ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY BOWES KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
vs. ) No. 49A02-0002-CR-62
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9812-CF-1911594
June 20, 2000
OPINION - FOR PUBLICATION
Appellant-defendant Raymond Vanzandt appeals his convictions for Robbery,
See footnote a class B felony, Carrying
a Handgun Without a License,See footnote a class A misdemeanor and two counts of
Criminal Confinement,See footnote class B felonies. Specifically, he contends that the trial court
improperly allowed identification testimony, denied his motion for a mistrial, and imposed multiple
sentences for a single offense.
The facts most favorable to the verdict reveal that Vanzandt entered Jacks
Pizza at 3940 South Keystone in Indianapolis at approximately 10:40 p.m. on December
6, 1998. He approached the employee behind the counter, Assistant Manager Kathryn
Remington (Remington), and indicated that he needed cab service and a drink.
Philip Kite (Kite), the other employee on duty, produced a telephone directory and
Remington tried without success to find a telephone number for cab service.
Remington went into a back room to obtain a second telephone directory.
When she returned, she observed Vanzandt holding Kite at gunpoint.
Vanzandt initially ordered both employees to get down on the floor, but soon
ordered Kite to get up and open the cash register. Kite emptied
the cash register, gave the money to Vanzandt, and laid down on the
floor once again. Vanzandt asked if there was additional money on the
premises but when Kite offered money from his own pocket, Vanzandt refused to
take it. Vanzandt then inquired about keys to a vehicle parked in
front of the store. Kite replied that the keys were in the
ignition. After pointing the gun at Remington and Kite and ordering them
to remain on the floor, Vanzandt left the store and drove away in
Remington and Kite immediately reported the robbery and provided a description of the
robber and the missing vehicle as well as a tape from the stores
video camera. Vanzandt was soon apprehended at a nearby Dollar Inn.
Vanzandt was charged with robbery, two counts of confinement and carrying a handgun
without a license. At the conclusion of a jury trial that commenced
on August 23, 1999, he was convicted of all charges.
Vanzandt was subsequently determined to be an habitual offender. The
trial court imposed upon Vanzandt a twenty year sentence for robbery, a twenty
year sentence for confinement of Kite, enhanced by thirty years because of his
habitual offender status, and a twenty year sentence for confinement of Remington.
Vanzandt now appeals.
DISCUSSION AND DECISION
I. Admission of Identification Testimony
Vanzandt first contends that any testimony from Remington and Kite identifying Vanzandt as
the robber should have been excluded. Specifically, he claims that Kite failed
to select Vanzandts photograph from the first photographic array presented to him and
ultimately identified Vanzandt only as a result of a second, unduly suggestive photographic
Due process of law under the Fourteenth Amendment to the United States Constitution
requires suppression of testimony concerning a pre-trial identification when the procedure employed is
impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999).
A photographic array is impermissibly suggestive if it raises a substantial likelihood of
misidentification given the totality of the circumstances. Id. Factors to be
considered in evaluating the likelihood of a misidentification include (1) the opportunity of
the witness to view the criminal at the time of the crime, (2)
the witnesss degree of attention, (3) the accuracy of the witnesss prior description
of the criminal, and (4) the level of certainty demonstrated by the witness.
Remington testified that Vanzandt approached the pizza store counter where she was
working, placed a drink order and ostensibly waited for cab service. R. at
180. Thus, she was able to observe Vanzandt face-to-face for a period
of approximately five minutes before the commission of the robbery. She testified
to her certainty that her identification of Vanzandt was correct. R. at
200. Kite testified that he attempted to assist Vanzandt in the pizza
store and got a decent look at him both before and after Vanzandt
pulled a gun. R. at 240. Indianapolis Police Officer Kim Cissell,
the officer first reporting to the crime scene, testified that Remington and Kite
provided a detailed description of Vanzandt including race, height, weight, hairstyle and particular
items of clothing. R. at 306.
Moreover, the record does not support Vanzandts contention that Kite initially failed to
select his photograph from a photographic array. Kite testified to his belief
that he selected a photograph of someone other than Vanzandt in the
first photographic array, but admitted that his suspicion was not confirmed or denied
by the officer present. R. at 240. Indianapolis Police Officer Barry
Jeffries then testified that Kite had actually selected a photograph of Vanzandt from
the first photographic array. R. at 356.
