ATTORNEYS FOR APPELLANT            ATTORNEYS FOR APPELLEE
Elizabeth B. Searle                    Jeffrey A. Modisett
Karen Orr McClure                    Attorney General of Indiana
Stuart & Branigin                    
Lafayette, Indiana                    Katherine Modesitt
                            Deputy Attorney General
                            Indianapolis, Indiana

 SCOTT E. McINTIRE,                                                      )    
        Defendant-Appellant,                                                  )            
                                                                              )
        v.                                                                    )    79S00-9706-CR-381
                                                                              )                    
STATE OF INDIANA,                                                             )
        Plaintiff-Appellee.                                                   )

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                                                                     APPEAL FROM TIPPECANOE SUPERIOR COURT
                                        The Honorable Donald C. Johnson, Judge
                                       Cause No. 79D01-9608-CF-49
                                                   
                                                                                            _________________________________________________
    

    The defendant, Scott E. McIntire, was convicted of burglarySee footnote 1 as a class A felony,

criminal confinementSee footnote 2 as a class B felony, intimidationSee footnote 3 as a class C felony, and criminal recklessnessSee footnote 4 as a class D felony.See footnote 5 He was sentenced to seventy-five years (consecutive sentences of thirty years for burglary and fifteen years for criminal confinement, enhanced by thirty years upon finding that he was a habitual offender) and to six years for intimidation and to two years for criminal recklessness to run concurrently with the burglary and criminal confinement sentences.
    In this direct appeal, the defendant claims that his convictions violate the state and federal Double Jeopardy Clauses and that he was denied the effective assistance of trial counsel.

Clause, the test is whether each statutory provision “requires proof of an additional fact which the other [statutory provision] does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).
    As charged in the present case, the relevant statutory definition of criminal recklessness provides:
    A person who recklessly, knowingly, or intentionally performs . . . an act that creates a substantial risk of bodily injury to another person . . . commits criminal recklessness, a Class B misdemeanor. However, the offense is a . . . Class D felony if it is committed while armed with a deadly weapon . . . .

Ind. Code § 35-42-2-2(b) (1993 & Supp. 1996). The relevant statutory definition of burglary provides:
    A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is a . . . Class A felony if it results in either bodily injury or serious bodily injury to any person other than a defendant.

Ind. Code § 35-43-2-1 (1993)

    Each of these statutory provisions requires proof of an additional fact which the other does not. Class D felony criminal recklessness requires commission of specific conduct while armed with a deadly weapon, an element not required for class A felony burglary, which requires breaking and entering, an element not required for criminal recklessness. Thus, under Blockburger, the federal Double Jeopardy Clause is not violated by the convictions for burglary and criminal recklessness.

    Each of these statutory provisions requires proof of an additional fact which the other does not. Criminal confinement requires that the defendant confine a person, which is not required for intimidation, which requires that the defendant communicate a threat to another person, which is not required for criminal confinement. The federal Double Jeopardy Clause is thus not violated by the convictions for criminal confinement and intimidation.

multiple convictions. As discussed in our decision today in Richardson v. State, --- N.E.2d --- (Ind. 1999), two convictions may be the “same offense” in violation of this 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. Having found no violation of federal double jeopardy principles under the Blockburger test, we also find no violation under Indiana's analogous statutory elements test.
    The issue presented here is whether a double jeopardy violation is established under the second aspect of the Indiana double jeopardy analysis, the actual evidence test. As explained in Richardson:
    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.

Id. at --- (slip op. at 33-34).

    The trial evidence indicated that, at approximately 2:00 a.m. on August 15, 1996, the defendant crashed his motorcycle after driving through a mobile home park. The crash woke Roger Hilt and Melissa Lovell, who called 911, believing that the defendant, whom they knew, may have been hurt. The defendant left the scene after angrily yelling at Lovell to get off the phone. When the sheriff arrived, Hilt identified the motorcycle as belonging to the defendant and signed a statement concerning the accident. About an

hour after the police had left, Hilt, Lovell, and her seven-year-old son, Joshua, were sitting at the breakfast table in their mobile home when the defendant, wearing a ski mask, burst in through their screen door. The defendant demanded to know why they had called the police and signed the statement against him because the defendant was under house arrest and could have his probation revoked as a result of the statement. While screaming and yelling, the defendant hit Hilt on the head with a baseball bat, causing a gash that required hospital treatment and stitches. Hilt crawled under the kitchen table while the defendant continued to hit the kitchen counters with the bat. When Lovell attempted to escape, the defendant swung the bat at her, told her that she “wasn't going anywhere,” “pushed the bat in [her] chest and he put it in [her] son's face on his cheek,” and threatened to kill all of them. Record at 337. The defendant again began hitting the kitchen table, trying to make Hilt come out from underneath it, and struck Hilt again with the baseball bat, this time hitting his foot. We find no evidence of resulting injury to his foot. After the defendant knocked over the kitchen table, he and Hilt struggled over the baseball bat, and the defendant told Hilt that he had a gun and would shoot Hilt. While they struggled, Lovell helped Joshua break free and told him to run outside for help. Realizing Joshua was getting away, the defendant demanded that Lovell call Joshua back, stating that he was going to kill them all if she did not make Joshua return.
    The defendant claims that the Indiana Double Jeopardy Clause was violated. He argues that, in establishing that the defendant caused Hilt bodily injury by hitting him on the head with the baseball bat, thus elevating the burglary charge to a class A felony, the

