Pyle, J.
Kahlil Jalon Payne (“Payne”) appeals his conviction for Level 4 felony unlawful possession of a firearm by a serious violent felon (“SVF”) and the trial court’s merger of his convictions. He argues that there was insufficient evidence to prove that he committed unlawful possession of a firearm by an SVF and that the trial court’s merger of two of his convictions violated the constitutional prohibition against double jeopardy. …
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On September 29, 2016, the State charged Payne with Count 1, Level 4 felony unlawful possession of a firearm by an SVF; Count 2, Class A misdemeanor carrying a handgun without a license; Count 3, Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance; Count 4, Level 5 felony carrying a handgun without a license; and Count 5, Level 6 felony possession of a synthetic drug or synthetic drug lookalike substance.
The trial court held a bench trial on May 24, 2017. At the conclusion of the first phase of the trial, the court found that Payne had possessed the firearm the police had found in the duffel bag in the hallway. …
During the second phase of Payne’s bench trial, the State offered certified records from a 2010 robbery conviction and claimed that the records proved that Payne was the defendant in that cause who had previously been convicted of robbery. The records included the charging information, probable cause affidavit, supplemental probable cause affidavit, plea agreement, the trial court’s order on plea hearing, and the trial court’s sentencing order, which were all labeled with the same cause number. … The plea agreement included the robbery defendant’s name, birth date, and signature. … The State rested its case without further testimony.
Based on this evidence, the trial court concluded that the State had proved that Payne had a prior robbery conviction. The trial court found Payne guilty of Count 1, unlawful possession of a firearm by an SVF; Count 2, Class A misdemeanor carrying a handgun without a license; Count 3, Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance; and Count 5, Level 6 felony possession of a synthetic drug or a synthetic drug lookalike substance. The court concluded that Count 3 merged into Count 5, that Payne was not guilty of Count 4, and that Count 2 merged into Count 1. …
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Next, Payne contends that there was insufficient evidence to prove that he had been convicted of the pre-requisite violent felony necessary to be considered an SVF. …
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As Payne argues, we have previously held that a matching name and birth date, absent other identifying evidence, are not sufficient to prove identity. Livingston v. State, 537 N.E.2d 75, 78 (Ind. Ct. App. 1989) … In response, the State contends that it produced additional evidence of Payne’s identity because the plea agreement in the robbery cause and the signed advisement of rights form in the instant cause both contained Payne’s signature.
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Here, the State did not introduce expert or non-expert testimony to authenticate the signature; nor did Payne admit that the signature was his. Accordingly, the signature was never authenticated, and the only evidence the State introduced to prove Payne’s identity as the defendant in the robbery cause was the evidence of the robbery defendant’s name and birth date. As this Court has already held that a defendant’s name and birth date, alone, are not sufficient to prove identity, we conclude that there was not sufficient evidence to prove that Payne had previously committed the robbery and, therefore, qualified as an SVF. See Livingston, 537 N.E.2d at 78. Accordingly, there was also insufficient evidence to support his conviction for unlawfully possessing a firearm as an SVF. See I.C. § 35-47-4-5(c). We reverse Payne’s conviction and remand with instructions for the trial court to vacate it.
However, we note that the trial court merged Payne’s Count 2 Class A misdemeanor carrying a handgun without a license conviction with his unlawful possession of a firearm by an SVF conviction prior to entering judgment of conviction. Because Payne’s status as an SVF was not an element of carrying a handgun without a license, that conviction remains valid. … We remand with instructions for the trial court to enter judgment of conviction on the Class A misdemeanor carrying a handgun without a license conviction and to sentence accordingly.
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Affirmed in part, reversed in part, and remanded with instructions.
Bailey, J., concurs.
Kirsch, J., dissents with opinion.
Kirsch, Judge, dissenting.
I believe that the evidence presented at trial was sufficient to sustain the conviction of Kahlil Jalon Payne for Level 4 felony unlawful possession of a firearm by a serious violent felon (“SVF”), and I would affirm the trial court’s judgment in all respects.
Accordingly, I respectfully dissent.
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First, as noted by the prosecutor at trial, the defendant’s name and its spelling are unique. Second, the date of birth established in Payne’s 2010 conviction matches his date of birth in this proceeding. Third, Payne admitted to and did not contest Counts 3 or 5 in which the same name and date of birth appear as on the information in Payne’s 2010 conviction. Fourth, and as noted by the trial judge, Payne admitted that he’s the same Khalil Jalon Payne who was convicted of the misdemeanor that was a predicate for Count 5.