence (brutal beating plus taking wallet) may reasonably have been used by
the jury to prove both offenses.
I acknowledge that, in many cases where a defendant is convicted of both
an offense committed with a handgun and the offense of carrying a handgun
without a license, the
Richardson actual evidence test may, at first blush, appear
to require that the handgun offense be vacated. The same evidence proving
an offense involving use of a handgun would also appear to prove the
elements of carrying a handgun without a license--if we presume that, because the
existence of a license is a matter of affirmative defense for the defendant,
it is not considered as an element of the offense. See Ind.Code
§ 35-47-2-24; Washington v. State, 517 N.E.2d 77, 79 (Ind. 1987). I
contend, however, that this presumption is inappropriate.
To determine if a defendant has been punished twice for the same offense
Richardson actual evidence test, a better approach is to consider all
three statutory elements of the offense of carrying a handgun without a license:
(a) carrying a handgun in any vehicle or on or about his person
(b) except in his dwelling, his property, or fixed place of business, (3)
without a proper license in his possession. Ind.Code § 35-47-2-1.
is not necessarily inconsistent with Washington because it was addressing whether the existence
of a license is an element that must be disproved by the State
or a matter that constitutes an affirmative defense to be proved by a
defendant. 517 N.E.2d at 79. It was in this context, not
that of double jeopardy, that we declared in Washington: "Proof that a defendant
does not possess a license to carry a handgun is not an element
of . . . the statute which delineates this crime." Id. at
In contrast to this language in Washington, our Court of Appeals recently found
no violation of the Indiana Double Jeopardy Clause under the Richardson actual evidence
test by assessing the "essential elements" of the offense of carrying a handgun
without a license to include both the elements which the State must prove
and that which the defense must prove. Ho v. State, 725 N.E.2d
988 (Ind. Ct. App. 2000). In essence, the Ho court held that
there was no violation of the Indiana Double Jeopardy Clause because the evidence
used by the jury to establish robbery while armed with a handgun did
not also relate to whether or not Ho possessed a valid license.
See id. at 993. In applying the actual evidence test for violation
of the Indiana Double Jeopardy Clause, the Ho court used the term "element"
in a different sense than it was used in Washington, where we used
the phrase "not an element" merely to succinctly express the idea that such
proof is not an element on which the State carries the burden of
proof. We recently expressed approval of Ho in Mickens v. State, 742
N.E.2d 927, 931 (Ind. 2001), which also rejected a double jeopardy claim arising
from convictions for murder and carrying a handgun without a license.
In the present case, even if we did not consider the separate evidence
of Guyton's unlicensed possession of the handgun before he arrived at the murder
scene, Guyton's convictions for murder and carrying a handgun without a license would
not violate the Indiana Double Jeopardy Clause. There would be no reasonable
possibility that the evidentiary facts used by the jury to establish the elements
of murder were also used to establish the essential elements of carrying a
handgun without a license. The evidence proving the murder did not involve
the existence or absence of a license for the handgun, and the facts
proving carrying an unlicensed handgun did not include the resulting death of the
BOEHM, Justice, concurring.
The Court today affirms Guytons convictions for murder and possession of a handgun
based on our holding in Mickens v. State, 742 N.E.2d 927 (Ind. 2001),
that possessing the gun is one crime and killing with it is another.
I agree, but I believe we need to explain how this ruling
relates to the double jeopardy doctrine announced in Richardson v. State, 717 N.E.2d
32 (Ind. 1999), which the Court cites, then does not mention again.
I also believe we should directly address Guytons claim that Richardson precludes use
of the same evidenceButts testimonyto convict him of both crimes.
In Richardson, a three Justice majority announced an actual evidence test for double
jeopardy under the Indiana Constitution as applied to multiple convictions in the same
trial. Richardson formulated the test for Indiana constitutional double jeopardy as whether
there is a reasonable possibility that the evidentiary facts supporting one conviction were
used by the jury to support another. In substance, applying this Richardson
test means opting for (1) psychoanalyzing the jury based on evidence, argument, instructions
and charging instruments and indulging in the irrebuttable presumption the jury followed all
of these; (2) the reasonable possibility standard to determine whether that occurred, and
(3) the requirement that all not just one of the evidentiary facts overlap.
