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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
Sep 09 2009, 9:31 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: LISA M. JOHNSON Marion County Public Defender Agency Appellate Division Brownsburg, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOHNNY C. HORTON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0901-CR-15

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert R. Altice, Judge Cause No. 49G02-0802-FA-44892

September 9, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Following a jury trial, Johnny C. Horton appeals his conviction of Class D felony pointing a firearm,1 asserting that we should vacate the conviction because it violates Indianas double jeopardy protections. He raises the following restated issue: whether there is a reasonable possibility that the jury used the same evidentiary facts to establish the essential elements of both pointing a firearm and criminal confinement. We affirm in part and reverse in part. FACTS AND PROCEDURAL HISTORY In February 2008, Alicia Everman was residing at an Indianapolis townhouse with her eleven-month-old daughter and Alicias cousin, Barbara Walls. Alicias sister, Ashley, had also been staying at the home for the past couple of weeks. At approximately 1:00 a.m. on February 22, 2008, Ashley was cleaning the residence when she heard a knock at the door. At the time, Alicias boyfriend, Andrew Allen ("Allen"), was sitting at the dining room table. Ashley eventually opened the door and saw three men standing in the hallway wearing hooded sweatshirts pulled up and over their heads to partially cover their faces. Ashley attempted to close the door, but one or more of the men forced their way inside. The three men were later identified as James Bryant, Curtis Brandon, and Horton. The men forcefully seated Ashley at the table in the dining room with Allen and asked her where her money was located. When she did not immediately provide the information, Bryant struck her in the head with his handgun. Eventually, Ashley told them her purse was in the living room, and Bryant and Brandon led her to the living room. Horton stayed in the

1

See Ind. Code

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