ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SARAH L. NAGY KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
JANET L. PARSANKO
Deputy Attorney General
SUPREME COURT OF INDIANA
STEVEN L. KILPATRICK,
) Supreme Court Cause Number
v. ) 49S00-0003-CR-185
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Diane M. Moore, Judge
Cause No. 49G04-9901-CF-9940
ON DIRECT APPEAL
April 11, 2001
After a trial by jury Steven L. Kilpatrick was convicted of murder, attempted
robbery as a Class A felony, aggravated battery as a Class B felony,
and criminal gang activity as a Class D felony for his role in
the stabbing death of Edward Crafter. In this direct appeal Kilpatrick raises
twelve issues for our review which we consolidate, reorder, and rephrase as follows:
(1) did the trial court err by admitting certain exhibits into evidence,
(2) did the trial court err in giving certain jury instructions, (3) was
Kilpatrick denied his right to confront witnesses when his co-defendant moved for a
directed verdict arguing that Kilpatrick inflicted the fatal injury, (4) do Kilpatricks convictions
violate the Double Jeopardy Clause of the Indiana Constitution, (5) is the evidence
sufficient to sustain his convictions, and (6) was Kilpatrick properly sentenced. We
reverse Kilpatricks conviction for criminal gang activity on sufficiency of the evidence grounds.
In all other respects, we affirm.
The facts most favorable to the verdict show that in the evening hours
of January 14, 1999, a group of men attacked and beat Edward Crafter.
His body was found in a field the following morning. At
least four of the men were charged in connection with Crafters death, one
of whom was Tommy Thompson. In exchange for his testimony, the State
dismissed charges against Thompson for murder, robbery, and criminal gang activity and allowed
him to plead guilty to aggravated battery. At trial, Thompson downplayed his
own involvement in Crafters death and instead blamed Kilpatrick and another accomplice, Craig
Ferrell, who was tried along with Kilpatrick as a co-defendant.
See footnote Thompson testified,
for example, that he observed Kilpatrick strike Crafter in the head with a
chunk of ice and that as Crafter lay on the ground Ferrell and
Kilpatrick searched Crafters pockets. He also testified that sometime thereafter he observed
Ferrell and Kilpatrick dragging Crafter through the street; that Kilpatrick stabbed Crafter multiple
times in the neck and that Ferrell stabbed him in the chest; and
that both Ferrell and Kilpatrick dragged Crafters body into some bushes. Another
witness also testified that she observed Kilpatrick strike Crafter in the head with
a large chunk of ice and that Kilpatrick searched Crafters pockets as he
lay on the ground. An autopsy revealed that in addition to abrasions
and contusions to his face, Crafter suffered an injury to the back of
his head consistent with being struck with a large block of ice.
The autopsy also revealed that Crafter died as a result of multiple stab
wounds. A jury convicted Kilpatrick of murder, attempted robbery, aggravated battery, and
criminal gang activity. The trial court sentenced him to an aggregate term
of 110 years imprisonment.See footnote This appeal followed. Additional facts are set
forth below where relevant.
I. Admission of Exhibits
Kilpatrick contends the trial court erred by admitting certain exhibits into evidence.
He first complains about States Exhibit 39, a photograph of the victim taken
prior to the autopsy showing multiple stab wounds and a great amount of
blood. According to Kilpatrick, the photograph is gruesome, cumulative of other photographs
introduced into evidence, and served no purpose other than to inflame the passions
of the jury. We review the trial courts admission of photographic evidence
for an abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1028
(Ind. 1999). Photographs that depict a victims injuries are generally relevant and
thus admissible. Harrison v. State, 699 N.E.2d 645, 647 (Ind. 1998).
The relevancy requirement also can be met if the photographs demonstrate or illustrate
a witnesss testimony. Id. However, relevant evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice. .
