Vaidik, CJ.
A jury found Damoine Wilcoxson guilty of two counts of attempted murder and one count of criminal recklessness for shooting up two police stations in Indianapolis. The trial court, however, entered only a single attempted-murder conviction, along with a criminal-recklessness conviction, finding that the two attempted-murder counts merge. The court then sentenced Wilcoxson to thirty seven years in prison. Wilcoxson appeals, arguing that the trial court should not have admitted certain evidence at his trial and that therefore his convictions should be reversed. We disagree and affirm his convictions.
The State cross-appeals, contending that the trial court erred by merging the two attempted-murder counts and entering only one conviction. Wilcoxson responds that the State is not authorized to bring such an appeal and that, even if it is, merger of the two counts is proper in this case. We hold that (1) the State is authorized to bring its cross-appeal and (2) the trial court erred by merging the two attempted-murder counts. We therefore remand this matter to the trial court for the entry of a conviction and sentence on the second count.
Around 11:00 p.m. on October 4, 2016, a person shot up the Indianapolis Metropolitan Police Department’s Northwest District building while Sergeant Laura Weida was inside. Thirty spent shell casings and a handwritten note were found in front of the building. The note included threats against “white” people and references to “Yahuah.”
Nine days later, at about 11:00 p.m. on October 13, a person shot up IMPD’s North District building. At the time, Officers Stephen Jones and Justin Keehn were in a room doing paperwork. … One bullet came through a window and passed within inches of Officer Keehn’s right ear. Outside the building, sixteen spent shell casings were found in an area from which the shooter would have been able to see Officers Jones and Keehn sitting inside. … Also found was a handwritten note that, like the note found outside the Northwest District building, contained threats against “white” people and references to “Yahuah.”
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On October 31, an IMPD SWAT team went to the apartment where Wilcoxson had been staying to take him into custody on one or more unrelated warrants. As the team announced its arrival and attempted to enter the apartment, Wilcoxson began shooting—allegedly in the direction of the SWAT officers. Eventually, he surrendered. …
The State charged Wilcoxson in relation to all three incidents under a single cause number. Regarding the October 4 shooting, the State charged Wilcoxson with Level 5 felony criminal recklessness. Regarding the October 13 shooting, the State charged Wilcoxson with two counts of attempted murder—one relating to Officer Keehn and one relating to Officer Jones. And regarding the October 31 SWAT incident, the State charged Wilcoxson with a single count of attempted murder relating to the SWAT officers.
Wilcoxson moved to sever the charges, asking that three separate trials be held for the three incidents. The trial court ruled that the charges arising from the October 4 and October 13 shootings could be tried together but agreed to sever the attempted-murder charge arising from the October 31 SWAT incident.
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The jury found Wilcoxson guilty on all charges being tried: one count of criminal recklessness for the October 4 shooting and two counts of attempted murder for the October 13 shooting. The trial court entered a conviction on the criminal-recklessness count but entered a conviction on only one of the two attempted-murder counts, finding that those two counts “merge.” The court sentenced Wilcoxson to a fully executed term of thirty-five years on the attempted-murder conviction and a consecutive term of five years, with two years executed and three years suspended to probation, on the criminal-recklessness conviction, for a total of thirty-seven years in prison and three years of probation.
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Wilcoxson contends that the trial court should not have allowed the State to present evidence that he fired a gun when the SWAT team came to arrest him on October 31. …
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The trial court did not abuse its discretion by admitting evidence that Wilcoxson fired a gun when the SWAT team went to arrest him.
In its cross-appeal, the State asserts that the trial court erred by merging the two attempted-murder counts and entering only one conviction. …
On the merits, the State’s argument is very straightforward: merger of the two attempted-murder counts is improper because the jury found Wilcoxson guilty on both counts based on evidence that he fired multiple shots in the direction of two different officers. In response, Wilcoxson contends that the trial court’s merger decision is sustainable under two double-jeopardy doctrines. First, he cites the continuous-crime doctrine, which prohibits multiple convictions for actions that are “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), reh’g denied. But we have held that this doctrine is not implicated where, as here, the charges at issue allege different victims. Frazier v. State, 988 N.E.2d 1257, 1264 (Ind. Ct. App. 2013).
Wilcoxson also invokes what we recently referred to as the “very same act test”—the rule that prohibits “conviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished.” Bradley v. State, 113 N.E.3d 742, 751 (Ind. Ct. App. 2018), reh’g denied, trans. denied. The problem with this argument is that it starts from the premise—not supported by any citation to the record—that the two attempted-murder charges and the jury’s guilty verdicts on those charges were based on the single shot that went through the window. … But Wilcoxson took fifteen other shots in addition to the one that went through the window, including two that hit the building and two that hit a dumpster and a car sitting outside the building, and the State specifically pointed to these other shots in arguing to the jury that Wilcoxson intended to kill both officers. … In light of the other shots that Wilcoxson fails to address, we cannot say that the entry of two attempted-murder convictions in this case would violate the “very same act test.”
We agree with the State that the trial court should have entered two attempted murder convictions and sentenced Wilcoxson accordingly. We remand this matter to the trial court for that purpose.
Affirmed in part and reversed in part.
Kirsch, J., and Altice, J., concur.