providing that error in admitting evidence was harmless given the overwhelming independent evidence of guilt
How later courts described this case
- providing that error in admitting evidence was harmless given the overwhelming independent evidence of guilt
Written by the judges who cited it.
The opinion
IN THE
Court of Appeals of Indiana
Joe Chuck Pittman, FILED
Appellant-Defendant Apr 25 2024, 9:15 am
CLERK
Indiana Supreme Court
v. Court of Appeals
and Tax Court
State of Indiana,
Appellee-Plaintiff
April 25, 2024
Court of Appeals Case No.
23A-CR-710
Appeal from the Lake Superior Court
The Honorable Natalie Bokota, Judge
Trial Court Cause No.
45G02-1903-MR-9
Opinion by Judge Bradford
Chief Judge Altice and Judge Felix concur.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 1 of 26
Bradford, Judge.
Case Summary
[1] On January 9, 2019, Joe Chuck Pittman and a group of cohorts committed
various acts of attempted burglary, attempted robbery, and burglary. During
the attempted robbery, which involved four different victims, Alayna Ortiz was
shot and killed. Pittman was subsequently convicted of felony murder, three
counts of Level 3 felony attempted robbery, Level 4 felony attempted burglary,
and Level 4 felony burglary. On appeal, he contends that the trial court erred in
denying his right to self-representation and abused its discretion in admitting
evidence of gang affiliation. He also contends that his convictions violate
Indiana’s prohibition against double jeopardy. We affirm.
Facts and Procedural History
[2] In early 2019, William Hawkins sold marijuana out of a house on Madison
Street (“the House”) in Gary. Hawkins would travel to California, purchase
marijuana, and ship the marijuana to the House in vacuum sealed bags.
Hawkins had several friends sell the marijuana on his behalf, including Donald
Shields and Giovante Galloway. Shields lived in the House with his girlfriend,
Chyanne Miller.
[3] As of January of 2019, Galloway owed Hawkins $1600.00 for marijuana that
Hawkins had advanced to Galloway, and Hawkins had refused to advance
Galloway any more marijuana. Knowing that Hawkins had recently mailed a
shipment of marijuana to the House, Galloway reached out to his uncle, Juarez
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 2 of 26
Rogers, to see if Rogers would help Galloway break into the House to steal the
marijuana. Rogers, in turn, had recruited Pittman, and the three men then met
and agreed on a plan to break into the House.
[4] On January 9, 2019, Galloway, Rogers, and Pittman, together with Elrice
Williams and Joshua Wright, drove to the House. They attempted to open the
back door, but something near the door fell over and made a loud noise. That
noise was promptly followed by the sound of gunshots coming from inside the
House. The five men “scatter[ed]” but, after some time, met back up at their
vehicle. Tr. Vol. V p. 36.
[5] Meanwhile, Shields had called Hawkins and asked him to pick him and Miller
up and to take them to a different residence. Hawkins arrived a short time later
with his girlfriend, Alayna Ortiz. Hawkins was driving Ortiz’s vehicle. Miller
was carrying a duffel bag when she and Shields exited the House and got into
Ortiz’s vehicle. Pittman and his cohorts believed that the duffel bag had
contained the marijuana and money, so they followed Ortiz’s vehicle.
[6] Hawkins drove to an apartment complex and parked in a spot that had a
wooden post in front of it. Wright, who was driving the other vehicle,
immediately pulled in behind Hawkins, blocking him in. Williams and Pittman
“jump[ed] out” of their vehicle, with Williams taking the driver’s side and
Pittman the passenger’s side. Tr. Vol. V p. 49. Both men were armed. From
the back seat, Shields yelled at Hawkins to “drive,” and Hawkins put the car
into gear and then powered over the wooden post. Tr. Vol. IV p. 125. As
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 3 of 26
Hawkins did so, Williams fired his gun through the rear driver’s side window.
The bullet struck Ortiz in the head and killed her.
[7] Hawkins found local law enforcement nearby and drove to them for assistance.
The five men went back to the House and completed their burglary of it. Upon
returning to the House, Pittman and his cohorts ransacked the House and
“grabb[ed] what they” could, including Hawkins’s Xbox; two televisions, one
of which was an eighty-inch television and the other was a smaller one;
ammunition; and a book bag. Tr. Vol. VI p. 126. They also stole ten to fifteen
pounds of leaf marijuana and 200 vape cartridges, which despite their belief that
Shields and Miller had taken the drugs with them, had been left in the House
after all. Galloway later informed law enforcement of what had happened and
who had been involved.