. . Ind.Evidence Rule 403; Wallace v. State, 725 N.E.2d 837, 839
The photograph here was admitted into evidence after the pathologist had explained the
nature of Crafters injury, namely multiple stab wounds, which was accompanied by significant
bleeding, resulting in death. Because the photograph illustrated the witnesss testimony, the
relevancy requirement for its admission was properly met. As for alleged prejudicial
impact, we do not agree the photograph is particularly gruesome. Indeed, because
the photograph was taken before the pathologist actually began his internal examination, it
shows no incisions and does not portray the gruesome spectacle this Court has
previously condemned. See, e.g., Turben v. State, 726 N.E.2d 1245, 1247 (Ind.
2000) (deeming an autopsy photograph of gloved hands manipulating a bloody mass with
a probe so gruesome as to be inadmissible); Kiefer v. State, 239 Ind.
103, 112, 153 N.E.2d 899, 902 (1958), (deeming photographs so gruesome and shocking
as to be inadmissible), rehg denied. It is true that photographs of
a deceased victim during and after an autopsy is performed may be held
inadmissible on the ground that they serve no purpose other than to arouse
the emotions of the jury. Loy v. State, 436 N.E.2d 1125, 1128
(Ind. 1982). However, this Court has found photographs showing the deceased victim
before the pathologist has made incisions to be admissible even when they are
gruesome or gory. Id. That is so because such photographs allow
the jury to see the wounds or trauma inflicted upon the victim, and
they are often accompanied by the testimony of the pathologist about the cause
of death. Id. Here, the pathologist testified about the cause of
death and the photograph allowed the jury to see the wounds and to
place the pathologists testimony in context. The probative value of the photograph
outweighs any prejudicial impact. Concerning Kilpatricks argument that the photograph was cumulative,
we observe that relevant evidence need not be excluded simply because it is
cumulative. Wagner v. State, 474 N.E.2d 476, 490 (Ind. 1985). The
trial court did not err by allowing the photograph into evidence.
Kilpatrick also complains about the introduction of photographs taken of him at the
time of arrest showing several tattoos on his arms and chest. A
detective assigned to the Metro Gang Task Force testified that the tattoos were
the symbols of a street gang known as the Vice Lords. Kilpatrick
argues that even if relevant to the charge of criminal gang activity, the
photographs prejudicial impact outweighed their probative value. Kilpatrick is mistaken. However,
as explained in greater detail elsewhere in this opinion, we reverse his conviction
for criminal gang activity. Therefore, we decline to address further the propriety
of the trial court admitting the photographs into evidence.
Finally, Kilpatrick complains the trial court erred by admitting into evidence his check-cashing
card and photo ID. Both items were recovered from the home of
Yolanda Coffee; the location where the fight first erupted between Crafter and Kilpatrick.
He claims the exhibits were not relevant and that the State failed
to lay a proper foundation for their introduction into evidence. A proper
foundation for the introduction of physical evidence is laid if a witness is
able to identify the item and the item is relevant to the disposition
of the case. Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993).
Here, although Coffee did not discover the items herself, a relative discovered
them between the pillows of a couch in Coffees home, Coffee was present
when the items were found, she is acquainted with Kilpatrick, and she was
able to identify the items. R. at 294-96.
As for relevancy, relevant evidence is evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
Evid.R. 401. The record shows that prior to trial, Kilpatrick filed
a notice of alibi contending that he was home on the night of
the stabbing. R. at 92. The State contends the items were
thus relevant to show Kilpatricks presence at the home of the witness on
the night of the crime. The problem however is that the witness
discovered the disputed items some five months after the fatal stabbing and testified
that Kilpatrick had visited her home quite a few times. R. at
287, 295. And there was no evidence presented that the last time
he was present at her home was on the night in question.
At best, Kilpatricks photo ID and check-cashing card are only marginally relevant to
the question of whether Kilpatrick was present at or near the crime scene
when Crafter was killed. Even so, Kilpatrick was not harmed by the
admission of the exhibits because a number of witnesses placed Kilpatrick at the
scene on the night of the murder. Any error in admitting evidence
will be found harmless where evidence is merely cumulative. Borders v. State,
688 N.E.2d 874, 878 (Ind. 1997).
II. Jury Instructions
Kilpatricks complaint about jury instructions is somewhat attenuated. On the one hand,
he complains that the trial courts reasonable doubt instruction, sanctioned by this Court
in Winegart, is erroneous. See Winegart v. State, 665 N.E.2d 893 (Ind.
