ATTORNEYS FOR APPELLANT:            ATTORNEYS FOR APPELLEE:

Charles H. Scruggs                Steve Carter
Kokomo, Indiana    Attorney General of Indiana
                
Teresa D. Harper                Robin Hodapp-Gillman
Bloomington, Indiana                    Deputy Attorney General
                Indianapolis, Indiana

MICHAEL L. DAVIS,                 )
                                       )
Appellant (Defendant                   ),            ) 
                                       ) 
v.                                     ) Cause No. 34S00-0009-CR-527
                                       ) 
STATE OF INDIANA,                      ) 
                                       )
Appellee (Plaintiff                    ).                )

    Davis then began to strangle Bentzler, cutting off his airway. Davis ordered Jenks to get a knife from the kitchen. Jenks brought Davis the knife, and Davis stabbed Bentzler in the neck. Fortunately, the knife blade broke. Bentzler attempted to escape, but Davis again grappled with Bentzler and choked him. Davis asked Jenks to get another knife, but Jenks convinced him that the police were coming. The two men left the home and escaped in Davis’ truck.

    Bentzler suffered several injuries during the attack, including numerous lacerations to his head as a result of blows from the gun and a serious knife cut to his neck. He also suffered internal bruising to his throat, cuts to his hands, and permanent scarring.

    A jury found Davis guilty of all charges. Davis admitted an habitual offender charge. The court sentenced him to fifty years for attempted murder, adding thirty years for his habitual offender status, and a consecutive sentence of thirty years for burglary. It imposed a concurrent twenty years for aggravated battery.

Burglary occurs when a person “breaks and enters the building or structure of another person, with intent to commit a felony in it.” Ind. Code Ann. § 35-43-2-1 (West 1998). Using even the slightest force to gain unauthorized entry satisfies the breaking element of the crime. Trice v. State, 490 N.E.2d 757 (Ind. 1986). For example, opening an unlocked door or pushing a door that is slightly ajar constitutes a breaking. Utley v. State, 589 N.E.2d 232 (Ind. 1992), cert. denied, 506 U.S. 1058 (1993).

The State supported Davis’ burglary charge with the testimony of both Bentzler, the burglary victim, and Jenks, Davis’ accomplice. Bentzler testified:
I’m going to open up the door a little bit ‘cause they’re going to get in somehow or another and I was going to hold my gun out like this, which I did, and let them know that I’ve got a gun. . . . As soon as I opened the door, I didn’t even get that full sentence out. Before I even got probably half that sentence out, the door come smacking into my head and knocked me back to my wall and [Davis] had me pinned up to the wall and was struggling to get the gun out of my hand.

(R. at 271-72.) In addition, Jenks testified that a struggle ensued as the door was cracked open. (R. at 449-50.) This evidence allowed a reasonable inference that Davis used force to gain entry. Consequently, the evidence was sufficient to support a burglary conviction.    

The actual evidence test prohibits multiple 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.” Richardson, 717 N.E.2d at 53. We have elaborated on this test in recent opinions.

In Spivey v. State, we clarified that the actual evidence test “is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” 761 N.E.2d 831, 833 (Ind. 2002) (emphasis added).

    The evidence presented at trial established that Davis forced his way into Bentzler’s home and struck him several times over the head. While choking him, Davis then cut Bentzler with a knife. After the knife blade broke, Bentzler attempted an escape, but Davis again struck and choked him.

The court directed the jury’s application of the evidence on attempted murder and aggravated battery, drawing attention to specific evidentiary facts. See footnote The attempted murder instructions read:
To convict the defendant of Attempted Murder as charged in Count I, the State must have proved [sic] each of the following elements beyond a reasonable doubt:
The defendant:
while acting with the specific intent to kill David Bentzler, Sr.;
did cut David Bentzler, Sr.’s throat with a knife;
which was conduct constituting a substantial step toward the commission of the intended crime of murder.
(R. at 125.)

