Attorneys for Appellee

Steve Carter
Attorney General of Indiana

Christopher L. Lafuse
Deputy Attorney General
Indianapolis, IN

Appellant (Defendant below),

                       v.
                        

                       STATE OF INDIANA,
         Appellee (Plaintiff below  ).

)
)    Supreme Court No.
)    79S02-0104-CR-194
)
)    Ct. of Appeals No.
)    79A02-9912-CR-809
)
)
)

    Following a jury trial, Defendant was convicted of Attempted Murder, See footnote Burglary, See footnote and Confinement. See footnote The trial court entered judgment on the attempted murder and burglary verdicts and imposed an aggregate sentence of 70 years. In a memorandum decision, the Court of Appeals affirmed the convictions but vacated the sentence for burglary on grounds that imposing sentences under these circumstances for both attempted murder and burglary violated Defendant's right against double jeopardy as provided by Article I, § 14, of the Indiana Constitution. Swaynie v. State, 740 N.E.2d 594 (Ind. Ct. App. 2000) (table). We granted the State's petition to transfer. Swaynie v. State, 753 N.E.2d 10 (Ind. 2001) (table).

    As to Defendant's double jeopardy claim, he contends that his convictions and se ntencing for attempted murder and burglary violate Indiana's double jeopardy clause. The double jeopardy rule prohibits multiple punishments for the same offense. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), this Court developed a two-part test for determining whether two convictions are permissible under Indiana's double jeopardy clause. Id. at 49. A double jeopardy violation occurs when “‘the State ... proceed[s] against a person twice for the same criminal transgression.’” Hampton v. State, 719 N.E.2d 803, 809 (Ind. 1999) (quoting Richardson, 717 N.E.2d at 49). Under Richardson, “two or more offenses are the ‘same offense’ ... 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.” Richardson, 717 N.E.2d at 49. When we look to the actual evidence presented at trial, we will reverse one of the 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." Id. at 53.

    In this case, the jury was instructed that in order to convict Defendant of burglary the State was required to prove beyond a reasonable doubt that Defendant (1) knowingly or i ntentionally, (2) broke into and entered, (3) the victims' home, (4) with the intent to commit a felony, to wit, murder the woman's husband. The Court of Appeals concluded that Defendant's double jeopardy rights were violated because there was a reasonable possibility that the evidence that Defendant strangled the husband was used by the jury to establish both the essential elements of the attempted murder charge and the intent-to-commit-murder element of the burglary charge.

    We hold that there is no Indiana double jeopardy violation in these circumstances. The criminal transgression addressed by the proscription on burglary is the breaking into and entering of a building or structure of another person with the intent to commit a felony. Thus, the criminal transgression of burglary is committed by a person intending to commit an underlying felony at the moment the building or structure is broken into and entered. The person's culpability is established at the point of entry regardless of whether the underlying intended felony is ever completed. Indeed, a person who breaks and enters without any i ntent to commit an underlying felony is not guilty of burglary. Because burglary and the underlying intended felony (if committed) are separate criminal transgressions, Richardson does not prohibit conviction and sentencing for both.

    At least two of our post- Richardson decisions illustrate this point. In Johnson v. State, where the same evidence that supported Johnson's murder conviction was also used to elevate Johnson's burglary conviction to a Class A felony, we held that the Class A enhancement was invalid but that this did “not entitle Johnson to escape punishment for the burglary of which he was convicted.” 749 N.E.2d 1103, 1108 (Ind. 2001). See footnote A similar point is made in Mickens v. State where Mickens was convicted of both murder and carrying a handgun without a license. Because he used to handgun to commit the murder, he argued that Richardson's “actual evidence” test prohibited conviction and punishment on both counts. We rejected his claim that he was being punished for the same criminal transgression, noting “[c]arrying the gun along the street was one crime and using it was another.” 742 N.E.2d 927, 931 (Ind. 2001).

    Here, breaking into and entering the victims' home with intent to kill the husband was one criminal transgression and attempting to kill him was another just as in Johnson and Mickens. Defendant was not entitled to relief under Richardson.