ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAWN R. ELSTON JEFFREY A. MODISETT
Chief Public Defender Attorney General of Indiana
ANDREW L. HEDGES
Deputy Attorney General
ANTHONY TYRONE THOMPSON, ) ) Appellant-Defendant, ) ) vs. ) No. 10A04-9601-CR-8 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
II. Whether his conviction violates his constitutional protection against
of cash, and another gun from Burton's bedroom. While Burton was trying to crawl towards
the door, Thompson fired a shot at him, which passed through Burton's left arm and
penetrated his upper left chest.
At the time of the incident, Thompson was living with Kathy Rankin ("Rankin"), his former step-mother and aunt.See footnote 4 The next day, Thompson told Rankin what had happened and she suggested that he tell the police about his involvement. Rankin called Detective Hall ("Hall") and told him that Thompson wanted to make a statement. On March 20, Hall went to Thompson's mother's home to obtain her consent to interview her son. She signed a waiver of rights form, but did not want to be present during Thompson's statement. Hall then went to Rankin's home and requested that Thompson come to the police station. At the station, Thompson requested that Rankin be present. When Rankin arrived, Thompson signed the waiver of rights form that his mother had previously signed and Rankin signed the form as a witness. Thompson then gave a statement which was tape-recorded. On March 28, 1995, an arrest warrant was issued charging Thompson with attempted murder, robbery, and burglary.
Prior to trial, Thompson filed a motion to suppress the statement, arguing that he did not voluntarily, knowingly, and intelligently waive his right to remain silent. Thompson also contended that his questioning by the police violated the juvenile waiver statute, Ind. Code
§ 31-32-5-1. His motion was denied and Thompson was tried and found guilty by a jury of
attempted murder, robbery, and burglary.
However, "[i]f a juvenile, who is not in custody, gives a statement to police, neither the safeguards of the MirandaSee footnote 5 warning nor IND. CODE 31-6-7-3 [now § 31-32-5-1] applies to him under most circumstances." Sevion v. State, 620 N.E.2d 736, 738 (Ind. Ct. App. 1993) (emphasis in original). For an interrogation to be custodial in nature, one does not necessarily have to be under arrest. Id. To be custodial in the non-arrest context, the interrogation must commence after the person's freedom of action has been deprived in any
significant way. Id. The law enforcement officer's duty to give Miranda warnings does not
attach unless "there has been such a restriction on a person's freedom as to render him 'in
custody.'" Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995) (quoting Oregon v.
Mathiason, 429 U.S. 492, 495 (1977)).
Here, Thompson was not in formal custody nor was his freedom of action limited at the time he gave his statement to the police. After Thompson had been advised of his rights and had signed the waiver of rights form, he agreed that he had voluntarily come to the police station to make a statement. In addition, he stated that he did not feel like a prisoner and had not been promised anything. Any failure on Hall's part to strictly follow the requirements of Ind. Code § 31-32-5-1 would not render Thompson's statement inadmissible. The trial court did not err in denying Thompson's motion to suppress the statement.
to be drawn therefrom which support the judgment. Id. When there is substantial evidence
of probative value to support the conviction, the judgment will not be disturbed. Id.
In order to meet its burden on the burglary count, the State had to prove beyond a reasonable doubt that Thompson "[broke] and enter[ed] the building or structure of another person, with intent to commit a felony in it . . . result[ing] in either bodily injury or serious bodily injury." Ind. Code § 35-43-2-1. In order to establish that a breaking has occurred, the State need only introduce evidence from which the trier of fact could reasonably infer that the slightest force was used to gain unauthorized entry. Bellmore v. State, 602 N.E.2d 111, 124 (Ind. 1992). "Breaking is proved by showing that even slight force was used to gain unauthorized entry including opening an unlocked door." Henley v. State, 522 N.E.2d 376, 379 (Ind. 1988). Thompson used force to remove the screen and open the window. Maurice did not consent to the entry; indeed, Thompson testified that Maurice did not know of the plan to rob Burton. We conclude that there is substantial evidence of probative value to sustain the verdict for burglary.
analysis requires us to discern whether a petitioner has been convicted or punished more than
once for the 'same offense.'" Gregory-Bey v. State, 669 N.E.2d 154, 157 (Ind. 1996).
In analyzing whether two offenses are the same, we employ the test announced in Blockburger v. United States, 284 U.S. 299, 304 (1932): "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."
Gregory-Bey, 669 N.E.2d at 157. We do not look to the manner in which the offense is
charged. Carter v. State, 686 N.E.2d 834, 838 (Ind. 1997). Rather we determine whether
each statute requires proof of an additional fact which the other does not. Id.
It is clear that each statute requires proof of an additional fact which the other does not. Attempted murder requires a substantial step towards a killing; class A burglary requires that a breaking occur, resulting in bodily injury. We find no double jeopardy violation.See footnote 8 Moreover, Burton suffered two injuries: being beaten over the head with a crowbar, and being shot in the chest. It is reasonable to infer that the enhancement of the burglary charge was based upon Burton's head injury.
DARDEN, J., and STATON, J., concur.
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