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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.

FILED
Apr 16 2009, 8:55 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CARA SCHAEFER WIENEKE Wieneke Law Office, LLC Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MATTHEW WHITMIRE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRANDON FRENCH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0809-CR-785

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Carol Orbison, Judge Cause No. 49G22-0803-FB-61767

April 16, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Brandon French appeals his convictions and sentence for class B felony robbery and class B felony criminal confinement. We affirm his robbery conviction and sentence and vacate his criminal confinement conviction. Issues I. II. Whether Frenchs convictions violate double jeopardy; and Whether Frenchs sentence for robbery is inappropriate given his character and the nature of the offense. Facts and Procedural History On March 17, 2008, at approximately 11:00 p.m., Mark Johnson was walking home from work. A silver car approached and parked on the side of the road facing the wrong way. French, the driver, exited the car and asked Johnson if he was "looking for something." Tr. at 13. French then pulled a handgun and demanded the contents of Johnsons pockets. The passenger also exited the car. French pointed the gun at Johnson and took Johnsons cell phone and a bag with three new shirts in it. The passenger patted Johnson down while French pointed the gun at Johnson. The passenger took Johnsons wallet. The two men returned to the car. French got in the drivers seat and smiled and pointed the gun at Johnson as he drove away. The entire encounter lasted approximately three to five minutes. The police arrived within a few minutes of the robbery. One police officer located a car matching Johnsons description of the silver car with a license plate number nearly identical to the one Johnson provided. The police took Johnson to the car, and he identified the two men and his stolen property.
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The State charged French with class B felony robbery, class B felony criminal confinement, and class A misdemeanor carrying a handgun without a license. On July 14, 2008, a jury found French guilty as charged. The trial court sentenced French to concurrent terms of twelve years with eight years executed and four years suspended on both felony convictions and one year executed on the misdemeanor conviction.1 Discussion and Decision I. Double Jeopardy French contends that his convictions for robbery and criminal confinement constitute double jeopardy under the "actual evidence" test enunciated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999).2 We must determine whether 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. at 53. ",,[R]easonable possibility turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions." Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). Robbery consists of taking property "by using or threatening use of force or by putting any person in fear." Ind. Code

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