HARRIS v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Jai Harris appeals his convictions for Level 4 felony prisoner in possession of a deadly weapon and Level 5 felony prisoner in possession of a dangerous device,¹ claiming they violate Indiana's prohibition against double jeopardy. Harris also argues his sentence is inappropriate in light of the nature of his offense and his character. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] In 2022, Putnamville Correctional Facility officers escorted Harris to the decontamination showers after he was exposed to pepper spray. Officers placed Harris in a holding cell, removed his restraints, and subjected him to a strip search. During the search, a toothbrush holder fell from Harris’ pocket onto the floor. When the officers gathered Harris’ clothes from the cell, they discovered a shank inside the toothbrush holder. One end of the toothbrush had been whittled to a point and the other wrapped in duct tape as a handle.

[3] The State charged Harris with Level 4 felony prisoner in possession of a deadly weapon and Level 5 felony prisoner in possession of a dangerous device. A jury found Harris guilty of both counts. The trial court entered judgments of conviction for both counts. After considering statutory aggravating and mitigating factors and those offered by the parties, the trial court sentenced Harris to concurrent sentences of twelve years for the Level 4 felony and six years for the Level 5 felony.²

Harris’ convictions subjected him to double jeopardy.

[4] Harris first argues his convictions violate Indiana's prohibition against double jeopardy. The State agrees. This raises a question of law, which we review de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).

[5] When multiple convictions for a single act implicate two or more statutes, we apply Wadle's “three-part test based on statutory sources” to determine whether a substantive double jeopardy violation has occurred. Id. at 1066; Wadle v. State, 151 N.E.3d 227, 248 (Ind. 2020). In Step 1, we look to the statutory language of the offenses at issue; if that language permits multiple punishments, there is no substantive double jeopardy violation. A.W., 229 N.E.3d at 1066. If the statutory language does not clearly permit multiple punishments, we move to Step 2 and look to the included-offense statute and the face of the charging information to assess whether one offense is an included offense of the other. Id. at 1068. “ ‘If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy’ and the analysis ends—full stop.” Id. at 1067 (quoting Wadle, 151 N.E.3d at 248). But if one offense is included in the other,³ we proceed to Step 3 and examine the “underlying facts—as presented in the charging instrument and adduced at trial—to determine whether a defendant's actions were ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ ” Id. at 1071 (quoting Wadle, 151 N.E.3d at 249).

[6] Applying Wadle's test here, we conclude Harris’ convictions violate Indiana's prohibition against substantive double jeopardy. Starting with the relevant statutory language, Indiana Code Section 35-44.1-3-7 prohibits an incarcerated individual from knowingly or intentionally possessing a device that is used or can be used “in a manner that is readily capable of causing bodily injury.” That same section elevates the offense from a Level 5 felony to a Level 4 felony if the device is a “deadly weapon.” I.C. § 35-44.1-3-7. This statute does not clearly permit multiple punishments for the same act, so we move to Step 2.

[7] An included offense is an offense that:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

I.C. § 35-31.5-2-168 (2012); see I.C. § 35-38-1-6 (1983) (prohibiting a trial court from entering a judgment of conviction and sentence for both an offense and an “included offense”). Applied here, Level 5 felony prisoner in possession of a dangerous device is an inherently included offense of Level 4 felony prisoner in possession of a deadly weapon under both subsections (1) and (3). That is, Harris’ Level 5 felony is established by proof of the same material elements or less than all the material elements of his Level 4 felony. Likewise, Harris’ offenses differ only in the respect that his Level 5 felony presents a less serious risk of harm than his Level 4 felony. We move to Step 3.

[8] Applying Step 3 here is quite straightforward. Looking at the facts included in Harris’ charging information and those adduced at trial,⁴ Harris’ two offenses were so compressed in time, place, singleness of purpose, and continuity of action as to constitute a single transaction. Harris possessed one shank, recovered during a single strip search.⁵ Because Harris’ convictions violate the prohibition against substantive double jeopardy, we remand with instructions for the trial court to vacate Harris’ conviction for Level 5 felony prisoner in possession of a dangerous device—the conviction with a lesser penalty—and its accompanying sentence. Given the trial court ordered concurrent sentences, Harris’ aggregate sentence remains unchanged.

