Appeal from the Fayette Circuit Court. The Honorable Beth A. Butsch, Judge. Cause No. 21C01-1406-FA-338.
ATTORNEY FOR APPELLANT: Patricia Caress McMath, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, Indiana.
Najam, Judge. Baker, J., and Friedlander, J., concur.
Statement of the Case
[¶1] Bryson Tyrone Street appeals his convictions and sentence after a jury found him guilty of the following offenses: burglary, as a Class A felony; attempted robbery, as a Class A felony; attempted robbery, as a Class B felony; battery, as a Class C felony; carrying a handgun without a license, a Class C felony; criminal recklessness, as a Class D felony; neglect of a dependent, as a Class D felony; possession of marijuana, as a Class A misdemeanor; and to being an habitual offender.
Street raises five issues for our review, which we consolidate and restate as the following four issues:
1. Whether some of Street's convictions are prohibited under Indiana double jeopardy law;
2. Whether the trial court committed fundamental error in the admission of certain evidence;
3. Whether the State presented sufficient evidence to support Street's conviction for neglect of a dependent, as a Class D felony; and
4. Whether the trial court erred when it sentenced Street for being an habitual offender.
[¶2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[¶3] Michael Corn and his girlfriend, Bria Benjamin, lived together in Connersville with their two-year-old son. Corn and Benjamin became acquainted with Street around March of 2014. Between March and June, Street visited Corn and Benjamin's home " about ten" times. Trial Tr. at 157.
[¶4] Around 8:00 a.m. on June 11, 2014, Corn, Benjamin, and their son were awoken by someone kicking in their back door. A neighbor observed " a chubby person in a gray hoodie," blue jeans, and with " a bandana around the face" kicking in Corn and Benjamin's door. Id. at 136. The neighbor called the police.
[¶5] Meanwhile, Corn exited the family bedroom to investigate the noise at his door. Corn met an African-American man in the kitchen, and Corn observed that the man was wearing a gray hoodie, blue jeans, a bandana around his face, and blue gloves. Although the man's face was covered, Corn recognized him as Street based on " his voice and his shape and the way" he talked. Id. at 168. In the bedroom, Benjamin also heard and recognized Street's voice. Street demanded Corn's money, and when Corn stated that he did not have any, Street instead grabbed Corn's marijuana off of a kitchen counter. Street then pulled out a .25 caliber handgun and shot Corn in the thigh. Another shot struck the kitchen wall. Street fled before the police arrived.
[¶6] When the police arrived, Corn and Benjamin were initially reluctant to identify Street. But they did so later on June 11, and officers obtained and executed a warrant to search Street's residence later that day. In executing the warrant, officers seized .25 caliber ammunition, a grey sweatshirt, blue jeans with blue gloves stuffed inside them, and bandanas. The officer also seized firearms, which included a loaded .22 caliber revolver, found inside of a pillow case on Street's bed. Street had lived at that residence " for a few months" and shared the residence with his girlfriend, Iva Fine; Fine's daughter, T.A.F.; and Fine's grandson, J.T. Street, Fine, and J.T. all slept in the same bed. Appellant's Br. at 10. T.A.F. " look[ed] to [Street] as a father figure." Trial Tr. at 428.
[¶7] Officers arrested Street. In the booking room of the police station, while officers were conducting a pat-down of Street, a .25 caliber handgun " fell out of his groin area." Id. at 455. Officers also discovered a small bag of marijuana " in the groin area of Mr. Street." Id. at 457. Later ballistics testing revealed that the shots fired inside Corn and Benjamin's residence were fired from the .25 caliber handgun that had fallen out of Street's " groin area" during his booking. Id. at 455.
[¶8] On July 15, 2014, the State filed its amended charging information against Street, in which the State alleged that Street had committed the following offenses:
o Count I: burglary, as a Class A felony, on the grounds that Street " did break and enter the building or structure of [Corn and Benjamin] . . . with the intent to commit a felony and said act resulted in bodily injury" to Corn;
o Count II: attempted robbery, as a Class A felony, on the grounds that Street " did knowingly or intentionally attempt to take property, to-wit: U.S. Currency from . . . Corn by use of force or threat of force and said conduct resulted in serious bodily injury" to Corn;
o Count III: attempted robbery, as a Class B felony, on the grounds that Street " did knowingly or intentionally attempt to take property, to-wit: U.S. Currency from . . . Corn by use of force or threat of force, while armed with a ...