1996). He acknowledges that he did not object to the instruction but
attempts to avoid waiver by arguing fundamental error. He also invites this
Court to revisit Winegart. On the other hand, he argues he is
not seeking reversal based on the trial court giving the Winegart reasonable doubt
instruction but seeks  reversal based upon the six defective instructions to which
were objected by trial counsel and which incorporated the reasonable doubt concept in
each. Br. of Appellant at 19-20.
Kilpatricks attempted end-run at arguing error in the reasonable doubt instruction is unavailing.
The record shows that his objection at trial to the six instructions
he now mentions on appeal was not based on the fact they included
the term reasonable doubt. Rather, Kilpatrick objected to five of the instructions on
the ground that they contained permissive language.
See footnote R. at 775-81. He
objected to a sixth instruction on a similar ground.See footnote R. at 783.
A defendant may not raise one ground for an objection at trial and
then argue a different ground on appeal.
Simmons v. State, 714 N.E.2d
153, 155 (Ind. 1999). This issue is waived for review unless fundamental
error occurred. It did not.
III. Right of Confrontation
Kilpatrick next complains that he was denied his Sixth Amendment right of confrontation.
The facts are these. After the State rested, the jury was
excused and each of the co-defendants moved for directed verdict. Concerning the
charge of aggravated battery, counsel for Craig Ferrell argued, among other things, that
Kilpatrick, and not his client, caused the victims injuries. In this appeal,
Kilpatrick claims he was denied the right to confront a witness against him
because [t]his tactic taken by Ferrells counsel in the middle of the trial
had the same impact as the admission of an extrajudicial statement of a
non-testifying co-defendant at a joint trial. Br. of Appellant at 36.
We first observe that Kilpatricks assertion that counsels comments occurred in the middle
of the trial is obviously misleading. The assertion was made at the
close of the States case and outside the presence of the jury.
In any event, a defendants Sixth Amendment right of confrontation requires that a
defendant be afforded the opportunity to
conduct effective cross-examination of the States witnesses in order to test their believability.
Meagher v. State, 726 N.E.2d 260, 264 (Ind. 2000). This right
of confrontation extends to situations related to the presentation of witnesses or evidence,
during which the right of cross-examination is implicated. Robinson v. State, 699
N.E.2d 1146, 1150 (Ind. 1998). In this case, counsel for Ferrell was
not a witness and his argument for directed verdict was not evidence.
There is no Sixth Amendment violation here.
IV. Violations of Double Jeopardy
Kilpatrick next argues that his conviction and sentencing for murder and attempted robbery
as a Class A felony violates Indianas double jeopardy clause. Specifically, he
contends that the evidentiary facts used by the jury to elevate the charge
of attempted robbery to a Class A felony are the same as the
evidentiary facts used to establish the elements of murder. We disagree.
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 Indianas 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). [T]wo 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 (emphasis in original). 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.
Kilpatrick asserts the same evidence - stabbing of Crafter - was used to
support Kilpatricks murder conviction and the serious bodily injury element in the attempted
robbery conviction. However, both the evidence and the jury instructions, which included
the charging information, clearly show that different evidence - blunt force trauma to
Crafters head with a block of ice causing severe brain damage - was
used to support the serious bodily injury element for the attempted robbery charge.
Thus, application of the actual evidence test discloses that convicting and sentencing
Kilpatrick on both offenses does not violate the Indiana Double Jeopardy Clause.
Kilpatrick further contends that his convictions for attempted robbery, aggravated battery, and criminal
gang activity also violate Indianas double jeopardy clause. As indicated earlier, and
as discussed in greater detail below, we reverse Kilpatricks conviction for criminal gang
activity. Therefore for purposes of this analysis, the conviction for criminal gang
activity is not a part of the equation. As for the remaining
offenses, it is true that the same evidence hitting Crafter with a
block of ice was used to prove both attempted robbery and aggravated
battery. However, the trial court merged the aggravated battery conviction into the
conviction for attempted robbery.