[8] The State subsequently charged Pittman with felony murder, Level 2 felony
attempted robbery resulting in serious bodily injury, four counts of Level 3
felony attempted armed robbery, Level 4 felony attempted burglary, and Level
4 felony burglary. The State also filed a use-of-firearm enhancement.
[9] On April 6, 2021, Pittman requested permission to represent himself at trial.
During a hearing that was held the next day, Pittman’s then-counsel informed
the trial court that Pittman had no trust in him, he had no influence over
Pittman, and there was no chance of a reconciliation of his relationship with
Pittman. The trial court allowed Pittman’s then-counsel to withdraw his
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 4 of 26
appearance and Pittman indicated that he wished to proceed “[p]ropria
persona” and represent himself. Apr. 7 Hr. Tr. p. 10.
[10] Pittman indicated that he understood the potential penalties he was facing. He
further indicated that he was “not sure” if he had ever been declared
incompetent but that he had been diagnosed with depression and as being
bipolar. Apr. 7 Hr. Tr. p. 14. Pittman admitted that he had been prescribed
medication in jail but that he had thrown it away and had not taken it. Pittman
further admitted that he had never read the Indiana Rules of Evidence or Rules
of Court and could name only one potential defense at trial, i.e., challenging the
sufficiency of the State’s evidence. Pittman indicated that he understood that
he would not receive any special treatment or advice from the trial court if he
represented himself.
[11] Pittman outlined his knowledge of the legal system, citing to the “Court
Survival Guide” and indicated that law school was eight to twelve years. Apr.
7 Hr. Tr. p. 23. He further indicated that he wanted to represent himself
because
I feel like this case is about me and pertaining to me. So I feel
like I should be the one representing me. Because there is stuff
my attorney is not going to probably say for me or do for me,
that he hasn’t done for me, that I’d be willing to say for myself,
and that I’d be willing to do for myself.
Apr. 7 Hr. Tr. p. 24. Pittman went on to state that he wanted to represent
himself because
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 5 of 26
I found out what propria persona means. And like I said to you
before, there’s no law that requires me to have an attorney or a
public defender. In fact, I am a [sic] attorney myself. I could be
that.… Based off what I’m telling you, I’m pretty sure you have
knowledge of propria persona or pro per.… I’m pretty sure you
have those. You see what I’m saying. And like I said before,
there’s no law that requires me to have an attorney or a public
defender.
Apr. 7 Hr. Tr. p. 25.
[12] The trial court denied Pittman’s request, finding “[b]ased on all the information
that I’ve heard today concerning your medical status and condition, your
knowledge of the law, your education, and all other matters, that you do not
have the ability to intelligently and competently represent yourself.” Apr. 7 Hr.
Tr. p. 28. The trial court indicated that it would re-entertain Pittman’s request
if Pittman still wished to represent himself after a different attorney was
appointed to represent him but stated
to be very honest with you, sir, I’m concerned about your ability
to represent yourself considering your behavior over the time that
the case has been in front of the Court, the repeated refusals to
come to court, the fact that you’ve been prescribed medication
that you are refusing to take by your own admission, you are
disposing of it without notice to anyone else. These are all
matters of grave concern.
Apr. 7 Hr. Tr. pp. 28–29. Pittman renewed his motion for self-representation
on April 26, 2021. Following a hearing on April 28, 2021, the trial court
granted Pittman’s motion and appointed standby counsel.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 6 of 26
[13] During an August 27, 2021 pretrial conference, Pittman and the trial court
engaged in the following exchange:
THE COURT: All right. So under the law, it is my duty to ask
you some questions to make sure that you are, in fact, ready for
trial. So, first of all, you know, as I’ve told you before, that you
are going to be held, under the law, you’re held to the same
standards as a licensed professional attorney. Do you accept
that, sir?
THE DEFENDANT: No, ma’am.
THE COURT: You do not. Can you articulate or explain why?
THE DEFENDANT: Yes, ma’am.… Well, I don’t feel like I
should be held to the same standards as a licensed attorney
because I’m representing myself propria persona.… Which
allows – qualifies me to be an attorney according to the Black
Laws Dictionary (sic). I’m establishing my sovereign citizen
rights in these legal matters without being mislead [sic], trapped,
or over charged by a licensed defense attorney who would only
bind me into the very system which is dedicated to making me
pay. There’s no law which requires me to hire a licensed
attorney.