The totality of the circumstances do not lead to the conclusion that impermissibly
suggestive procedures likely resulted in a misidentification of Vanzandt. Thus, evidence of
the pre-trial and in-court identifications was properly admitted.
Vanzandt next claims that he was entitled to a mistrial after
Kite responded to a request to identify States Exhibit 3: Thats, I
guess you would call them mug shots. R. at 220. Outside
the presence of the jury, the trial court inquired whether Kite had any
knowledge of the photographs origin and, when Kite responded that he did not,
the court instructed the prosecutor to elicit that information during subsequent testimony.
The prosecutor did so. Additionally, the trial court instructed the jury to
disregard Kites previous response and denied the motion for mistrial.
A mistrial is an extreme remedy invoked only when no other curative measure
can rectify the situation. Kent v. State, 675 N.E.2d 332, 335 (Ind.
1996). A trial courts ruling on a motion for a mistrial is
afforded great deference on appeal because the trial court is in the best
position to evaluate the circumstances and their impact on the jury. Id.
Therefore, the trial courts determination will be reversed only where an abuse
of its discretion can be established. Hollowell v. State, 707 N.E.2d 1014,
1024 (Ind. Ct. App. 1999). To prevail, the appellant must establish that
he was placed in a position of grave peril to which he should
not have been subjected. Id. Where the jury is admonished by
the trial judge to disregard what occurred or other reasonable curative measures are
taken, ordinarily the courts refusal to grant a mistrial is not reversible error.
Walker v. State, 497 N.E.2d 543, 544 (Ind. 1986).
A verbal reference to mug shots is generally proscribed as the use of
the term may be prejudicial to a defendant. Scott v. State, 426
N.E.2d 1298, 1300 (Ind. 1981). However, the mere mention of mug shots
is not reversible error per se. Coleman v. State, 490 N.E.2d 325,
327 (Ind. 1986). Reversal is not required if the reference is unintentional
or the evidence of guilt is strong. Id.
Here, the trial court found that Kites reference to mug shots was inadvertent.
There was no deliberate attempt by the prosecution to introduce the term.
Moreover, the prosecutor elicited testimony to establish that Kite did not have
actual knowledge that the photographs in questions were or were not mug shots.
Finally, there was strong evidence of Vanzandts guilt, specifically, a videotape of the
robbery, fingerprint evidence linking Vanzandt to the robbery, and the corroborative testimony of
two victims. Vanzandt was not placed in a position of grave peril
necessitating a mistrial.
III. Double Jeopardy
Finally, Vanzandt contends that his convictions for robbery and two counts of confinement
constitute multiple punishments for the same offense in violation of IND. CONST. art
I., § 14.
See footnote He relies upon our supreme courts recent pronouncement of
the Indiana double jeopardy standard in
Richardson v. State, 717 N.E.2d 32 (Ind.
1999) to support his argument that the Indiana Constitution provides broader protection
than the federal constitutions double jeopardy provisions. Appellants brief at 8.
In Richardson, the court developed a two-part test for determining whether two convictions
are permissible. [T]wo or more offenses are the same offense in violation
of Article I, Section 14 of the Indiana Constitution if, with respect to
either the statutory elements of the charged crimes or the actual evidence used
to convict, the essential elements of one challenged offense also establish the essential
elements of another challenged offense. Id. at 49 (emphasis in original).
Consistent with the absence of a federal double jeopardy violation under the Blockburger
test, simultaneous convictions of robbery and confinement charges do not violate Indianas analogous
statutory elements test. Smith, 717 N.E.2d at 1281 (citing McIntire v. State,
717 N.E.2d 96, 99 (Ind. 1999)). However, under the second aspect of
the Indiana double jeopardy analysis, the actual evidence test, we must determine whether
each offense was established by separate and distinct facts. As explained in
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
Id. at 53.CONCLUSION
To convict Vanzandt of robbery, a Class B felony, as charged, the State
was required to prove that he knowingly, while armed with a deadly weapon,
a handgun, took property from Philip Kite by putting him in fear or
by using or threatening the use of force. R. at 22.
