ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE
John P. Wilson                    Karen Freeman-Wilson
Greenwood, Indiana                    Attorney General of Indiana

                            Arthur Thaddeus Perry
                            Deputy Attorney General
                            Indianapolis, Indiana

A jury found the defendant, J.L. Spivey, guilty of murder (felony murder), See footnote burglary as a class A felony, See footnote and conspiracy to commit burglary See footnote in connection with the death of John Hughes in Greenwood, Indiana, in June of 1997. Finding that Count II, charging burglary "must be merged" into Count I, charging felony murder, the trial court only imposed sentences for the defendant's convictions for murder and conspiracy to commit burglary. Record at 310, 326. This direct appeal presents two claims: 1) that the defendant's convictions violate the Double Jeopardy Clause of the Indiana Constitution and 2) that the trial court erred in limiting cross-examination. We affirm his convictions.

Record at 217 (Court's Final Instruction 11). Even viewing the evidence favorable to the defendant, it established that he participated in the burglary and that in the course of the burglary both the defendant and his accomplice struck the elderly victim who died as a result. In light of the information before the jury, the additional evidence of motive for Singleton is of little consequence. We conclude that the trial court did not err in limiting cross-examination, but even if it did, such error would be harmless beyond a reasonable doubt.
    The judgment of the trial court is affirmed.

SHEPARD, C.J., and BOEHM, J., concur.

RUCKER, J., concurs in part and dissents in part with separate opinion, in which SULLIVAN, J., joins.

JOHN P. WILSON                    KAREN M. FREEMAN-WILSON
Greenwood, Indiana                    Attorney General of Indiana

                             ARTHUR THADDEUS PERRY
                            Deputy Attorney General
                            Indianapolis, Indiana

J. L. SPIVEY, JR.,                    )
                                        )
    Appellant-Defendant,                )
                                        )    Supreme Court Cause Number
        v.                              )    41S00-0002-CR-76
                                        )
STATE OF INDIANA,                       )
                                        )
    Appellee-Plaintiff.                 )

    I agree with the majority that Spivey’s convictions for felony murder and conspiracy to commit burglary do not violate Indiana’s Double Jeopardy Clause as articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). However, Indiana common law dictates that Spivey’s conviction for conspiracy to commit burglary should be vacated.
In a unanimous opinion, we hold today that this Court has “long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.” Pierce v. State, __ N.E.2d __, No. 49S00-0011-CR-710 (Ind. Jan. 29, 2002). It is true there is case authority standing for the proposition that a defendant may be convicted of both conspiracy to commit a felony and the underlying felony. See, e.g., Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999) (robbery and conspiracy to commit robbery), cert. denied, 530 U.S. 1247 (2000); Witte v. State, 550 N.E.2d 68, 71 (Ind. 1990) (murder and conspiracy to commit murder); Sparks v. State, 537 N.E.2d 1179, 1184 (Ind. 1989) (burglary and conspiracy to commit burglary). However, consistent with today’s holding in Pierce, this Court has not allowed to stand a conviction for conspiracy where the overt act that constitutes an element of the conspiracy is the same act as another crime for which the defendant has already been convicted. See, e.g., Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996) (agreeing that the defendant’s convictions for both conspiracy to deal in cocaine and dealing in cocaine violated principles of double jeopardy because “the overt act in furtherance of the conspiracy could have been the same act as required to convict [the defendant] for dealing in cocaine.”); Buie v. State, 633 N.E.2d 250, 261 (Ind. 1994) See footnote (holding that where the overt act element of a conspiracy charge is the underlying offense, convictions on both the conspiracy and underlying offense cannot stand); Thompson v. State, 259 Ind. 587, 290 N.E.2d 724, 727 (1972) (holding “that before the court may enter judgment and impose sentence upon multiple counts, the facts giving rise to the various offenses must be independently supportable, separate and distinct.”).
In this case Spivey was charged with burglary, felony murder—with burglary alleged as the underlying felony, and conspiracy to commit burglary. The evidence shows and the State concedes that the only overt act supporting the conspiracy charge was the burglary itself. Although the trial court entered no sentence on the burglary conviction, that was not sufficient in my view. Left standing was the conspiracy charge, the overt act for which Spivey has already been punished by reason of the felony murder conviction. If not under the Richardson double jeopardy test, See footnote then under this Court’s traditional common law scheme, the convictions for both felony murder and conspiracy cannot stand. I would therefore vacate Spivey’s conviction for conspiracy to commit burglary. In all other respects I concur with the majority.

SULLIVAN, J., concurs.