THE COURT: Excuse me, Mr. Pittman. I’m just a little bit
confuse [sic] by the last thing you said. I’m not asking you about
whether you want to have an attorney represent you. I asked you
if you accept the state of the law which is, if you represent
yourself as I’ve allowed you to do so far and found you may, do
you accept that you are, in fact, held to same standards as a
professional attorney?
THE DEFENDANT: And once again, I say, no.… Because I
said no the first time, and I say, no, because I’m not pro se. I’m
propria persona which is another --
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 7 of 26
THE COURT: Yes. I haven’t said that you’re pro se, sir. I’m
asking if you accept that you’re held to the same standards as a
professional attorney.
THE DEFENDANT: And I keep saying, no, once again.
THE COURT: Did you want to explain further why you’re
saying, no, or make a further record?
THE DEFENDANT: Yes, ma’am.
THE COURT: Go ahead, sir.
****
THE DEFENDANT: Okay. I would not accept me being held
to the same standards as a licensed attorney because, me
representing myself as propria persona, it allows me to represent
myself the way I should best proceed about the case according to
my own understanding and not to a licensed attorney (sic)
understanding, and I’m pretty sure you probably understand that.
But if you don’t, I could show you on paper.
THE COURT: Do you have any legal precedent to support that
argument, meaning, a case or a statute?
THE DEFENDANT: Not at the moment I don’t have one.
THE COURT: I do. It’s called the case of Wright versus State
which was decided on May 4, 2021, and it was an opinion of our
Indiana Supreme Court, which states and held that, if you do not
understand and accept that you are held to the same standards as
a professional attorney, then you are not making a knowing,
intelligent, and voluntary waiver of the right to counsel, and you
will not be allowed to represent yourself, sir.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 8 of 26
Therefore, as you have indicated now three times adamantly and
repeatedly, you do not accept that, you are now not allowed to
represent yourself.
Aug. 27 Hr. Tr. pp. 4–8 (brackets added, parentheses in original). The trial
court then ordered that standby counsel “shall step in” to represent Pittman.
Aug. 27 Hr. Tr. p. 8.
[14] At Pittman’s and Williams’s joint trial, Galloway testified that he had been
introduced to Williams as “BD” and that he only knew him as “BD.” Tr. Vol.
V p. 24. On cross-examination, Williams challenged Galloway’s identification
of him, asking Galloway the following:
Q: And you also said that the front passenger was being called
BD; right?
A: Yeah.
Q: But everybody in the car, they were calling each other BD;
weren’t they?
A: Yes.
Tr. Vol. V p. 101.
[15] On redirect, the State sought permission to clarify Galloway’s testimony that
his cohorts were referring to each other as BD with his identification of
Williams as BD. Williams objected on the basis of relevance and speculation
and Pittman objected on the basis of prejudice. Following an exchange
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 9 of 26
between counsel and the trial court held outside the presence of the jury, the
trial court determined that
It still goes to this witness’[s] credibility and ability to identify
this one person as having that nickname, and you raised -- you
raised that issue to show that it minimizes the identification, and
so the State has a right to respond to that, it seems. So it will [be]
allowed over objection.
Tr. Vol. V p. 123. The State then engaged Galloway in the following exchange:
Q. Counsel was asking you about BD. Is BD also an affiliation?
A. Yes.
Q. What is that affiliation?
A. Gang affiliation.
Q. Tell the jury. What’s BD stand for?
A. Black Disciples.
Q. So when an individual was named in the vehicle as BD, was
that the name that that individual was going by that night?
A. Yeah.
Q. Okay. Counsel had asked you about the fact that other
people were being referred to as BD. Explain that to the jury.…
Were other people in the car with that affiliation, BD?
A. Oh, it was just anybody affiliated with the Black Disciples,
they would be called that for nicknames or for short.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 10 of 26
Q. Sure. Who else in that car was associating and affiliating as
BD?
A. Everyone, honestly, other than me and Juarez.
Q. Okay. It’s the other individuals who were in the car besides
you and your Uncle Juarez; is that correct?
A. Yes.
Tr. Vol. V pp. 124–25.