After citing Richardson, the Court today reaffirms several rules that preclude imposition of
multiple punishments under some circumstances. As formulated by Justice Sullivans concurring opinion
in Richardson, these turn in large part on whether the very same act
supports two convictions. The problem Richardson sought to address, albeit with a
slim majority, was how we know when we have two crimes supported by
the very same act. I think we owe an explanation of this
mystery because I believe today we have in effect abandoned Richardson, and should
be explicit in doing this so future trial and appellate courts can follow
a consistent methodology in reviewing double jeopardy claims.
Guytons claim under a Richardson analysis is a claim that the evidentiary facts
supporting his handgun conviction are included in those supporting his murder conviction.
The Court makes no mention of what the jury might have found, and
there is no reference to the reasonable probability standard. Rather, we are
told, and I agree, that carrying the handgun is one thing and firing
it is another. For the reasons that follow, I believe this represents
an abandonment of Richardson and a return to the pre-Richardson methodology of reviewing
the evidence, instructions, charging instrument and argument of counsel under a de novo
standard to determine whether it is more probable than not that the facts
supporting one conviction are embraced within those supporting another. On this basis,
I concur in the Courts opinion.
A. Some History
Justice Sullivan, concurring in Richardson, identified several situations in which two convictions cannot
coexist. They were: 1) lesser included offenses; 2) the two crimes consist
of the very same act; 3) one crime consists of the very same
act as an element of the other; 4) an enhancement of one crime
imposed for the very same behavior or harm as another crime; and 5)
conspiracy where the overt act is the very same act as another crime.
I thought then, and think now, that the double jeopardy clause of
the Indiana Constitution has other and more important work to do in addressing
subsequent prosecutions. Richardson, 717 N.E.2d at 57-73 (Boehm, J., concurring in result).
However, under stare decisis, I accept the Courts view that the Indiana
Constitution addresses multiple convictions.
Richardson sought to establish a single comprehensive rule [of double jeopardy] synthesizing and
superseding previous formulations and exceptions. Spivey v. State, 761 N.E.2d 831, 832
(Ind. 2002). Subsequent experience has made clear that this goal was not
achievable, at least not without upsetting a number of the precedents supporting the
rules cited by Justice Sullivan. For example, the requirement of Richardson that
all facts of one crime be embraced within that of the other limits
its application to the rules prohibiting conviction for lesser included offenses. In recognition
of the incompatibility of the actual evidence test with these precedents, Pierce v.
State, 761 N.E.2d 826 (Ind. 2002), acknowledged that some of these doctrines were
not of constitutional dimensions and were not governed by Richardson. Accordingly some
of these rules (e.g., the same bodily injury does not elevate two crimes)
are not subject to a Richardson analysis, and can prohibit double enhancement through
a single common element. At the same time, in Spivey, we reiterated
that the Richardson constitutional test required all, not just one, of the evidentiary
facts of one crime to be embraced within those of another before the
constitutional test of Richardson would bar two convictions. Spivey, 761 N.E.2d at
I concur in everything the Court says. I nevertheless believe the widespread
confusion reflected in the Court of Appeals cases attempting to apply Richardson requires
us to try to explain how future cases are to be analyzed.
The first Sullivan rule is the statutory elements test, identical to federal double
Blockburger v. United States, 284 U.S. 299 (1932). The second
and third prohibit dual convictions under an analysis substantially the same as identification
of a factually lesser included offense, as that term is explained in Wright
v. State, 658 N.E.2d 563 (Ind. 1995).
See footnote Both
Richardson and Wright teach
that we look to the charging instruments and evidence to determine whether one
crime is a factually lesser included offense. Richardson and several of its
progeny make clear that the charging instrument,
See footnote the instructions,See footnote arguments of counsel,See footnote and
the evidence itselfSee footnote may be relevant to a determination whether the evidentiary facts
of one crime are included among those of another.
The fourth Sullivan rule requires us to determine whether the very same behavior
or harm enhanced two crimes, but we are not told how that is
to be determined or reviewed on appeal. The fifth similarly turns on
whether the overt act supporting a conspiracy is the very same act as
another crime. All of the foregoing is acceptable to me, but I
think we should be clear what we are doing and what we expect
the Court of Appeals to do in reviewing these claims. Accordingly, I
set forth how I think we are, or should be, approaching these claims
in light of the Courts holding today.
