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:

ALEXANDER L. HOOVER GREGORY F. ZOELLER

Law Office of Christopher G. Walter Attorney General of Indiana

Nappanee, Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DAVONTA K. JOHNSON, )

)

Appellant-Defendant, )

)

vs. ) No. 20A03-1307-CR-294

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ELKHART CIRCUIT COURT 

The Honorable Terry C. Shewmaker, Judge

Cause No. 20C01-1209-FB-97

March 31, 2014

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

Davonta K. Johnson appeals from the trial court’s sentencing order entered after 

Johnson’s convictions of one count of burglary1 as a Class B felony and one count of 

robbery2 as a Class B felony, contending that the trial court’s use of the same aggravating 

factors to enhance both sentences was a violation of his double jeopardy protections under 

the Indiana Constitution and the United States Constitution.

We affirm.

FACTS AND PROCEDURAL HISTORY

Kevin and Sadie Mahone hired a woman known as Shea to babysit their two young 

children while the Mahones were at work. Shea would come to the Mahones’ house to 

pick up the children and care for the children elsewhere during the Mahones’ shifts at work. 

Johnson, who was Shea’s boyfriend and the father of her child, would sometimes 

accompany Shea when she picked up the children and entered the Mahones’ home with 

Shea on those occasions. 

Prior to August 17, 2012, Shea failed to show up on one occasion when she was 

scheduled to babysit for the Mahones’ children. The Mahones were forced to miss work 

in order to care for their children and decided to withhold Shea’s pay until such time that 

they could discuss Shea’s absence with her. On the evening of August 17, 2012, Johnson 

came to the Mahones’ house to collect the money that Shea was purportedly owed. Johnson 

and Kevin, who were both outside the Mahones’ house, argued, and the argument turned 

into a physical altercation after some time. Both Kevin and Johnson left the premises.

 

1 See Ind. Code § 35-43-2-1.

2 See Ind. Code § 35-42-5-1. 
3

Later that evening, when Sadie was giving her infant a bath, she heard a loud noise 

that sounded like a door had been kicked open in the other room. Sadie went to investigate 

the source of the sound and found Johnson inside her home holding a gun to the head of 

her three-year-old daughter. The Mahones kept money in baby formula jars in the kitchen. 

Johnson walked toward the kitchen shelves, took money out of a formula jar, and left the 

Mahones’ home. Police who were dispatched to the scene found signs of forced entry at 

the door.

The State charged Johnson with burglary as a Class B felony, alleging that Johnson 

broke and entered the Mahones’ home with the intent to commit theft, and armed robbery 

as a Class B felony. At the conclusion of Johnson’s bench trial, the trial court found 

Johnson guilty of both counts.

At Johnson’s sentencing hearing, the trial court found as mitigating factors 

Johnson’s age, 22, and the statements made at sentencing by Johnson and his counsel. The 

trial court found the following aggravating factors: 1) Johnson’s moderate risk to reoffend; 

2) Johnson’s criminal history, consisting of extensive juvenile and adult contacts with law 

enforcement and multiple prior convictions; 3) Johnson was on probation at the time he 

committed the offenses; 4) Johnson’s regular marijuana use, which was indicative of his 

disregard for the law; 5) lesser sanctions had failed to rehabilitate Johnson; 6) Johnson 

inserted himself into a dispute between other individuals; and 7) there were two small 

children who were victimized due to their presence during the crimes and the fact that a 

gun was held to the head of the three-year-old child. The trial court sentenced Johnson to 

nineteen years executed on each count to be served concurrently. Johnson now appeals. 
4

DISCUSSION AND DECISION

Johnson appeals from the trial court’s sentencing order, contending that using the 

same aggravating factors to enhance both sentences was a violation of his double jeopardy 

protections under the Indiana and federal constitutions. Johnson concedes that his 

convictions for burglary and robbery do not violate double jeopardy principles. Instead, 

Johnson claims that his sentence violates Indiana’s common law double jeopardy rules 

because the trial court used the same reasons, i.e., pointing a gun to the head of a threeyear-old, to impose a sentence above the advisory sentence for each offense. 

One of the common law rules prevents a “[c]onviction and punishment for an 

enhancement of a crime where the enhancement is imposed for the very same behavior or 

harm as another crime for which the defendant has been convicted and punished.” Guyton 

v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson v. State, 717 N.E.2d 32, 

56 (Sullivan, J., concurring)). In other words, the State cannot seek to enhance the level of 

an offense from one felony level to another based on the same fact that constitutes another 

offense for which the defendant is convicted. See Gross v. State, 769 N.E.2d 1136, 1139 

(Ind. 2002) (“where a single act forms the basis of both a Class A felony robbery conviction 

and also the act element of the murder conviction, the two cannot stand.”). This rule was 

not violated in the present case because Johnson’s robbery conviction was enhanced to a 

Class B felony because it was committed while armed with a deadly weapon, and Johnson’s 

burglary conviction was enhanced to a Class B felony because the building was a dwelling, 

i.e., the Mahones’ home. 
5

Johnson has confused the concepts of the enhancement of an offense to a greater 

level of felony with the enhancement of a sentence above the advisory sentence. In Miller 

v. State, 790 N.E.2d 437, 439 (Ind. 2003) (quoting Gates v. State, 759 N.E.2d 631, 633 n.2 

(Ind. 2001)), our Supreme Court reemphasized that “the use of a ‘single deadly weapon 

during the commission of separate offenses may enhance the level of each offense.’” The 

remedy for a double jeopardy violation is to vacate the conviction, or to reduce the 

conviction to a lesser level of felony in recognition of the double-jeopardy problem. See 

e.g., Orta v. State, 940 N.E.2d 370, 377 (Ind. Ct. App. 2011). What Johnson seeks here, is 

a reduction of the length of his sentence, which demonstrates that his claim does not 

actually implicate common law double jeopardy rules.

To the extent that Johnson might be arguing that the trial court improperly used an 

element of the offense of robbery to enhance the robbery sentence, the claim also fails. 

“[T]he consideration of a material element of a crime as an aggravator ‘is no longer an 

inappropriate double enhancement.’” Gomillia v. State, 993 N.E.2d 306, 310 (Ind. Ct. Ap. 

2013). Additionally, the particularized circumstances of an offense are valid 

considerations for the purpose of sentencing. Id. at 310-11. The trial court observed that 

there were two additional victims of Johnson’s crimes, namely the two young children who 

were present during the commission of the crimes, and that one of the children had a gun 

held to her head during the commission of the crimes. The trial court did not err.

Affirmed. 

FRIEDLANDER, J., and BAILEY, J., concur.