[16] After the jury had found Pittman guilty, the trial court entered judgments of
conviction for felony murder, three counts of Level 3 felony attempted robbery
(for acts committed against Hawkins, Shields, and Miller), Level 4 felony
attempted burglary, and Level 4 felony burglary. The State then dismissed the
use-of-firearm enhancement. The trial court sentenced Pittman to an aggregate
ninety-four-year sentence. The trial court also determined that the convictions
for attempted burglary and burglary were “distinct crimes and [did] not run
afoul of double jeopardy.” Tr. Vol. IX p. 5.
Discussion and Decision
[17] Pittman contends that the trial court erred in denying his right to self-
representation and abused its discretion in admitting evidence of gang
affiliation. Pittman also contends that his convictions violate Indiana’s
prohibitions against double jeopardy in three respects.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 11 of 26
I. The Trial Court Did Not Err in Denying Pittman’s Right
to Self-Representation
[18] In discussing a defendant’s right to self-representation, the Indiana Supreme
Court has stated the following:
The basis of a defendant’s right to self-representation under the
Sixth Amendment of the United States Constitution was
articulated in Faretta v. California, [422 U.S. 806 (1975)]. In
Faretta, the United States Supreme Court held that a State may
not constitutionally hale a person into its criminal courts and
there force a lawyer upon him, even when he insists that he
wants to conduct his own defense. The Court acknowledged that
when a defendant manages his own defense, he relinquishes
many of the traditional benefits associated with the right to
counsel, such as an attorney’s training and experience, and may
even conduct his own defense ultimately to his own detriment.
Therefore, the Court declared that in order for an accused to
represent himself, he must knowingly, intelligently, and
voluntarily forgo these relinquished benefits.
However, before waiving these benefits, a trial court must make
an accused aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open. There
are no prescribed talking points the court is required to include in
its advisement to the defendant; it need only come to a
considered determination that the defendant is making a
voluntary, knowing, and intelligent waiver.
In addition, although a defendant need not have the skill and
experience of an attorney, he must be competent to stand trial.
That is, he must have the mental capacity to understand the
proceedings. Before claiming that his right to self-representation
has been denied, a defendant must timely, clearly, and
unequivocally assert that right. If a defendant’s right to self-
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 12 of 26
representation has been denied, a new trial is warranted because
this right is not subject to harmless error analysis.
Osborne v. State, 754 N.E.2d 916, 920–21 (Ind. 2001) (internal citations and
quotations omitted).
[19] Pittman’s challenge to the denial of his request to represent himself largely
focuses on the trial court’s initial denial during the April 7, 2021 hearing.
However, following that initial denial, the trial court granted Pittman’s renewed
motion for self-representation. The trial court only revoked its decision to allow
Pittman to represent himself after he had repeatedly stated that he did not
accept that he would be held to the same standard as a licensed attorney during
the August 27, 2021 pretrial conference. In his reply brief, Pittman claims that
“whether [he] agreed is not the issue” and “whether or not [he] acknowledged
the standard to which he would be held is not the same as unknowingly or
unintelligently waiving the right to counsel.” Appellant’s Reply Br. p. 6. For
its part, the State asserts that “Pittman’s refusal to accept that he would be held
to the same standards as an attorney if he represented himself and his belief that
he could simply reject that requirement demonstrates that he did not
understand the dangers and disadvantages of self-representation or what self-
representation would entail.” Appellee’s Br. p. 23. We agree with the State.
[20] In Wright v. State, 168 N.E.3d 244, 259 (Ind. 2021), the Indiana Supreme Court
held that before granting a request for self-representation, “a trial court must
ensure the defendant knows what he is doing and his choice is made with eyes
open.” (Internal quotation omitted). “[T]he right of self-representation is not a
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 13 of 26
license to abuse the dignity of the courtroom, to engage in serious and
obstructionist misconduct, or to avoid compliance with relevant rules of
procedural and substantive law.” 168 N.E.3d at 259 (internal quotation
omitted). “In short, while a defendant enjoys a right to self-represent, it does
not inevitably follow that such right precludes the appointment of counsel over
the defendant’s objection to protect the public interest in the fairness and
integrity of the proceedings.” Id. at 260 (internal quotation omitted). “And this
public interest, we believe, expands or contracts in direct correlation with the
severity of a potential punishment a defendant faces at trial.” Id.
