Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016 Page 1 of 7

MEMORANDUM DECISION

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

Thomas C. Allen

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

IN 

THE

COURT OF APPEALS OF INDIANA

Juan Duran,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 11, 2016

Court of Appeals Case No.

02A04-1601-CR-65

Appeal from the Allen Superior 

Court

The Honorable Wendy W. Davis, 

Judge

Trial Court Cause No.

02D06-1506-F6-504

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1601-CR-65 | August 11, 2016 Page 2 of 7

STATEMENT OF THE CASE

[1] Appellant-Defendant, Juan Duran (Duran), appeals his convictions for Count I, 

attempted residential entry, a Level 6 felony, Ind. Code § §35-43-2-1.5; -41-5-1; 

Count II, criminal recklessness, a Class B misdemeanor, I.C. § 35-42-2-2(a); and 

Count III, criminal mischief, a Class B misdemeanor, I.C. § 35-43-1-2(a).

[2] We affirm in part, reverse in part, and remand with instructions. 

ISSUE

[3] Duran raises one issue on appeal, which we restate as: Whether double 

jeopardy protections were violated when Duran was convicted of attempted 

residential entry, criminal recklessness, and criminal mischief.

FACTS AND PROCEDURAL HISTORY

[4] Duran and Jessica Lopez (Lopez) had a son, M.L. (the Child). The two were 

not married, and Lopez had primary custody of the Child. Because there was 

no custody agreement, Duran would visit the Child at least once every month 

and pick up the Child from Lopez’s house. On February 23, 2015, at 

approximately 5:00 p.m., Lopez was at home making dinner for her four 

children, including the Child. Duran visited, in accordance with his usual

routine before picking up the Child, Duran went into the living room to play 

with Lopez’s other son, I.L., who was autistic. Lopez saw Duran cornering

I.L. and screaming at him. At that point, Lopez asked Duran to leave her 

house. Duran refused to leave and he pushed Lopez. In turn, Lopez slapped 

Duran across the face and pushed him out of her house. Lopez hurried back 
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inside, locked the door, and then put her foot behind the door-jamb. Lopez 

also asked her children to retrieve her cell phone so that she could call the 

police. 

[5] Angered by Lopez’s actions, Duran ran back to the door, opened the screen 

door, and started kicking the door with his foot. Lopez was still holding the 

bottom of the door with her foot, but the top part of the door bent inwards due 

to Duran’s forceful kicks. Duran kicked the door about three to four times, and 

he also kicked the Plexiglas window in the center of the door several times. In 

the process, the entire window came off and fell into Lopez’s residence. The 

Child, who was standing behind the door, was struck in the face by the 

Plexiglas. The Child screamed and blood trickled down his face. Upon seeing 

what he had done, Duran pulled his foot out of the door and ran to his car. 

Lopez followed him and told him that she was calling the police.

[6] On June 4, 2015, the State filed an Information, charging Duran with Count I, 

residential entry, a Level 6 felony; Count II, criminal recklessness, a Class B 

misdemeanor; and Count III, criminal mischief, a Class B misdemeanor. A 

jury trial was held on December 1, 2015, and at the close of the hearing, Duran 

was found guilty as charged. On December 17, 2015, the trial court sentenced 

Duran to one year executed in the Department of Correction for his attempted 

residential entry conviction, sixty days for his criminal recklessness conviction, 

and sixty days for his criminal mischief conviction. All sentences were to run 

concurrently. 
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[7] Duran now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] Duran argues his conviction and subsequent sentence for all three charges—

attempted residential entry, criminal recklessness, and criminal mischief—

violates double jeopardy principles. 

[9] Article I, Section 14 of the Indiana Constitution provides that “[n]o person shall 

be put in jeopardy twice for the same offense.”1

 We determine whether 

convictions violate this clause by following the two-part test established in 

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). First, we evaluate whether 

the statutory elements of the crimes are the same. Goldberry v. State, 821 N.E.2d 

447, 458 (Ind. Ct. App. 2005). Then, we evaluate whether the actual evidence 

used to convict the defendant of the two crimes is the same. Id. In Spivey v. 

