ATTORNEY FOR APPELLANT
Teresa D. Harper
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
BRYSON BURNETT, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9905-CR-287
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9808-CF-136936
ON DIRECT APPEAL
October 5, 2000
Bryson A. Burnett was convicted of robbery, two counts of criminal confinement, aggravated
battery, carrying a handgun without a license, pointing a firearm, auto theft, theft,
and being a habitual offender. He was sentenced to 100 years imprisonment.
In this direct appeal, Burnett contends that (1) the trial court abused
its discretion in giving the States instruction on eyewitness testimony; (2) there is
insufficient evidence to sustain the habitual offender enhancement; and (3) his convictions for
both robbery and aggravated battery and for pointing a firearm and criminal confinement
violate the Indiana Double Jeopardy Clause. We affirm the judgment of the
trial court in part and remand with instructions to vacate the convictions for
aggravated battery and pointing a firearm.
Factual and Procedural Background
On August 17, 1998, Angila Plummer was talking with a neighbor outside her
home when Burnett approached her and asked if she remembered him. When
Angila said that she did not, Burnett told her that his name was
Andre and he had lived across the street the preceding summer. Approximately
fifteen minutes later, Burnett knocked on Angilas door and asked to use the
phone. Angila agreed and, after making a call, Burnett thanked her and
left the house.
Burnett returned later that afternoon and again asked to use the phone.
After finishing his call, Burnett turned on Angila with a knife, stabbed her
in the neck and eyebrow, and then repeatedly struck her in the eye.
Burnett took a cellular phone, a beeper, and money from Angilas purse.
Burnett next drew a handgun from his pocket, pointed it at Angilas
four-year-old daughter, Heather, and told Heather to go upstairs, which she did.
Heather came back downstairs and Burnett ordered Angila to take her upstairs.
Burnett then left the house with the keys to Angilas car and Angila
called the police.
Early the next morning, Burnett walked into a convenience store, yelled, Hello, beautiful
people, removed almost two hundred dollars from the cash register, and drove away.
A clerk wrote down the license plate number and reported the incident
to police, who identified the car used in the robbery as Angilas.
Later that afternoon, the clerk saw Burnett near her home, recognized his voice
when he yelled at her son, and called the police.
Officers arresting Burnett found him with two knives and a check written on
Angilas account. The clerk subsequently identified Burnett from a photo array as
the store robber. Burnett then admitted to taking money from the convenience
store and money and car keys from Angilas house, but claimed that Angila
had been injured by a letter opener that ended up in her neck.
Burnett was charged with robbery, two counts of criminal confinement, attempted murder,
carrying a handgun without a license, pointing a firearm, auto theft, theft and
being a habitual offender. He was convicted of aggravated battery as a
lesser included offense of attempted murder and on all other counts. An
aggregate sentence of 100 years was imposed.
I. Jury Instruction
Burnett first claims that the trial court abused its discretion by giving the
States Tendered Proposed Instruction No. 5, which read: A conviction may be
sustained by the uncorroborated testimony of a single eyewitness. Burnett acknowledges that
this instruction has been upheld in the past by this Court, but contends
that it is time to revisit the issue because the instruction unfairly focused
attention on the testimony of one witness, Angila.
Burnett argues that giving
this instruction was especially influential here, where Burnetts version of the crime was
relayed to the jury through the testimony of a police officer.
Madden v. State, this Court upheld a similar instruction where the defendant
challenged that the instruction overemphasize[d] the testimony of the victim. 549 N.E.2d
1030, 1033 (Ind. 1990). This Court approved of the instruction in cases
where the victim was the only testifying witness to the crime because it
was unrealistic to take the position that it was necessary for the prosecuting
witnesss testimony to be corroborated by other evidence. Id. In
this case, as in Madden, the victim was the only testifying eyewitness to
each crime. There were no other instructions on point and this instruction
did not unfairly focus attention on Angilas testimony. The trial court did
not abuse its discretion in giving it. See id. (Inasmuch as the
instruction was not repeated in other instructions, we cannot say that it was
repetitious or unduly emphasized a particular aspect of the case.).
II. Sufficiency of the Evidence
Burnett also challenges the sufficiency of the evidence to support the habitual offender
enhancement. Specifically, he contends that the habitual offender finding must be set
aside because the State did not prove that the prior convictions were unrelated,
although his argument boils down to a claim of lack of proof that
the supporting convictions were prior to the current one.
Our standard of review for sufficiency claims is well settled. We do
not reweigh evidence or assess the credibility of witnesses. Rather, we look
to the evidence and reasonable inferences drawn therefrom that support the verdict and
will affirm the conviction if there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt.
v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
To prove that a defendant is a habitual offender, the State must prove
that the person had accumulated two (2) prior unrelated felony convictions. Ind.
Code § 35-50-2-8(d) (1998).
[T]o sustain a sentence under [the statute], the State must show that the
defendant had been twice convicted and twice sentenced for felonies, that the commission
of the second offense was subsequent to his having been sentenced upon the
first and that the commission of the principal offense upon which the enhanced
punishment is being sought was subsequent to his having been sentenced upon the
Steelman v. State, 486 N.E.2d 523, 526 (Ind. 1985) (quoting Miller v. State,
275 Ind. 454, 459, 417 N.E.2d 339, 342 (1981)). Burnett argues that
because there is no commission date for the second offense in the record,
the State has not proven that the second offense occurred after the sentencing
for the first.