[21] Pittman was charged with numerous serious offenses, including felony murder,
and faced a substantial potential punishment if found guilty. Given the nature
of the case, the trial court took special care to make sure that Pittman’s request
to represent himself was unequivocal and had been made knowingly and
intentionally. During the April 7, 2021 hearing, Pittman admitted that he had
never read the Rules of Evidence or Rules of Court and could only state one
possible defense, i.e., that the State had failed to meet its burden of proof.
Nothing in the record suggests that this had changed as of the August 27, 2021
pretrial conference. During the August 27, 2021 pretrial conference, Pittman
repeatedly and explicitly refused to accept that he would be held to the same
standard as a licensed attorney.
[22] In Wright, the Indiana Supreme Court focused on the fact that Wright had
“consistently responded that he understood” that he would not receive any
special treatment and would be held to the same standard as a licensed attorney
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 14 of 26
in holding that Wright had knowingly waived his rights to counsel. 1 Id. at 265.
In this case, given Pittman’s repeated refusal to accept this fact, the trial court
reasonably concluded that his request to represent himself had not been
“knowing” or “intelligent” as it demonstrated a lack of awareness of the law
and lack of comprehension about the risk involved with self-representation.
The trial court was in the best position to assess whether Pittman had
knowingly and intelligently waived his right to counsel. See Poynter v. State, 749
N.E.2d 1122, 1128 (Ind. 2001). Based on the record before us, we cannot say
that the trial court erred in denying Pittman’s request for self-representation.
II. The Trial Court Did Not Abuse its Discretion in
Admitting the Evidence of Gang Affiliation
[23] “A trial court has discretion regarding the admission of evidence and its
decisions are reviewed only for abuse of discretion.” Hall v. State, 177 N.E.3d
1183, 1193 (Ind. 2021). “We will reverse only if the trial court’s ruling was
clearly against the logic and effect of the facts and circumstances before it and
errors affect a party’s substantial rights.” Id.
[24] Pittman argues that the evidence of gang affiliation should have been excluded
under Indiana Evidence Rule 404(b) which provides that “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in
1
While the Indiana Supreme Court found that Wright’s waiver of his right to counsel had been made
knowingly, it went on to hold that it had not been made unequivocally or intelligently. Wright, 168 N.E.3d at
265–68.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 15 of 26
order to show that on a particular occasion the person acted in accordance with
the character.” Evidence Rule 404(b) was “designed to prevent the jury from
assessing a defendant’s present guilt on the basis of his past propensities, the so
called ‘forbidden inference.’” Hicks v. State, 690 N.E.2d 215, 218–19 (Ind.
1997).
[T]he standard for assessing the admissibility of 404(b) evidence
in Indiana is: (1) the court must determine that the evidence of
other crimes, wrongs, or acts is relevant to a matter at issue other
than the defendant’s propensity to commit the charged act; and
(2) the court must balance the probative value of the evidence
against its prejudicial effect pursuant to Rule 403. When
inquiring into relevance, the court may consider any factor it
would ordinarily consider under Rule 402.
Id. at 221.2
[25] However, as the State points out, “[o]therwise inadmissible evidence may be
admitted where the defendant opens the door to questioning on that evidence.”
Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009). “The door may be opened
when the trier of fact has been left with a false or misleading impression of the
facts.” Id.
2
The State argues that Pittman waived this claim on appeal because he had objected in general terms and
did not object on Evidence Rule 404(b) grounds with specificity at trial. While Pittman did not specifically
mention Evidence Rule 404(b) when he objected to the admission of the challenged evidence, he argued that
whatever probative value there might be in the evidence, it was outweighed because the evidence was
“extremely prejudicial.” Tr. Vol. V p. 122. While Pittman could have undoubtedly been more precise in
making his objection, we choose to reach the merits of Pittman’s contentions on this issue.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 16 of 26
[26] In this case, Williams and Pittman were tried in a joint trial. After Galloway
identified Williams, who he had known only as “BD,” as one of the
participating individuals, Williams’s counsel elicited testimony that three of the
five occupants of the vehicle had referred to each other as “BD.” The State
argued both at trial and on appeal that it “was entitled to clarify why others
were referred to as ‘BD’ and elicit testimony explaining why this did not impact
Galloway’s identification of Williams.” Appellee’s Br. p. 30. The trial court
determined, and we agree, that Williams’s counsel opened the door to the
challenged evidence when he had attempted to discredit Galloway’s
identification of him by introducing evidence that multiple persons in the
vehicle on the night in question had been referred to as “BD.”