State, 761 N.E.2d 831, 833 (Ind. 2001), our supreme court further explained 

that the actual evidence test is not merely whether the evidentiary facts used to 

establish one of the essential elements of one offense may also have been used 

to establish one of the essential elements of a second challenged offense. 

Rather, the actual evidence test is not violated so long as each conviction 

requires proof of at least one unique evidentiary fact. Bald v. State, 766 N.E.2d 

1170, 1172 (Ind. 2002). Thus, even if each charge utilizes the same factual 

event, no constitutional violation will be found if the second offense requires 

 

1

 Duran has not raised a double jeopardy claim under the United States Constitution. 
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additional evidentiary facts establishing the essential elements. Vandergriff v. 

State, 812 N.E.2d 1084, 1086-87 (Ind. Ct. App. 2004). 

[10] Duran contends that his convictions for attempted residential entry, criminal 

mischief, and criminal recklessness stem from the same evidence. The State 

agrees with Duran’s double jeopardy argument but only with respect to his

convictions for attempted residential entry and criminal mischief. The elements 

of attempted residential entry are met when a person knowingly or intentionally 

performs a substantial step toward breaking and entering the dwelling of 

another. I.C. § §35-43-2-1.5; -41-5-1. To convict Duran of criminal mischief as 

a Class B misdemeanor, the State was required to establish that Duran 

recklessly, knowingly, or intentionally damaged or defaced property of Lopez

without her consent. See I.C. § 35-43-l-2(a)(l). Specifically, the State admits

that the jury may have relied on the same act, Duran’s act of forcefully kicking 

Lopez’s door, to support those convictions. Thus, to remedy this error, we 

remand with instructions for the trial court to vacate Duran’s criminal mischief 

conviction, the lesser of the two charges. See Richardson, 717 N.E.2d at 54 

(“When two convictions are found to contravene double jeopardy principles, a 

reviewing court may remedy the violation by reducing either conviction to a 

less serious form of the same offense if doing so will eliminate the violation. If 

it will not, one of the convictions must be vacated.”).

[11] With regard to whether Duran’s convictions for attempted residential entry and 

criminal recklessness violate the double jeopardy principles, we find no 

violation. At issue in this case is the application of the actual evidence test. As 
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noted above, the elements of Level 6 felony attempted residential entry are met 

when a person knowingly or intentionally performs a substantial step toward 

breaking and entering the dwelling of another. I.C. §§ 35-41-5-1; -43-2-1.5. In 

order to convict Duran of criminal recklessness as charged, the State had to 

prove that Duran recklessly, knowingly, or intentionally performed an act that 

created a substantial risk of bodily injury to the Child. I.C. § 35-42-2-2(a). A 

person engages in conduct “recklessly” if he engages in the conduct in plain, 

conscious, and unjustifiable disregard of harm that might result and the 

disregard involves a substantial deviation from acceptable standards of conduct. 

I.C. § 35-41-2-2(c).

[12] Based on the foregoing, Duran’s argument that his attempted residential entry 

and criminal recklessness relied on the same actual evidence fails. With respect 

to his attempted residential entry offense, the State introduced evidence that 

Duran used his foot to kick Lopez’s door. As for his criminal recklessness 

charge, the State introduced evidence that Duran, with plain, conscious, and 

unjustifiable disregard to the Child’s safety, forcibly kicked Lopez’s door and 

the Plexiglas from the door that injured his son. Because the criminal 

recklessness conviction required additional proof that Duran, recklessly kicked 

Lopez’s door, his convictions for attempted residential entry, and criminal 

recklessness did not violate the actual evidence test. See Richardson, 717 N.E.2d 

54. 
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[13] Accordingly, we reverse in part and remand to the trial court with instructions 

to vacate Duran’s conviction and sentence for criminal mischief. However, 

Duran’s convictions for residential entry and criminal recklessness remain. 

CONCLUSION

[14] Based on the foregoing, we affirm Duran’s convictions for attempted residential 

entry and criminal recklessness; but we reverse in part and remand to the trial 

court with instructions to vacate Duran’s conviction and sentence for criminal 

mischief. 

[15] Affirmed in part, reversed, in part, and remanded with instructions. 

[16] Kirsch, J. and Pyle, J. concur