To prove the habitual offender enhancement, the State first introduced an arrest report
dated June 27, 1985, which showed that Burnett had been arrested for burglary,
robbery, confinement, and theft. The State then introduced an abstract of judgment
and minute entry, which showed that Burnett pleaded guilty to two of those
crimes and was sentenced on October 17, 1985. The State attempted to
prove the second felony conviction with an arrest report from August 9, 1993,
for criminal confinement and burglary. Finally, the State introduced an abstract of
judgment and order of probation, which showed Burnett was convicted and sentenced for
criminal recklessness under the same cause number on December 8, 1993.
Although the better practice is to offer direct evidence of the commission date
of the second offense, a reasonable jury could have concluded that Burnett committed
his second felony after receiving his sentence for the first. The evidence
presented included that the arrest date of the second offense was almost eight
years after the sentencing for the first offense.
See Clark v. State,
597 N.E.2d 4, 12 (Ind. Ct. App. 1992) (inclusion of arrest dates and
sentencing dates was sufficient to prove the habitual offender enhancement). From this
it can be inferred that the criminal recklessness must have been committed after
August 1988 because the statute of limitations for a Class D felony is
five years. Ind. Code § 35-41-4-2 (1998). These are, of course,
matters within the knowledge of the defendant, and there was no evidence suggesting
the commission date was earlier than 1988. This record contains sufficient evidence
to support the habitual offender finding.
III. Double Jeopardy
Burnett finally contends that his multiple convictions violate the Indiana Double Jeopardy Clause.
Ind. Const. art. I, § 14. Specifically, Burnett argues that
he cannot be convicted of both (1) robbery as a Class A felony
and aggravated battery and (2) pointing a firearm and criminal confinement. The
Indiana Double Jeopardy Clause prohibits multiple convictions 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.
Richardson v. State, 717 N.E.2d 32,
53 (Ind. 1999); accord Wise v. State, 719 N.E.2d 1192, 1201 (Ind. 1999).
The Class A felony robbery charge, which was read to the jury as
part of the preliminary instructions, alleged that Burnett took items from the person
of Angila by force and threats of force which resulted in serious bodily
injury, i.e., a laceration to the head and a stab wound to the
neck of Angila Plummer. The lesser included aggravated battery, a Class B
felony, was based on the attempted murder charge which alleged that Burnett attempted
to kill Angila by stabbing [her] in the neck. In its closing
argument, the State told the jury that stabbing someone in the neck creates
a substantial risk of death for the Class A robbery and that the
substantial step in the attempted murder of Angila was when [Burnett] put the
knife or letter opener into Angila Plummers neck. Based on these instructions
and argument, there is a reasonable possibility that the same evidence used by
the jury to establish the essential elements of aggravated battery was also included
among the evidence establishing the essential elements of robbery as a Class A
felony. Thus, Burnetts dual convictions for robbery as a Class A felony
and aggravated battery violate the Indiana Double Jeopardy Clause. Accordingly, we remand
to the trial court with instructions to vacate the aggravated battery conviction.
Burnett also contends that his convictions for pointing a firearm and criminal confinement
violate the Indiana Double Jeopardy Clause. The preliminary instructions for pointing a
firearm stated that Burnett did knowingly point a firearm, that is: a
handgun at another person, namely: Heather Plummer. The criminal confinement charge
stated that Burnett point[ed] said handgun at Heather Plummer. The evidence at
trial showed that Burnett pointed the handgun at Heather once and told her
to go upstairs. Later, when he ordered both Angila and Heather upstairs,
the undisputed evidence was that Burnetts gun was in his pocket, and was
not pointed at either Angila or Heather. During closing argument, the State
contended that Burnett confined Angila and Heather when he held a gun on
[Heather]. Although there was evidence presented at trial that could have supported
both the pointing a firearm charge and the criminal confinement charge, the inquiry
does not end there. The preliminary instructions relied on the same act,
pointing the gun at Heather, as the basis for the pointing a firearm
and confinement charge, and the State pointed to this same evidence in its
closing argument. Once again there is a reasonable possibility that the same
evidence used by the jury to establish pointing a firearm was also included
among the evidence establishing the essential elements of the criminal confinement of Heather.
Accordingly, the pointing a firearm charge must be vacated.
The judgment of the trial court is affirmed in part. This case
is remanded to the trial court with instructions to vacate the convictions for
aggravated battery and pointing a firearm.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Although Burnett was also convicted of theft in connection with the convenience
store incident, he does not contend that the instruction overemphasized the testimony of
the clerk of the store, who was also a single testifying eyewitness to
one of Burnetts crimes.
In this respect, this case differs from Steelman, where this Court raised
the issue of the defendants habitual offender enhancement sua sponte. In Steelman,
the only information regarding the second offense was the conviction and sentencing dates,
and there was no proof of commission of the crime or the time
of arrest. 486 N.E.2d at 525-526.
Burnett also argues that one of his criminal confinement convictions should be
vacated because pointing the gun at Heather was an element of each.
However, this Court has previously held that multiple confinement convictions do not violate
double jeopardy where there are multiple victims. Cf. Parks v. State, 489
N.E.2d 515, 516 (Ind. 1986) (pre-Richardson case). Here, Burnett confined both Angila
and Heather. Therefore, there is no double jeopardy violation.