The Actual Evidence, or Same Facts, Test Under Richardson
Although the actual evidence test has acquired that sobriquet, in my view it
could also have been accurately described as a same facts test. Richardson
described it as 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. 717
N.E.2d at 53. Thus, to prevail under that test, Richardson taught that
Guyton must demonstrate a reasonable possibility that the same evidentiary facts used by
the jury to establish the essential elements of the murder charge were also
used to establish the essential elements of the handgun offense. And, as
we recently noted in Spivey v. State, 761 N.E.2d 831 (Ind. 2002), the
use of facts establishing one crime to establish a second means all, not
just some, of the evidentiary facts establishing one are included among the evidentiary
facts establishing the other.
By evidentiary fact, I take Richardson to mean the events found to have
occurred, without regard to their legal consequences and independent of the terms lawyers
and judges may use to describe them or the legal results these facts
produce. Some might prefer the simple term fact, or historical fact or
event or circumstance. The Court today uses the very same act.
By that term, I think the Court also means the same thing as
same fact in its embrace of the Sullivan rules. But using the
term same act is problematic because it limits review of the facts to
what the defendant did. Some elements of crimes are the consequences or
circumstances of the crimes. Thus the same acte.g., burning down a buildingcan
result in conviction of two murders if there are two victims. Cf.
Burnett v. State, 736 N.E.2d 259, 263 n.3 (no double jeopardy where there
are multiple victims). For this reason I believe it is more useful
to use fact rather than act to describe the overlap that precludes conviction
for two crimes.
Finally, Richardson refers to essential elements. Because proof of all elements of
a crime is essential to conviction, I use elements interchangeably with essential elements.
I understand that Richardsons majority intended the latter term to include not
only statutory elements, but also the elements as charged. Thus, although the
statutory elements of a felony murder are killing in the course of a
felony, if the charging instrument alleges killing in the course of a robbery
on June 13, 1999, these then are among the essential elements as charged.
It is in this sense that I use the term elements to
mean what needs to be proven to satisfy the statute and the charging
C. Unanswered Questions
Justice Sullivans rules, as he formulated them and as the Court states and
applies them today, do not turn on a Richardson analysis. Each of
them requires a determination whether the very same act or the very same
behavior or harm is involved in two crimes, but none elaborates how that
determination is to be made. When the Court tells us that none
of the five Sullivan rules is breached by Guytons convictions, it impliedly holds
that (1) the handgun and murder convictions were not based on the very
same act and (2) no element of either crime consisted of the very
same act that constituted the other. The Courts formulation gives us a
result: carrying the gun and firing it are two different things. I
agree, but this explanation does not address any of the following issues:
1) Is this a ruling on a point of law or a finding
2) Guytons claim is that the same evidence established both the carrying and
the firing of the gun, and this violates Richardson. Is the evidence
in Guytons case relevant to this finding by this Court? If not,
how does Richardson relate to this case? If Richardson is applicable, how
do we determine whether there is a reasonable possibility that the jury used
the same facts to find Guyton guilty of the possession and murder charges?
3) If the trial court made a finding on this point, what standard
of review applies?
4) Is this determination that these do not overlap to be measured by
the reasonable possibility of overlaps, or a preponderance of the evidence, or something
D. Of Evidence, Facts, Elements and Conclusions
I believe one critical point for purposes of analyzing factually lesser included crimes
under Richardson or otherwise (Justice Sullivans second and third rules) is that the
law prohibits sentencing for two convictions if the facts supporting one conviction are
embraced within the facts supporting the other. But it does not preclude
two convictions if each is based on a fact that is not required
for the other. Guyton contends that the jury used the same facthis
carrying a firearm that he discharged at Larrimoreto convict him of both murder
and carrying a handgun without a license. This confuses facts with evidence.
Guyton correctly points out that the evidence supporting the facts was the
same, but I agree with the Court that the facts supported by the
evidencepossessing a gun and firing itare distinct.