See footnote We have held that where a trial court
merges some offenses into others for purposes of sentencing, there is no double
jeopardy violation. This is so because under those circumstances the defendant is
not being punished for the merged offenses.
Buchanan v. State, 699 N.E.2d
655, 656 (Ind. 1998) (declaring that [n]o double jeopardy issue exists where the
trial court merged convictions for criminal confinement and carjacking into a conviction for
kidnapping, leaving the defendant subject to punishment for the remaining kidnapping and robbery
convictions). Because Kilpatrick is not being subjected to punishment for his conviction
of aggravated battery, his double jeopardy claim fails.
V. Sufficiency of the Evidence
Kilpatrick does not contest his conviction for aggravated battery. He contends, however,
that his convictions for murder, attempted robbery, and criminal gang activity are not
supported by sufficient evidence. In reviewing a sufficiency of the evidence claim,
we do not reweigh the evidence or assess the credibility of witnesses.
Brown v. State, 720 N.E.2d 1157, 1158 (Ind. 1999). 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. Id.
Kilpatricks chief complaint concerns the testimony of Tommy Thompson. Contending that Thompson
was the only witness to testify concerning the murder and attempted robbery, Kilpatrick
argues that Thompsons testimony is impossible to believe, and is insufficient to support
a conviction. Br. of Appellant at 28. Kilpatricks claim amounts to
an invocation of the incredible dubiosity rule. Under this rule, a court
will impinge upon the jurys responsibility to judge witness credibility only when confronted
with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.
Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994); Gaddis v. State,
253 Ind. 73, 80-81, 251 N.E.2d 658, 661-62 (1969). Application of this
rule is limited to cases, such as Gaddis, where a sole witness presents
inherently contradictory testimony which is equivocal or the result of coercion and there
is a complete lack of circumstantial evidence of the appellants guilt. Tillman,
642 N.E.2d at 223.
In this case, Thompson testified that he arrived on the scene after a
fight between Crafter and several other men had begun and that he hit
Crafter only once. R. at 342, 346. By contrast, two other
witnesses testified that Thompson participated more actively in the beatings. R. at
274, 457. Thompson testified that Ferrell and Kilpatrick beat Crafter but did
not mention anyone else. R. at 344. On the other hand,
other witnesses testified that four or five persons participated in the beating.
R. at 272-73, 425. No witness other than Thompson testified that Kilpatrick
stabbed Crafter; however, no blood was found on Kilpatricks clothing, which according to
Kilpatrick, one might expect given the tremendous amount of blood that Crafter lost.
On this latter point, the record shows the clothing that was tested
for bloodstains was clothing Kilpatrick wore at the time of his arrest three
weeks after the stabbing. R. at 541, 562, 649. Further, Thompson
as well as another States witness testified that on the night of the
stabbing Kilpatrick removed the clothes he was wearing and placed them in a
trash bag. R. at 376, 449-50.
In any event, although Thompsons testimony was inconsistent in several respects with the
testimony of other witnesses, it was not equivocal and Thompson did not contradict
himself on the stand. Rather, the record shows that even though Kilpatrick
thoroughly cross-examined Thompson, he nonetheless stuck by his account of the events occurring
on the night of the fatal stabbing. R. at 380-86. See
Berry v. State, 703 N.E.2d 154, 160 (Ind. 1998) (declining to apply the
incredible dubiosity rule where there were inconsistencies in the testimony among witnesses but
no one witness contradicted himself). Further, in addition to Thompsons testimony, one
other witness testified that Kilpatrick went through Crafters pockets after knocking him to
the ground with a block of ice. R. at 275-76. It
is for the trier of fact to resolve conflicts in the evidence and
to decide which witnesses to believe or disbelieve. Marshall v. State, 621
N.E.2d 308, 320 (Ind. 1993). If the testimony believed by the trier
of fact is enough to support the verdict, then the reviewing court will
not disturb it. Id. In this case the jury apparently believed
Thompsons testimony. His testimony coupled with the testimony of other witnesses was
sufficient to support a guilty verdict for murder and attempted robbery. We
therefore affirm Kilpatricks convictions for these offenses.