To convict Vanzandt of two counts of criminal confinement, a Class B felony,
as charged, the State was required to prove that he while armed with
a deadly weapon, a handgun, confined Philip Kite and Kathryn Remington, by forcing
them to lie down on the floor. R. at 22. Vanzandt
was not charged with robbery of Remington.
The evidence adduced at trial disclosed that Vanzandt, armed with a handgun, ordered
Kite and Remington to lie down on the floor while he effected his
robbery and obtained access to the getaway vehicle. With regard to Kite,
identified in the charging information as the robbery victim, compelling him to lie
on the floor is not separate and apart from the force used to
effect the robbery.
The State urges this court to affirm each of Vanzandts convictions, relying upon
Smith, wherein the appellants convictions of robbery and two counts of criminal confinement
were upheld notwithstanding his claim of a violation of the Indiana Constitutions prohibition
against double jeopardy. However, we find Smith clearly distinguishable from the instant
case. The evidence adduced in Smith established that after Smith completed the
robbery, he bound one victims hands, compelled the other victim to lead him
to the telephone, placed both victims in a closet and threatened to shoot
them if they moved. The confinement charges expressly alleged various acts of
confinement. The instruction for robbery did not require the jury to find
the existence of confinement during the robbery in order to convict for robbery.
There was actual evidence presented at trial that the jury could have
used to independently establish the essential elements of confinement apart from the robbery.
Here, the State charged that Vanzandt robbed Kite while armed with a
handgun and confined both Kite and Remington while armed with a handgun.
There is an absence of evidence to establish the essential elements of confinement
of Kite independent of the robbery of Kite. The force or threat
of force exerted by Vanzandt against Kite was that exerted to accomplish the
robbery. Vanzandt has demonstrated a reasonable possibility that the jury used the
same evidentiary facts to establish criminal confinement of Kite as a Class B
felony as it did to establish the essential elements of robbery of Kite
as a Class B felony. To remedy the resulting violation of the
Indiana Double Jeopardy Clause, we are compelled to vacate the conviction for criminal
confinement of Kite. Vanzandt was not convicted of multiple offenses against Remington
and thus does not prevail on his double jeopardy claim with regard to
his conviction for confinement of Remington.
In light of our resolution of the issues set forth above, we
conclude that Vanzandt was not denied a fair trial because of the admission
of identification testimony, nor was he entitled to a mistrial. However, the
conviction for criminal confinement of Kite was in violation of the prohibition against
double jeopardy embodied in Article I, § 14 of the Indiana Constitution.
Accordingly, we affirm the convictions for robbery and criminal confinement of Kathryn
Remington. We vacate the conviction for criminal confinement of Philip Kite and
remand with instructions to resentence in accordance with this opinion.
Affirmed in part; reversed in part; and remanded with instruction to resentence.
RILEY, J., and KIRSCH, J., concur.
IND. CODE § 35-42-5-1.
Footnote: IND. CODE § 35-47-2-1.
Footnote: IND. CODE § 35-42-3-3.
Footnote: The conviction for carrying a handgun without a license was merged with
the robbery conviction.
Footnote: Vanzandt does not argue that his convictions violate the Double Jeopardy provisions
of the United States Constitution. In
Blockburger v. United States, 284 U.S.
299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme
Court outlined the test for determining whether two or more offenses constitute the
same offense under the federal Double Jeopardy Clause: [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 an additional fact which the other does
not. This court has recently applied the Blockburger test to determine whether
a robbery conviction under I.C. § 35-42-5-1 and a criminal confinement conviction under
I.C. § 35-42-3-3 arising from contemporaneous events violated a defendants federal double jeopardy
rights. Smith v. State, 717 N.E.2d 1277 (Ind. Ct. App. 1999), trans.
denied. Upon examination of the statutory elements, the court found that both
the robbery charge and confinement charge contained at least one separate and distinct
element. The robbery charge required the State to prove that the defendant
took property from another, which is not required to prove a confinement charge,
and the confinement charge required the State to prove that the defendant confined
another person against their will, which is not required to prove a robbery
charge. Id. at 1280.