Harris’ sentence is not inappropriate.

[9] Harris also asks us to revise his twelve-year sentence.⁶ The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we may revise a sentence authorized by statute if, “after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[10] “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are “separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016)). “[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127.

[11] The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024).

A. Harris’ Character

[12] When examining Harris’ character, we consider a wide range of facts, including his age, criminal history, background, and past rehabilitative efforts. See Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021). At the time of his sentencing, Harris was just twenty-one years old. Yet he had already accumulated a significant criminal history, including adult convictions for Level 3 felony armed robbery, Level 6 felony resisting law enforcement, Level 6 felony obstruction of justice, and Class B misdemeanor false informing. Moreover, Harris had juvenile adjudications for possession of cocaine, escape, and dangerous possession of a firearm. Harris’ notable adult and juvenile criminal history reflects poorly on his character. See Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (explaining even a minor criminal history is a poor reflection of a defendant's character). Along with his criminal record, Harris’ refusal to participate in the pre-sentence investigation also signifies poor character.

[13] Harris claims his character weighs in favor of reducing his sentence because he dropped out of high school and has “essentially grown up incarcerated.” Appellant's Br. at 14. The trial court recognized Harris has “certainly spent a significant amount of time incarcerated[,]” but we agree with the trial court's assessment that it was nobody's “responsibility but [Harris’] own.” Tr. Vol. 2 at 117. Harris has not presented “substantial virtuous traits or persistent examples of good character” to show his character favors revising his sentence. Stephenson, 29 N.E.3d at 122. As a result, Harris must make an even stronger showing regarding the nature of his offense to prevail. See Lane, 232 N.E.3d at 127.

B. Nature of Harris’ Offense

[14] When weighing whether the nature of Harris’ offense supports revising his sentence, we consider facts such whether his offense was “accompanied by restraint, regard, and lack of brutality[.]” Stephenson, 29 N.E.3d at 122. Despite possessing a shank, Harris contends his “actions constituted actual possession in its most basic nature, with no additional evidence beyond that necessary” for the jury to find him guilty of the Level 4 felony. Appellant's Br. at 14. Harris also notes he did not wield or otherwise use the shank to threaten or intimidate another inmate or a prison guard. Although perhaps true, Harris ignores the efforts he took to conceal the shank by stashing it in a toothbrush holder, which was discovered only once it fell from his clothes during a strip search. Ultimately, the nature of Harris’ offense does not justify overriding the significant discretion we afford the trial court, especially in light of his unredeeming character.

Conclusion

[15] We reverse Harris’ conviction for Level 5 felony prisoner in possession of a dangerous device because it subjected him to double jeopardy. We remand for the trial court to vacate that conviction. And we affirm Harris’ sentence because it is not inappropriate.

[16] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-44.1-3-7 (2014).

2.   The trial court found Harris’ criminal history and lack of accountability as aggravating factors. The trial court twice rescheduled Harris’ sentencing hearing because Harris failed to complete the presentence investigation report (“PSI”). The trial court also found Harris’ young age (twenty-one) as a mitigating factor.

3.   Although ultimately not relevant here, we are to construe any ambiguities in a charging instrument about whether one offense is factually included in another in the defendant's favor, finding a presumptive double jeopardy violation at Step 2. Id. at 1069. The State can then rebut this presumption at Step 3. Id.

4.   The charging information alleged that while Harris was incarcerated in a penal facility, he: (1) “knowingly or intentionally possess[ed] a shank, a deadly weapon that was intended to be used in a manner that was readily capable of causing bodily injury[;]” and (2) “knowingly or intentionally possess[ed] a shank, a device, equipment, chemical substance or other material that was intended to be used in a manner that was readily capable of causing bodily injury.” Appellant's App. Vol. 2 at 18–19.

5.   The State appeared to acknowledge the similarity between Harris’ offenses below, noting all the elements, minus one, were the same such that if the jury found Harris guilty of the Level 4 felony charge, it must find him guilty of the Level 5 felony charge too. See Tr. Vol. 2 at 93.

6.   A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two and twelve years, with the advisory sentence being six years. I.C. § 35-50-2-5.5 (2014).

Kenworthy, Judge.

Bradford, J., and Pyle, J., concur.