We have a different view, however, concerning Kilpatricks conviction for criminal gang activity.
In order to convict a defendant of criminal gang activity, the State
must prove beyond a reasonable doubt that the individual: (1) is an active
member of a group with five or more members which promotes, sponsors, assists
in, participates in, or requires as a condition of membership or continued membership
the commission of a felony or an act that would be a felony
if committed by an adult, (2) has knowledge of the groups criminal advocacy,
and (3) has a specific intent to further the groups goals.
See Ind.Code §§ 35-45-9-1, -3.
The State presented substantial evidence that Kilpatrick was a member of a gang:
an acquaintance testified Kilpatrick was a member of the Vice Lords gang,
R. at 333-35; a patrolman with the Indianapolis Police Department testified he had
previously completed a gang contact sheet on Kilpatrick based on known associates, colors,
and tattoo identifiers indicating gang affiliation, R. at 670; and a detective assigned
to the Metro Gang Task Force testified concerning Kilpatricks affiliation with the Vice
Lords, basing his opinion on the number, type, and location of tattoos on
Kilpatricks body. R. at 713. The State also linked the Vice
Lords gang to criminal activity. R. at 703.
To sustain a conviction under a sufficiency of the evidence challenge, there must
be sufficient evidence on each material element. Grace v. State, 731 N.E.2d
442, 445 (Ind. 2000), rehg denied. Here, the State presented no evidence
that Kilpatrick had the specific intent to further the gangs criminal goals when
he stabbed and attempted to rob Crafter. The States case consisted only
of evidence that Kilpatrick was a member of a gang that commits criminal
offenses. That is not enough. See Robinson v. State, 730 N.E.2d
185, 195 (Ind. Ct. App. 2000), trans. denied; Trice v. State, 693 N.E.2d
649, 651 (Ind. Ct. App. 1998) (both reversing convictions for criminal gang activity
where the State failed to show a nexus between the defendants gang membership
and the crimes for which they were charged.). We thus conclude the
evidence was not sufficient to support Kilpatricks conviction for criminal gang activity.
Therefore, we are compelled to reverse this conviction.
Finding three aggravating factors and no mitigating factors, the trial court sentenced Kilpatrick
to enhanced and consecutive terms of imprisonment. Specifically the trial court found
as aggravating factors: (1) the nature and circumstances of the crimes, (2)
Kilpatricks prior criminal history, and (3) the victims family has requested that the
maximum sentence be imposed. R. at 871. Kilpatrick does not contest
the trial courts findings. Rather, he complains the trial court failed to
provide separate reasons for enhancing his sentences and failed to articulate reasons for
running the sentences consecutively.
We observe sua sponte that although recommendations by a victims family may properly
assist a court in determining what sentence to impose for a crime, they
are not mitigating or aggravating factors as those terms are used in the
sentencing statute. Brown v. State, 698 N.E.2d 779, 782 (Ind. 1998) (quoting
Edgecomb v. State, 673 N.E.2d 1185, 1199 (Ind.1996)). In any event, when
a trial court improperly applies an aggravator, a sentence enhancement may be upheld
if other valid aggravators exist. Walter v. State, 727 N.E.2d 443, 448
(Ind. 2000). The manner in which a crime is committed may serve
as an aggravating circumstance. Taylor v. State, 695 N.E.2d 117, 120 (Ind.
1998). The same is true for a defendants criminal history. Culver
v. State, 727 N.E.2d 1062, 1072 (Ind. 2000), rehg denied.
The decision to enhance a presumptive sentence or to impose consecutive sentences for
multiple offenses is generally within the trial courts discretion. Brown, 698 N.E.2d
at 781. A single aggravating factor may be sufficient to support an
enhanced sentence. Garrett v. State, 714 N.E.2d 618, 623 (Ind. 1999).
And the same factors may be used to enhance a presumptive sentence and
to justify consecutive sentences. Miller v. State, 716 N.E.2d 367, 371 (Ind.
