ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
David P. Freund Christopher L. Lafuse
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
INDIANA SUPREME COURT
APPEAL FROM THE CLAY CIRCUIT COURT
The Honorable Ernest E. Yelton, Judge
Cause No. 11C01-9702-CF-11
August 19, 2002
The defendant, Richard Vestal, was convicted of burglary as a class C felony
and theft as a class D felony.See footnote On appeal, the Court of
Appeals rejected the defendant's double jeopardy claim but remanded for an indigency hearing
to determine responsibility for payment of costs.
Vestal v. State, 745 N.E.2d
249 (Ind. Ct. App. 2001). The defendant seeks transfer. Pursuant to
Ind.Appellate Rule 58(A),
See footnote we grant transfer vacating Part I of the opinion of
the Court of Appeals but summarily affirming Part II of its opinion.
Citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the defendant contends that applying the actual evidence test, his convictions for burglary and theft violate Article 1 Section 14, the Double Jeopardy Clause of the Indiana Constitution. See footnote The defendant contends that under the jury instructions, "the jury had to find the exact same facts" to convict him of both burglary and theft. Br. of Defendant-Appellant at 11. In Richardson, we explained that two offenses are the "same offense" in violation of the Indiana Double Jeopardy Clause 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." 717 N.E.2d at 49. 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 the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 53.
Here the evidence established that, while drinking with his son in Terre Haute, Indiana, the defendant asked his son if he wanted to make some money. The son answered affirmatively, and the defendant drove the two of them to the Bottle Shop liquor store in Brazil, Indiana, in the early morning hours of January 25, 1997. The defendant parked his truck nearby, broke a store window, and pried the door open with a crowbar. Without the owner's permission, both the defendant and his son entered and took whiskey, cases of beer, cartons of cigarettes, miniature bottles of vodka, and almost $100 in cash, loaded the goods in the defendant's truck, and then returned to Terre Haute, placing the stolen goods in the defendant's bedroom.
The trial commenced and concluded in a single day. The jury's consideration of the evidence was guided by preliminary and final instructions that informed the jury of the content of the charging information, See footnote the statutory definitions of the offenses, and listed the elements required to be proven by the State.See footnote
We find that there is no reasonable possibility that the jury used the same evidentiary facts to establish the essential elements of both burglary and theft. The evidentiary facts establishing the commission of theft (removing goods and cash from the liquor store with the intent to deprive the owner of its use or value) do not also establish that the defendant broke and entered the store. Similarly, the evidentiary facts establishing the commission of burglary (discussing desire to get money and then driving from Terre Haute to Brazil in the early morning hours and using crowbar to break into and enter liquor store) do not also establish that the defendant exerted control over and removed goods and cash from the store.
The defendant argues that the final instruction enumerating the elements of burglary required the jury not only to find that that he entered the liquor store with the intent to commit theft but also to find that he exerted unauthorized control over specific property with the intent to deprive the owner of its value or use. To the contrary, the words in the instruction following "to-wit:"See footnote merely describe the theft intended and did not compel the jury to find the completed theft as an element of the burglary.
In support of his claim of double jeopardy under the actual evidence test, the defendant cites Marcum v. State, 725 N.E.2d 852 (Ind. 2000), in which we vacated an auto theft conviction because there was "at least a reasonable possibility, if not a near certainty, that the jury used the same evidentiary fact . . . to prove an essential element of conspiracy to commit burglary and also the essential elements of the auto theft . . . ." Id. at 864. We reached that reasoned conclusion because the jury instructions on the conspiracy offense required the jury to use the specific facts of the auto theft to constitute the overt act element of the conspiracy. Unlike Marcum, the present case presents separate evidence of the defendant's intent at the time of the breaking and entering. In addition, the Marcum conspiracy instruction informed the jury that proof of the completed auto theft was the overt act of the conspiracy, whereas, in the present case, the instructions did not direct the jury to find the elements of the completed theft in order to establish the defendant's intent at the time of the breaking and entering.
The defendant has not established a reasonable possibility that the jury used the same evidentiary facts to convict the defendant of two offenses. Considering the abundant evidence presented at trialthe defendant asking his son if he wanted to make some money, driving to Brazil in the middle of the night, going to the Bottle Shop, taking out the crowbar and breaking a window and prying open the door, and entering the storewe decline his claim that the evidence used by the jury to establish the commission of burglary was also used to establish theft, in violation of the Indiana Double Jeopardy Clause.
We grant transfer, thereby vacating the opinion of the Court of Appeals as to its discussion of double jeopardy, but summarily affirm the Court of Appeals as to its resolution of other issues and its remand to the trial court accordingly. The defendant's convictions are affirmed.
SHEPARD, C.J., and RUCKER, J., concur. SULLIVAN, J., concurs in result.
BOEHM, J., concurs in result with separate opinion.