In evaluating a claim of double jeopardy, we must distinguish not only between
evidence and facts. We must also differentiate the elements and legal conclusions
involved in the two crimes. Butts testified that Guyton fired a handgun
at the group and, in the process, shot Larrimore. His testimony was
evidence. Blacks Law Dictionary 576 (7th ed. 1999) (Evidence is [t]he collective
mass of things, esp. testimony and exhibits, presented before a tribunal in a
given dispute.). Facts are the historical facts, acts, events or circumstances that
a finder of fact, after considering the evidence, concludes occurred. They may
include facts directly related by the evidence, and also reasonable inferences as to
what happened that are drawn from the evidence. In order to support
a conviction, the facts must in the aggregate establish the elements of a
crime. The elements are the legal terms we use to describe a
fact or an aggregation of facts. If each element is found, the
finder of fact reaches the legal conclusion, or verdict, that a crime has
Although sometimes we use the same word to describe both a fact and
an element, elements are not the same as facts. Rather, elements are
words of legal significance. Thus, a lay person might well describe an
event by saying the defendant forced the door open. But another witness
might say the defendant broke and entered. Both have described a fact
that supports an element of burglary, whether or not they used the legal
label that is pinned on the element. To further confuse us, some
elements and some crimes are described by the same terms we use for
the fact. Thus a witness in a rape case might well respond
to the question What happened next? with He raped me. But few
would respond He confined me or She battered me to describe those crimes.
In short, despite our occasional or even frequent use of the same word
to describe a fact, or an element, or the crime itself, the three
are distinct from each other and from the evidence in the case.
This is true for purposes of Richardsons double jeopardy analysis, and also for
purposes of determining the very same act under the rules cited by the
Court. Only the facts are critical for double jeopardy purposes. I
use that term to include the Courts term (act) and also consequences (multiple
victims, bodily harm) and circumstances (absence of a license).
E. Analysis of this Case Under Richardson
In my view Guytons argument arguably prevails under Richardson. The facts critical
to the murder charge in this case are: (1) Guyton pointed a gun
at Larrimore and shot him; (2) Larrimore died as a result; and (3)
Guyton had the requisite mens rea because he either (a) intended to kill
Larrimore, or (b) intended to kill someone else in the group under the
doctrine of transferred intent, or (c) fired the shot with knowledge of a
high probability that the shot would be fatal. The facts relevant to
the elements of the handgun charge are (1) Guyton possessed the gun and
(2) he did so on a public street. The piece of evidence
that Guyton shot Larrimore from the car speaks directly to the fact of
the defendants action (firing the shot), and it also supports the inference of
a second fact relevant to the murder charge, namely intent to kill.
Owens v. State, 544 N.E.2d 1375, 1377 (Ind. 1989). Thus, both shooting
and the intent to kill are facts directly or inferentially drawn from Butts
testimony that Guyton fired a handgun at the group, and hit Larrimore.
The jury obviously could have inferred the presence and possession of the gun
in a public street for some span of time including the instant of
its use. If so, Richardson would not bar both convictions. But
under these circumstances it is not obvious that the jury did draw that
inference. That leaves us with a reasonable possibility that the jury used
the fact of shooting to support the handgun charge. Yet to force
the conclusion that Richardson permits both convictions we must say there is no
reasonable possibility that the same factGuyton shot Larrimorewas used by the jury.
I think it is more appropriate and certainly easier to follow if we
admit that we are holding as a matter of law that the evidence
supports both convictions. Thus, Butts testimony, although one item of evidence might
or might not have produced distinct evidentiary facts found by the jury: (1)
Guyton shot Larrimore; (2) Guyton had the requisite mens rea; and (3) Guyton
possessed a handgun on a public street.
The Courts Holding Today
I agree with the Court that none of Justice Sullivans rules is breached
by Guytons two convictions. But I think that it takes some explanation
as to why that is true, and what methodology is required to reach
that conclusion. Guyton was convicted of murder and possession of a handgun
without a license. The elements of murder are (1) intentional or knowing
(2) killing of (3) a human being. The elements of carrying a
handgun without a license are: (1) carrying a handgun in any vehicle or
about the person (2) except in ones dwelling, on ones property or fixed
place of business.
See footnote Clearly we have no statutory elements problem here.
And it is obvious that the fourth (double enhancement) and fifth (conspiracy) of
Justice Sullivans rules do not apply to this situation.