    The aggravated battery instruction said:
To convict the defendant of Aggravated Batter[y] as charged in Count III, the State must have proved [sic] each of the following elements:
The defendant:
knowingly or intentionally;
inflicted injury upon David Bentzler Sr., to-wit: cut David Bentzler, Sr. with a knife;
which created a substantial risk of death, or caused serious permanent disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

(R. at 130.)

Based upon our review of the evidence, charging information and jury instructions, the conviction for aggravated battery arose from the same evidence that gave rise to the conviction for attempted murder. Therefore, a reasonable possibility exists that the jury used the evidence proving the elements of attempted murder to also establish the elements of aggravated battery. Because both convictions cannot stand under the Indiana Double Jeopardy Clause, we vacate the conviction for aggravated battery. See also Spry v. State, 720 N.E.2d 1167, 1170 (Ind. Ct. App. 1999), transfer denied.

On the other hand, the same analysis fails regarding Davis’ convictions for burglary as a class A felony and attempted murder. Although each charge utilizes the same factual event, Davis’ stabbing of Bentzler, a burglary conviction requires additional evidentiary facts establishing the essential elements of (1) breaking and entering (2) the building or structure of another (3) with the intent to commit a felony in it. Per our decision in Spivey, we find no double jeopardy violation. See also Swaynie v. State, 762 N.E.2d 112, 115 (Ind. 2002).

Nevertheless, “we have 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, 761 N.E.2d 826, 830 (Ind. 2002). Among these is the doctrine that where a single act forms the basis of both a class A felony burglary conviction and also the act element of an attempted murder conviction, the two cannot stand. King v. State, 517 N.E.2d 383, 385 (Ind. 1988); Bevill v. State, 472 N.E.2d 1247, 1254 (Ind. 1985). Accordingly, the burglary conviction as a class A felony must be reduced.

Davis seeks reduction of his conviction to a class C felony. See footnote In response, the State concedes that Davis’ conviction for burglary as a class A felony is error, but urges us to only reduce the conviction to a class B felony.

    In Johnson v. State, 749 N.E.2d 1103 (Ind. 2001), we recently confronted this same issue. In that case, the defendant was convicted of murder and burglary as a class A felony, and we found that the same evidence was erroneously used to support both convictions. Id. Because the evidence presented at trial proved that the defendant broke and entered the victim’s dwelling, we reduced the conviction to a class B felony. Id.; see also Curry v. State, 740 N.E.2d 162, 165-67 (Ind. Ct. App. 2000) (reducing burglary conviction from class A to class B felony because the same evidence was used to convict the defendant of attempted rape and battery).

    The same analysis is applicable here. The evidence presented at trial clearly proves that Davis broke and entered Bentzler’s dwelling. Therefore, we reduce Davis’ burglary conviction to a class B felony.

The granting of a mistrial lies within the sound discretion of the trial court, and we reverse only when an abuse of discretion is clearly shown. Ramos v. State, 433 N.E.2d 757 (Ind. 1982). The general rule precludes presenting a defendant to the jury in handcuffs or shackles, but a court may need to do so in certain exceptional circumstances when restraint is necessary to prevent the escape of the prisoner, to protect those in the courtroom, or to maintain order. Smith v. State, 475 N.E.2d 1139, 1144 (Ind. 1985), rev’d on other grounds, 547 N.E.2d 817 (Ind. 1989). Moreover, it is not an abuse of discretion for a trial court to deny a motion for mistrial because a juror has seen a defendant in handcuffs unless the defendant demonstrates actual harm. Jenkins v. State, 492 N.E.2d 666 (Ind. 1986).

One juror testified that he saw Davis in restraints before trial. (R. at 919-20.) Prior to jury selection, the Howard County courthouse received a bomb threat, forcing a quick evacuation. (R. at 223.) In the presence of potential jurors, shackled and handcuffed inmates (including Davis) were escorted outside to be returned to jail. ( Id.) Securing prisoners during such an emergency was a reasonable response to a potentially critical situation. Moreover, the juror testified that viewing Davis in restraints had no bearing on his verdict. (R. at 920.)

