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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. ATTORNEY FOR APPELLANT: MICHAEL C. BORSCHEL Michigan City, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

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

No. 49A05-0703-CR-134

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert Altice, Judge Cause No.49G02-0610-FB-197952

December 5, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Dexter Johnson appeals his conviction of arson, a Class B felony. Johnson raises the sole issue of whether the evidence is sufficient to support his conviction. Concluding that there was sufficient evidence to prove his guilt beyond a reasonable doubt, we affirm. We also remand with instructions that the trial court ensure only one judgment of conviction was entered. Facts and Procedural History On October 9, 2006, Crystal Coleman called 911 to report a fire in her apartment, located at 2130 Emerson Knoll Place in Indianapolis. Coleman is the mother of Johnson's infant son, Delasjuan Coleman. At the time of the fire, Delasjuan was using a ventilator to assist his breathing. Johnson regularly visited and cared for Delasjuan, but Johnson did not live with him. On the evening of October 9th, Johnson and Coleman argued, and Johnson retreated to the bedroom of the apartment. Coleman later walked to the bedroom and found a pair of pants on fire in the closet. She ran to another apartment and placed an emergency call. Upon her return, the fire was extinguished and Johnson was not in the apartment. Firefighters responded to Coleman's call, but found the fire extinguished upon arrival. The fire was confined to the bedroom closet. In the fire, two pairs of jeans, a plastic clothes hanger, and a shoe were burned. The carpet was charred in and around the closet. Initial responders blew smoke out of the apartment's hallway with a fan. On October 13, 2006, the State charged Johnson with the following five counts: 1)

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arson, a Class B felony; 2) arson, a Class B felony; 3) arson, a Class D felony; 4) criminal recklessness, a Class D felony; and 5) interfering with the report of crime, a Class A misdemeanor. On January 8, 2007, the State dismissed counts three and four. On January 9, 2007, a jury found Johnson guilty of the remaining arson counts and not guilty of count five. On January 31, 2007, the trial court merged the arson verdicts and sentenced Johnson to a ten-year period of incarceration. 1 Discussion and Decision I. Standard of Review When reviewing the sufficiency of the evidence, we "neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005) (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). We consider conflicting evidence most favorably to the verdict. Id.

II. Sufficiency of Evidence

We note that the Case Chronology report indicates that judgments of conviction were entered on Counts 1 and 2. The Abstract of Judgment, on the other hand, indicates that a conviction was entered only on Count 1. Appellant's Appendix at 17. During the sentencing hearing, the court said, "I will sentence the defendant to ten (10) years in the Department of Correction on Count 1." Transcript at 303. There were no objections or requests for clarification from either party. Convictions for both counts would violate double jeopardy because damage to a single property constitutes only one arson, even if it fits under more than one subsection of Indiana Code section 35-43-1-1(a). Mathews v. State, 849 N.E.2d 578, 586 (Ind. 2006). ("[A] single set of facts that satisfies more than one of the circumstances enumerated in section 1(a) . . . supports only one B felony as a violation of section 1(a) because only one property is damaged."). To ensure that

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Indiana Code section 35-43-1-1(a) states in pertinent part: A person who, by means of fire, explosive, or destructive device, knowingly or intentionally damages: (1) a dwelling of another person without the other person's consent; [or] (2) property of any person under circumstances that endanger human life . . . commits arson, a Class B felony. Johnson was charged with and found guilty of two counts of arson: one for damaging a dwelling and one for endangering human life. Johnson argues that the State did not prove either charge. To convict Johnson of arson as a Class B felony, the State had to prove beyond a reasonable doubt that Johnson knowingly or intentionally damaged either Coleman's dwelling or her property under circumstances which endanger human life. See Ind. Code

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