Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not 

be regarded as precedent or cited 

before any court except for the purpose 

of establishing the defense of res 

judicata, collateral estoppel, or the law 

of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS GREGORY F. ZOELLER

Fort Wayne, Indiana Attorney General of Indiana

BRIAN REITZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ERIC J. SMITH, )

)

Appellant-Defendant, )

)

vs. ) No. 02A03-1311-CR-449

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Frances C. Gull, Judge

Cause No. 02D04-1307-MR-7

August 20, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Eric J. Smith appeals his convictions for murder and Class B felony possession of 

a firearm by a serious violent felon. We affirm.

Issue

Smith raises one issue, which we restate as whether his convictions violate the 

prohibition against double jeopardy.

Facts

Smith shot and killed Jabron Totton during a dispute in the parking lot of an 

American Legion post in Fort Wayne. The State charged Smith with murder, with an 

application for an additional fixed term of imprisonment for using a firearm pursuant to 

Indiana Code Section 35-50-2-11, and Class B felony possession of a firearm by a serious 

violent felon. A jury found Smith guilty as charged. The trial court sentenced him to 

sixty-five years for the murder conviction enhanced by five years for the use of a firearm 

consecutive to a sentence of twenty years for the possession of a firearm by a serious 

violent felon conviction. He received an aggregate sentence of ninety years in the 

Department of Correction. Smith now appeals.

Analysis

Smith argues that his convictions violate the prohibition against double jeopardy. 

The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person shall be 

put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In Richardson v. 

State, 717 N.E.2d 32 (Ind. 1999), our supreme court concluded that two or more offenses 

are the same offense in violation of Article 1, Section 14 if, with respect to either the 
3

statutory elements of the challenged crimes or the actual evidence used to obtain 

convictions, the essential elements of one challenged offense also establish the essential 

elements of another challenged offense. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 

2013).

Smith concedes that his convictions do not violate the statutory elements test; 

rather, Smith argues that his convictions for murder and possession of a firearm by a 

serious violent felon violate the actual evidence test.1 “Under the actual evidence test, we 

examine the actual evidence presented at trial in order to determine whether each 

challenged offense was established by separate and distinct facts.” Id. To find a double 

jeopardy violation under this test, we must conclude that there is “a reasonable possibility 

that the evidentiary facts used by the fact-finder to establish the essential elements of one 

offense may also have been used to establish the essential elements of a second 

challenged offense.” Id. “The actual evidence test is applied to all the elements of both 

offenses.” Id. “‘In other words . . . the Indiana Double Jeopardy Clause is not violated 

when the evidentiary facts establishing the essential elements of one offense also 

establish only one or even several, but not all, of the essential elements of a second 

offense.’” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).

According to Smith, the same evidentiary facts were used to establish the essential 

elements of both murder and possession of a firearm by a serious violent felon. Our 

 

1 Smith does not that argue the sentencing enhancement for using a firearm and his conviction for 

possession of a firearm by a serious violent felon violate the prohibition against double jeopardy. See

Cooper v. State, 940 N.E.2d 1210, 1215 (Ind. Ct. App. 2011) (recognizing that sentencing enhancements 

are not offenses for double jeopardy purposes), trans. denied. 
4

supreme court addressed a similar argument in Mickens v. State, 742 N.E.2d 927 (Ind. 

2001). There, the defendant challenged his convictions for murder and carrying a 

handgun without a license based on the prohibition against double jeopardy based on the 

actual evidence test. Our supreme court rejected the argument and found that “[c]arrying 

the gun along the street was one crime and using it was another.” Mickens, 742 N.E.2d 

at 931. 

Similarly, here, the State proved that Smith committed murder by demonstrating 

that he caused Totton’s death by shooting him with a gun. The State proved that Smith 

committed possession of a firearm by a serious violent felon by demonstrating that Smith 

possessed a gun and qualified as a serious violent felon. Smith attempts to distinguish 

Mickens by arguing that “not a single witness saw Smith with a gun at any point on June 

9

th.” Appellant’s Br. p. 11. However, circumstantial evidence demonstrated that Smith 

possessed the weapon. As the State point out, “One cannot fire a gun without also, at 

some point, possessing that firearm.” Appellee’s Br. p. 8. We conclude that Smith’s 

double jeopardy argument fails. Possessing the weapon as a serious violent felon was 

one crime and using it to murder Totton was another.

Conclusion

Smith’s convictions for murder and possession of a firearm by a serious violent 

felon do not violate the prohibition against double jeopardy. We affirm.

Affirmed.

BRADFORD, J., and BROWN, L., concur.