State necessarily established that the defendant subjected Hilt to a substantial risk of bodily injury and, therefore, that the criminal recklessness conviction violates the Indiana Double Jeopardy Clause.
    The defendant points to a jury instruction that described elements of criminal recklessness different from those presented in the charging information. As noted in Richardson, --- N.E.2d at --- n.48 (slip op. at 36 n.48), our identification of the evidentiary facts used by the jury in reaching its decisions may be informed by consideration of the final jury instructions and argument of counsel. At the conclusion of the evidence, the jury was instructed as to the allegations of the charging informations, omitting formal parts. The information charging class D felony criminal recklessness, as read to the jury, asserted that the defendant “created a substantial risk of bodily injury, committed while armed with a deadly weapon.” Record at 104. A separate instruction advised the jury that a baseball bat can be a “deadly weapon.” Record at 113. However, as noted by the defendant, the jury was also instructed, without objection, that the crime of criminal recklessness as a class D felony is defined by statute to be committed when a person “recklessly, knowingly, or intentionally inflicts serious bodily injury on another person.” Record at 109. This instruction similarly advised the jury that, in order to convict the defendant of the charge of criminal recklessness as a class D felony, the State was required to prove that the defendant recklessly, knowingly, or intentionally “inflicted serious bodily injury on Roger Hilt.” Id.
    The statutory definition of criminal recklessness as a class D felony presents two

alternative sets of essential elements. A person commits criminal recklessness as a class D felony when he recklessly, knowingly, or intentionally performs an act that either: (1) “creates a substantial risk of bodily injury to another person . . . if committed while armed with a deadly weapon;”See footnote 7 or (2) “inflicts serious bodily injury on another person.”See footnote 8 The instruction reciting the charging information described the first alternative definition of the offense_the creation of a substantial risk of bodily injury while armed with a deadly weapon. The instruction listing the elements described the second alternative definition of the offense_the actual infliction of serious bodily injury. Thus, the jury was presented with both alternative sets of essential elements for the offense of criminal recklessness as a class D felony. In light of these jury instructions, we find that the defendant has demonstrated a reasonable possibility that the jury used the same evidentiary facts (Hilt's head injury caused by the baseball bat) to establish the essential elements of both class A burglary and class D criminal recklessness. To rectify the resulting violation of the Indiana Double Jeopardy Clause, we elect to vacate the conviction for class D criminal recklessness.
    With respect to the defendant's next double jeopardy claim, we apply the actual evidence test to determine whether the jury used evidence that the defendant pushed the baseball bat into Lovell's chest to establish the convictions for both criminal confinement

of Lovell as a class B felony (confinement while armed with a deadly weapon) and the intimidation of Lovell as a class C felony (threatening with intent to cause fear of retaliation). The defendant has demonstrated a reasonable possibility that the jury used the same evidentiary facts to establish criminal confinement as a class B felony as it did to establish the essential elements of intimidation as a class C felony. The resulting violation of the Indiana Double Jeopardy Clause requires that we vacate one of these two convictions. We elect to vacate the conviction and sentence for intimidation.

requires a court to consider the overall performance of counsel and the reasonable probability that the alleged error affected the outcome. Id. at 1218-19. We held that a defendant may decide to raise a claim of ineffectiveness of counsel on direct appeal, but, if so raised, “the issue will be foreclosed from collateral review.” Woods, 701 N.E.2d at 1220.
    While Woods is clearly applicable prospectively, it did not represent existing case law at the time this appeal was filed. As Woods expressly noted, prior decisions of this Court (two of which involved trial counsel's alleged failure to call alibi witnesses) have held that a post-conviction claim of ineffective assistance of trial counsel is waived if not asserted on direct appeal. Woods, 701 N.E.2d at 1214. See Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995); Williams v. State, 464 N.E.2d 893, 894 (Ind. 1984); Hollonquest v. State, 432 N.E.2d 37, 39 (Ind. 1982).
    In the present case, the crimes for which the defendant was convicted were perpetrated by a masked assailant. Identity was thus a principal issue. The defendant's claim of ineffective assistance of counsel significantly reflects on this issue. The defendant argues that, despite the filing of a notice of alibi and successful motion in limine restricting prior bad act evidence, his defense counsel failed to present available witnesses on the alibi issue and properly to challenge evidence regarding the assailant's identity and the defendant's character and motive. We believe it preferable for the defendant to adjudicate his claim of ineffective assistance of trial counsel in a post- conviction relief proceeding, which would allow the parties to develop and the reviewing

court to consider facts outside the present trial record. Appellate counsel, limited by existing case law and without the benefit of Woods, attempted to present these issues, but we decline to address the issue of ineffective assistance of trial counsel in this direct appeal.

class B felony are affirmed. The convictions and sentences for intimidation and criminal recklessness are vacated. This cause is remanded to the trial court to correct the sentence specifically by assigning the habitual offender enhancement.
    SHEPARD, C.J., and SULLIVAN, J. concur. BOEHM, J., concurs in result with separate opinion in which SELBY, J., concurs.