[27] Moreover, we cannot say that the prejudicial effect of this evidence
substantially outweighed its probative value. Williams’s attempt to undermine
and discredit Galloway’s identification of him as “BD” created a misleading
impression with the jury. The State’s questions on redirect were aimed at
dispelling that misleading impression. Galloway’s testimony on redirect was
therefore relevant and necessary to avoid a misleading impression with the jury.
Furthermore, even if the prejudicial effect of the evidence could be said to have
substantially outweighed its probative value, any error in admitting the
evidence was at most harmless given the overwhelming independent evidence
of Pittman’s guilt. See Leach v. State, 699 N.E.2d 641, 644 (Ind. 1998)
(providing that error in admitting evidence was harmless given the
overwhelming independent evidence of guilt). Independent evidence identified
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 17 of 26
Pittman as having participated in the planning of the burglary; being present for
the attempted burglary, attempted robbery, and burglary; and being one of the
men with a firearm who had attempted to get inside Alyana’s vehicle when she
was shot. The trial court, therefore, did not abuse its discretion in admitting the
challenged evidence.
III. Pittman’s Convictions Do Not Violate Indiana’s
Prohibitions Against Double Jeopardy
[28] “Substantive double jeopardy claims come in two principal varieties: (1) when
a single criminal act or transaction violates a single statute but harms multiple
victims, and (2) when a single criminal act or transaction violates multiple
statutes with common elements and harms one or more victims.” Wadle v.
State, 151 N.E.3d 227, 247 (Ind. 2020). The Indiana Supreme Court’s decision
in Powell v. State, 151 N.E.3d 256 (Ind. 2020), implicates the former scenario
and its decision in Wadle implicates the latter. Id. We review questions relating
to double jeopardy de novo. Id. at 237.
[29] Pittman raises three separate double jeopardy arguments. First, he argues that
his three convictions for Level 3 felony attempted robbery violate the
prohibitions against double jeopardy as discussed in Powell. Second, he argues
that his convictions for felony murder and Level 3 felony attempted robbery
violate the prohibitions against double jeopardy as discussed in Wadle. Third,
he argues that his convictions for Level 4 felony attempted burglary and Level 4
felony burglary violate the prohibitions against double jeopardy as discussed in
Powell.
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 18 of 26
A. Pittman’s Three Level 3 Felony Attempted Robbery Convictions
[30] Pittman argues that his singular act of attempting to rob the surviving occupants
of Ortiz’s vehicle cannot result in three convictions under the Indiana Supreme
Court’s analysis in Powell. Again, the Supreme Court’s analysis in Powell
controls when a single criminal act violates a single statute but results in
multiple injuries. 151 N.E.3d at 263.
[31] “The analysis under Powell, potentially a two-step process, begins by reviewing
the text of the statute to determine the appropriate unit of prosecution.” Kerner
v. State, 178 N.E.3d 1215, 1232 (Ind. Ct. App. 2021), trans. denied. “If the
statute, whether expressly or by judicial construction, indicates a unit of
prosecution, then we follow the legislature’s guidance and our analysis is
complete.” Powell, 151 N.E.3d at 264. “But if the statute is ambiguous, then
we proceed to the second step of our analysis.” Id.
Under this second step, a court must determine whether the
facts—as presented in the charging instrument and as adduced at
trial—indicate a single offense or whether they indicate
distinguishable offenses. To answer this question, we ask
whether the defendant’s actions are so compressed in terms of
time, place, singleness of purpose, and continuity of action as to
constitute a single transaction. If the defendant’s criminal acts
are sufficiently distinct, then multiple convictions may stand; but
if those acts are continuous and indistinguishable, a court may
impose only a single conviction. Any doubt counsels against
turning a single transaction into multiple offenses.
Id. at 264–65 (internal citations and quotations omitted).
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 19 of 26
[32] The elements of robbery expressly require the taking—or, here, the attempted
taking—of property “from another person or from the presence of another
person.” Ind. Code § 35-42-5-1(a). The statute creates a clear unit of
prosecution, i.e., the taking of property (or, as here, the attempted taking of
property) from another person. Thus, in effect, “if there are two separate
victims there cannot be a double jeopardy problem as to the offenses they might
have in question.” Woodcock v. State, 163 N.E.3d 863, 875 (Ind. Ct. App. 2021),
trans. denied.