A second juror testified she saw Davis in handcuffs “at some point after we were into the trial,” but that she simply thought Davis’ being in restraints was “just protocol.” (R. at 922-23.) Exactly where this occurred is unknown, but we have held, for example, that “reasonable jurors could expect [defendants] to be in police custody while in the hallway of the courthouse.” Jenkins, 492 N.E.2d at 679 (citing Johnson v. State, 369 N.E.2d 623 (Ind. 1977), cert. denied, 436 U.S. 948 (1978)). Moreover, “[p]otential jurors would reasonably expect that anyone in police custody would be restrained, regardless of the precise nature of the charge against the accused.” Malott v. State, 485 N.E.2d 879, 882 (Ind. 1985), abrogated on separate grounds, Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Because Davis has not demonstrated actual harm as a result of the juror seeing him momentarily in handcuffs, the trial court did not abuse its discretion in denying the motion for a mistrial.

Finally, Davis presented the testimony of a third juror who stated:
At some point in time, and I’m not sure which day, in passing by someone in a conversation, I wasn’t in the conversation, but I just heard someone say possibly [the bomb threat] was handled by the family and that’s what I heard. I have no idea where I heard it from.

(R. at 916.) The juror further testified that hearing this had no effect on her decision in the case. (R. at 917.) As with the previous allegations of error, Davis can demonstrate no actual harm resulting from the juror overhearing the rumor. The trial court did not abuse its discretion.

    Indiana Code § 35-35-1-4 provides the standard to apply when a defendant pleads guilty and then requests to withdraw the plea:
After entry of a plea of guilty . . . but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea . . . for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant’s plea. . . . The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion. However, the court shall allow the defendant to withdraw his plea . . . whenever the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice.     

Ind. Code Ann. § 35-35-1-4(b) (West 1998) (emphasis added).

    Trial court rulings on such requests are presumptively valid, and parties appealing an adverse decision must prove that a court has abused its discretion. Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998). A trial court abuses its discretion only “when the failure of the trial court to grant the motion would result in . . . a manifest injustice.” Id.

    Before sentencing, Davis moved to withdraw his plea. After hearing evidence on Davis’ motion to withdraw his guilty plea, the court stated:
The Defendant does have [the] burden to show that the plea of true or plea of guilty to this charge was not made freely and voluntarily or otherwise without full understanding of the advisement of rights or without factual basis.

(R. at 945-46.) This was an incorrect standard for the trial court to apply. Instead, Davis was required to demonstrate (1) a fair and just reason for withdrawal of the guilty plea and (2) no reliance by the State that resulted in substantial prejudice.

    Nevertheless, Davis does not overcome the presumption that the trial court correctly denied the withdrawal of his guilty plea. Davis asserts that he was tired, confused, and upset because the jury had recently found him guilty of the charged offenses. This is not enough to show that the trial court abused its discretion in denying the motion to withdraw his guilty plea. Although Davis vacillated between pleading guilty and contesting the charge, (R. at 893, 896), the court questioned Davis thoroughly on his understanding of the plea, (R. at 893-909).

    Judge Murray asked Davis whether he suffered from mental or emotional disabilities that interfered with his ability to understand the plea. (R. at 895.) Davis answered, “no.” ( Id.) She asked whether he understood the rights he was forfeiting regarding trial and appeal. (R. at 895-903.) She asked whether he understood that he could receive up to thirty years’ incarceration for the guilty plea. (R. at 903-04.) She asked whether he had consulted with his attorney on the matter. (R. at 904.) To each of these questions, Davis answered yes. See footnote

    While Davis could understandably have been disappointed by the jury’s findings, the record does not demonstrate that permitting withdrawal of the plea was necessary to prevent a manifest injustice.

SULLIVAN, BOEHM, and RUCKER, JJ., concur.
DICKSON, J., concurs in result without separate opinion.

The comment in Roop was intended solely as an observation that the duration of Roop’s sentence would have been no different, not as a statement that concurrent sentences moot a double jeopardy claim.