Crone, J.
Michael Damien Howell was convicted of level 2 felony voluntary manslaughter, level 6 felony criminal recklessness while armed with a deadly weapon, level 3 felony attempted robbery while armed with a deadly weapon, and level 6 felony auto theft. On appeal, he contends that his voluntary manslaughter conviction must be reversed because an allegedly erroneous jury instruction resulted in fundamental error. He also argues that his convictions for criminal recklessness and attempted robbery violate double jeopardy principles and requests that we vacate his criminal recklessness conviction.
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We conclude that the jury instructions as a whole did not mislead the jury, and therefore we affirm his voluntary manslaughter conviction. However, we conclude that his criminal recklessness conviction and his attempted robbery conviction run afoul of the constitutional protection against double jeopardy, and therefore we remand with instructions to vacate his criminal recklessness conviction. …
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… The Indiana Constitution provides, “No person shall be put in jeopardy twice for the same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause … prevent[s] the State from being able to proceed against a person twice for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). “[T]wo or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, 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.” Id.
Howell’s double jeopardy challenge is based on the actual evidence used to convict him. Under the “actual evidence” test, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the factfinder to establish the essential elements of one offense may also have been used to establish all the essential elements of a second challenged offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). …
To convict Howell of level 3 felony attempted robbery while armed with a deadly weapon, the State was required to prove that he knowingly or intentionally engaged in conduct that constituted a substantial step toward taking property from Scales or from the presence of Scales by using or threatening the use of force on Scales while armed with a deadly weapon. Ind. Code §§ 35-425-1 (robbery) and 35-41-5-1 (attempt). To convict Howell of level 6 felony criminal recklessness while armed with a deadly weapon, the State was required to prove that he recklessly, knowingly, or intentionally performed an act that created a substantial risk of bodily injury to Scales while armed with a deadly weapon. Ind. Code § 35-42-2-2. Specifically, Howell asserts that the actual evidence that established the substantial step for the attempted robbery charge is the same evidence that established that he performed an act that created a substantial risk of bodily injury to Scales, namely the evidence that he discharged a firearm into a vehicle occupied by Scales and/or in his direction. We agree.
… The State did not charge Howell with criminal recklessness, but because the jury convicted Howell of criminal recklessness as a lesser-included offense of attempted murder, we consider the charging information for attempted murder. In the charging information, the State alleged that Howell “knowingly or intentionally discharg[ed] a firearm into a vehicle occupied by [Scales] and/or in the direction of [Scales] with the intent to kill, which conduct constituted a substantial step toward the commission of said crime of Murder.” … Similarly, the jury was instructed that to convict Howell of attempted murder, the State must have proved that he, acting with the specific intent to kill Scales, “[d]id knowingly or intentionally discharge a firearm into a vehicle occupied by [Scales] and/or in the direction of [Scales] with the intent to kill[,] which [] conduct constituted a substantial step toward the commission of the intended crime of killing [Scales].” Id. at 86 (emphases added). Therefore, the charging information for attempted robbery, the charging information for attempted murder, and the jury instruction for attempted murder are based on Howell’s conduct of discharging a firearm.
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“When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. If it will not, one of the convictions must be vacated.” Richardson, 717 N.E.2d at 54 (citation omitted). Here, even if we reduced the attempted robbery to a level 5 felony, the substantial step element, and thus the double jeopardy violation, would remain. Therefore, because the violation cannot be eliminated by reducing either conviction to a less serious form of the same offense, we remand with instructions to vacate Howell’s conviction for criminal recklessness.
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… In all other respects, we affirm.
Affirmed and remanded.
Robb, J., and Bradford, J., concur.