[33] In Kerner, we assessed the viability of two convictions for attempted robbery
under Powell, concluding that although two victims had been killed during the
commission of the attempted robbery, the State had alleged, and the evidence
had demonstrated, that the defendant had only committed one act of attempted
robbery. 178 N.E.3d at 1232. We further concluded that under those facts,
“[w]hile serious bodily injury to a second victim can elevate the offense, it
cannot form the basis of a separate attempted robbery” conviction. Id. at 1232–
33.
[34] In this case, however, unlike in Kerner, the State did not allege that Pittman had
attempted to rob one victim, but rather that Pittman had attempted to rob three
separate victims, i.e., Hawkins, Shields, and Miller. Galloway testified that in
committing the attempted robberies, Pittman and his cohorts had intended to
rob the four victims of “whatever they ha[d].” Tr. Vol. V p. 46. To the extent
that Pittman asserts that he could only have been convicted of one count of
attempted robbery because his actions had been committed with a singleness of
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purpose and had occurred at one place and time, we disagree. In attempting to
rob Hawkins, Shields, and Miller, Pittman committed three separate and
distinct acts of attempted robbery.
[35] We read the plain language of the robbery statute to allow the State to properly
charge multiple offenses of robbery where a defendant simultaneously attempts
to take property from multiple persons. Because we read Indiana Code section
35-42-5-1(a) as creating a single unit of prosecution for each victim and the
commission of the offense is complete with each individual victim, we conclude
that the minimum action required to commit a new and independent violation
of the statute is clear. As such, “we follow the legislature’s guidance and our
analysis is complete.” Powell, 151 N.E.3d at 264. Pittman’s three Level 3
felony attempted robbery convictions are therefore not contrary to Indiana law.
B. Pittman’s Level 3 Felony Attempted Robbery Convictions and
His Felony Murder Conviction
[36] Pittman next argues that his conviction for felony murder and his three Level 3
felony attempted robbery convictions are contrary to the Indiana Supreme
Court’s analysis in Wadle.
Wadle set forth a multi-step analysis to evaluate substantive
double jeopardy claims that arise when, as here, a single criminal
act implicates multiple statutes with common elements. The first
step is to determine whether the statutes, either explicitly or by
unmistakable implication, allow for multiple punishments. If the
statutes allow for multiple punishments, there is no double
jeopardy violation, and our inquiry ends. If the statutes are
unclear, we apply our included-offense statutes. If either offense
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is included in the other, either inherently or as charged, we then
consider whether the defendant’s actions are so compressed in
terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction. If the facts show only
a single crime, judgment may not be entered on the included
offense.
Garth v. State, 182 N.E.3d 905, 920 (Ind. Ct. App. 2022) (internal citations and
quotation omitted), trans. denied.
[37] The question before us is whether Pittman’s three attempted robbery
convictions are included offenses to his felony-murder conviction. We
conclude that they are not. Both the charging information and the final jury
instructions clearly establish that Pittman’s felony-murder conviction is based
on Ortiz’s death, while his three Level 3 felony attempted robbery convictions
are for him approaching Ortiz’s vehicle with a firearm and attempting to rob the
vehicle’s three other occupants—Hawkins, Shields, and Miller. Quite simply,
each of these four convictions involved a different victim. We have previously
concluded that “by definition one offense cannot be either a factually or
inherently included lesser offense” of another offense where “a separate victim
is alleged for each offense.” Woodcock, 163 N.E.3d at 875; see also Ind. Code §
35-31.5-2-168(3) (defining an “included offense” in part as an offense that
“differs from the offense charged only in the respect that a less serious harm or
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risk of harm to the same person”) (emphasis added). Accordingly, Pittman’s
argument under Wadle fails.3
C. Pittman’s Convictions for Level 4 Felony Attempted Burglary
and Level 4 Felony Burglary
[38] Pittman last argues that his conviction for Level 4 felony attempted burglary
and his conviction for Level 4 felony burglary are also contrary to Powell
because they were each part of a single, continuous offense. This part of the
Powell analysis requires us to look to whether the multiple acts were “so
compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.” 151 N.E.3d at 268 (internal
quotation omitted).