1999). We reject Kilpatricks claim that the trial court is required to
identify the factors that support the sentence enhancement separately from the factors that
support consecutive sentences. Blanche v. State, 690 N.E.2d 709, 716 (Ind. 1998).
We also reject his claim that the trial court is required to
identify separate factors to support each sentence enhancement. Id. at 715 (finding
a single aggravator suffices to support enhanced sentences for attempted murder, carrying a
handgun without a license, and resisting law enforcement convictions); Williams v. State, 690
N.E.2d 162, 172 (Ind. 1997) (finding same three aggravators justified enhanced sentences for
murder and conspiracy to commit murder). In sum, Kilpatricks challenge to his
We reverse Kilpatricks conviction for criminal gang activity. In all other respects,
the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Today, we also decide the case of co-defendant Craig Ferrell.
Ferrell v. State, Cause No. 49S00-0003-CR-142, ___N.E.2d___ (Ind. 2001).
Specifically, the trial court sentenced Kilpatrick to consecutive terms of sixty-five
(65) years for murder and forty-five (45) years for attempted robbery. The
court also sentenced Kilpatrick to twenty (20) years for aggravated battery and three
(3) years for criminal gang activity but merged these sentences into the sentence
for attempted robbery.
Footnote: The instructions involved the elements of murder, robbery, attempted robbery, criminal
gang activity, and evidence of other crimes, respectively. R. at 131-38, 142.
Kilpatrick objected to that portion of the instructions that provided if the
State failed to prove each of these elements beyond a reasonable doubt, you
should find the defendant not guilty. Id. (emphasis added). Kilpatrick argued
the word should in each of the instructions ought to be replaced with
the word may. The trial court overruled the objection.
Kilpatrick objected to the instruction that provided, If after considering all
of the evidence . . . , you should acquit even if you
find the accused was guilty of misbehavior . . . . R.
at 150. Kilpatrick argued the word should ought to be replaced with
the word must. The trial court overruled the objection.
Also, we have approved of the Winegart instruction on numerous occasions
and decline Kilpatricks invitation to revisit it here. See Albrecht v. State,
737 N.E.2d 719, 731 (Ind. 2000); McGregor v. State, 725 N.E.2d 840, 842
(Ind. 2000); Warren v. State, 725 N.E.2d 828,834 (Ind. 2000); Turnley v. State,
725 N.E.2d 87, 89 (Ind. 2000); Dobbins v. State, 721 N.E.2d 867, 874-75
(Ind. 1999); Ford v. State, 718 N.E.2d 1104, 1105 (Ind. 1999); Barber v.
State, 715 N.E.2d 848, 851-52 (Ind. 1999); Young v. State, 696 N.E.2d 386,
390 (Ind. 1998).
We acknowledge the considerable case authority declaring that vacating an offense
as opposed to merging it is appropriate at least in those instances involving
See, e.g., Mason v. State, 532 N.E.2d 1169, 1172 (Ind.
1989) (remanding to the trial court with instructions to vacate the defendants conviction
for possession of a narcotic drug as a lesser-included offense of dealing); Cohen
v. State, 714 N.E.2d 1168, 1180 (Ind. Ct. App. 1999) (acknowledging the trial
courts uses of merger but holding where a defendant is found guilty of
both the greater offense and the lesser-included offense, the trial courts proper procedure
is to vacate the conviction for the lesser-included offense and enter a judgment
of conviction and sentence only upon the greater offense.), trans. denied. See
also Webster v. State, 708 N.E.2d 610, 616 (Ind. Ct. App. 1999), trans.
denied; Taflinger v. State, 698 N.E.2d 325, 327 (Ind. Ct. App. 1998); Redman
v. State, 679 N.E.2d 927, 932 (Ind. Ct. App. 1997), trans. denied; Johnson
v. State, 659 N.E.2d 242, 246 (Ind. Ct. App. 1995); Abron v. State,
591 N.E.2d 634, 637 (Ind. Ct. App. 1992), trans. denied. We leave
for another day a discussion concerning the continued viability of the foregoing rule.
We note however that this case does not involve merger of a