The remaining issue is whether the same facts support both convictions. It
seems to me that the Court today handles this the way pre-
courts typically did by determining, under a de novo review of whatever is
relevant, whether the facts of one crime are such that the same fact
fits one of the Sullivan rules. Thus, just as under Richardson, we
look to see if, under the statutes, charging instruments, evidence and arguments of
counsel, it seems to us that the facts establishing one crime are the
same as the facts establishing another (Rule 2) or establishing one or more
elements of another (Rule 3). But we do this de novo, and
without any effort to analyze what the jury might have considered. Whatever
the jurys reasoning was, we find as a matter of law that the
evidence did or did not support both convictions.
In sum, although the evidence supporting the facts necessary for the handgun conviction
was included in the evidence necessary for the murder conviction, the issue, in
my view, is whether the facts supporting these two crimes are distinct.
It seems to me we cannot say that there is no reasonable possibility
the jury based both of Guytons convictions on the same set of facts.
But it is easy to say that the gun did not appear
magically in Guytons hand at the instant of firing. Therefore, viewed de
novo there was evidence supporting the facts essential to the murder conviction and
also the fact that Guyton possessed a handgun whether or not he fired
it. If so, the facts supporting the murder do not embrace
all the facts supporting the handgun offense. Therefore, Guytons convictions for murder
and carrying a handgun without a license do not violate the Indiana Double
Indiana Code § 35-47-2-1 provides: "Except as provided in section 2 of
this chapter, a person shall not carry a handgun in any vehicle or
on or about his person except in his dwelling, on his property or
fixed place of business, without a license issued under this chapter being in
his possession." Indiana Code § 35-47-2-24 declares in part, "The burden of
proof is on the defendant to prove that he is exempt under section
2 of this chapter, or that he has a license as required under
See, e.g., Vestal v. State, 745 N.E.2d 249, 251-52 (Ind. Ct. App.
2001) (concluding that a strict application of Richardson in that case would lead
to absurd results).
Wright held that where one offense is factually lesser included in another,
viewed in light of the charging instrument and the evidence, an instruction on
the lesser included offense is required if requested. Because Wright set out
the steps to determine whether an instruction was needed, obviously this analysis, unlike
Richardson, did not require reference to an instruction.
Richardson, 717 N.E.2d at 50.
Guffey v. State, 717 N.E.2d 103, 107 (Ind. 1999).
Johnson v. State, 749 N.E.2d 1103, 1109 (Ind. 2001).
Wieland v. State, 736 N.E.2d 1198, 1205 (Ind. 2000).
The distinction was not made as precisely or as clearly as it
could have been in the opinions that followed Richardson. Compare Cutter v.
State, 725 N.E.2d 401, 410 (Ind. 2000) (referring to same evidence rather than
evidentiary facts and holding that elevating rape to a Class A felony based
on the same use of force supporting murder conviction was constitutional double jeopardy)
and Mitchell v. State, 726 N.E.2d 1228, 1244 (Ind. 2000) (constitutional double jeopardy
where killing and bodily injury for Class B neglect based on same evidence)
with Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2000) (overt act for
conspiracy to commit burglary conviction also basis of auto theft conviction; referring to
evidentiary facts). In each of these cases, the evidence and the facts
were both overlapping, so the result, if not the terminology, is consistent with
the analysis offered here. In other words, none of these cases presented
the situation we have here, where the same evidence directly or by inference
supports multiple facts.
I do not think it useful or possible to attempt to reconcile
all past cases with this or any other theory. I would say,
however, that I think Justice Dicksons view of what we are in substance
doing slices matters too thinly. I view the
Turnley case as an
example of Sullivan Rule 5: the overt act supporting the conspiracy cannot be
the very same act as the crime that is the object of the
conspiracy. Turnleys restraint of the victim was the act by which he
participated in the murder. Similarly, Richardson was governed by Sullivan Rule 3
because his act of battery constituted an element of the robbery as a
C felony by reason of his use of force. Richardson, 717 N.E.2d
at 55 (Sullivan, J., concurring).
The absence of a license is not an element, but rather its
presence is an affirmative defense. Washington v. State, 517 N.E.2d 77, 79