[39] We agree with the State that the actions relating to Pittman’s Level 4 felony
attempted burglary conviction and his Level 4 felony burglary conviction did
not constitute a single, continuous offense. Pittman’s Level 4 felony attempted
burglary conviction was based on his initial attempt to enter the House. At that
time, the intent was to steal Hawkins’s marijuana and money. The initial
attempt was unsuccessful as one of the occupants of the House had fired a gun,
causing Pittman and his cohorts to flee. After a while, Pittman and his cohorts
3
To the extent that Pittman relies on Kerner in support of his claim, we reiterate that Kerner involved a
double-jeopardy analysis under Powell as one charged act of attempted robbery resulted in harm to two
separate victims. See Kerner, 178 N.E.3d at 1232–33. For the reasons stated above, Kerner is easily
distinguished from the instant matter. Moreover, to the extent that Pittman relies on Hendricks v. State, 162
N.E.3d 1123, 1139–40 (Ind. Ct. App. 2021), trans. denied, in his reply brief, we note that Hendricks is easily
distinguishable from the instant case because the felony-murder and conspiracy-to-commit-robbery
convictions involved the same victim.
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met back up at their vehicle. Once back at their vehicle Pittman and his cohorts
observed Hawkins, Ortiz, Shields, and Miller leave the residence carrying a bag,
in which they believed was Hawkins’s marijuana and money. They would later
return to the residence, with those facts giving rise to Pittman’s Level 4 felony
burglary conviction.
[40] After Ortiz had been shot, Pittman and his cohorts observed Ortiz’s vehicle
stopped with law enforcement. They then returned to and burglarized the
House. While they had initially intended to steal Hawkins’s marijuana and
money, by the time they returned to the House, they intended to steal other
items, as they believed the marijuana and money were in Ortiz’s vehicle with
Hawkins. In the end, Pittman and his cohorts ransacked the House and stole
Hawkins’s Xbox; two televisions, one of which was an eighty-inch television
and the other was a smaller one; ammunition; and a book bag. They also stole
ten to fifteen pounds of leaf marijuana and 200 vape cartridges, which despite
their belief that Shields and Miller had taken the drugs with them, had been left
in the House.
[41] We agree with the State that “Pittman and the others [had] abandoned their
plan to rob Hawkins of the marijuana when they observed him with police and
chose to burglarize the [House] for other property instead.” Appellee’s Br. p.
41. The original plan had not been to steal televisions and gaming systems, but
upon returning to the house the men intended to “grab[] what they” could. Tr.
Vol. VI p. 125. As the State accurately states, Pittman and his cohorts “could
not have returned to the [House] with the intent to steal something they did not
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believe was in the house.” Appellee’s Br. p. 40. The fact that they were
ultimately able to steal marijuana in addition to other items does not change the
fact that their intent had changed by the time they returned to the House. The
attempted burglary and completed burglary, therefore, were not a single
transaction as the crimes were not connected through a singleness of purpose.
See Powell, 151 N.E.3d at 268. Pittman’s convictions for Level 4 felony
attempted burglary and Level 4 felony burglary did not violate the prohibitions
against double jeopardy as set forth under Powell.4
[42] The judgment of the trial court is affirmed.5
Altice, C.J., and Felix, J., concur.
ATTORNEY FOR APPELLANT
R. Brian Woodward
Appellate Public Defender
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
4
Although Pittman’s argument in his appellant’s brief was limited to Powell, in his reply brief, he cites to the
Indiana Supreme Court’s decision in A.W. v. State, 229 N.E.3d 1060 (Ind. 2024), in which the Court altered
the Wadle analysis relating to inherently included offenses. Pittman cites to this case in support of his claim
that the charging information supports his assertion that he and his cohorts “[c]learly … had a singleness of
purpose” when they attempted burglarize and successfully burglarized the House. Appellant’s Reply Br. p.
13. For the reasons stated above, we do not agree that the two separate acts “clearly” had a singleness of
purpose.
5
Our conclusions in this case regarding the admission of evidence and double jeopardy are consistent with
the conclusions reached by another panel of this Court in Williams’s direct appeal. See Williams v. State, No.
23A-CR-681, 2024 WL 1251344, at *2–6 (Ind. Ct. App. Mar. 25, 2024).
Court of Appeals of Indiana | Opinion 23A-CR-710 | April 25, 2024 Page 25 of 26
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
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