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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: ANN M. SUTTON Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

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

No. 49A02-0703-CR-264

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Nancy Broyles, Commissioner Cause No. 49G05-0610-FC-205340

December 11, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Kerry Huff appeals his convictions of burglary and attempted theft. Huff argues the trial court abused its discretion by denying his motion for a mistrial, his convictions put him in jeopardy twice for the same offense, and the evidence was insufficient to convict him of burglary. Finding he cannot be convicted of both burglary and attempted theft on the evidence presented at his trial, we vacate in part and affirm in part. FACTS AND PROCEDURAL HISTORY On October 24, 2006, Huff and his stepson, Eric Harris, broke into an empty rental home at 1417 Shepard Street to steal copper pipes. They entered through a window, which they pried open with a screwdriver. They found copper pipes in the kitchen and started "breaking the copper off the floors." (Tr. at 57.) Huff then went outside to check the crawl space for pipes. In the meantime, a neighbor called the police and reported a possible burglary in progress. Officer John Weidner responded to the call. He saw Huff exit the rental home. When Huff saw Officer Weidner, he ran back inside. Eventually, Huff and Harris came out the front door and surrendered to the police. Harris testified at trial that Huff told him to say they were homeless. After Huff and Harris were arrested, police officers found copper pipes lying in the kitchen and bathroom and holes in the drywall where pipes had been removed. They found a screwdriver, but no other tools. Huff was charged with burglary, a Class C felony, and attempted theft, a class D felony. At Huff's trial, a juror asked Officer Weidner whether anyone went to Huff's home to look for copper pipes. Officer Weidner replied, "They said they were 2

homeless." (Id. at 29.) Huff objected on the ground the answer was non-responsive. The trial court sustained the objection and instructed the jury not to consider the statement. Huff then moved for a mistrial on the ground he had not been given Miranda warnings when he made that statement. The trial court denied the motion, finding no harm. Huff was found guilty as charged. DISCUSSION AND DECISION 1. Denial of Motion for Mistrial

Huff argues the trial court abused its discretion by denying his motion for a mistrial. "The determination of whether to grant a mistrial is within the trial court's discretion, and to prevail on appeal, the defendant must show that he was so prejudiced that he was placed in a position of grave peril to which he should not have been subjected." Olson v. State, 563 N.E.2d 565, 571 (Ind. 1990). Peril is measured by the probable persuasive effect on the jury. Gregory v. State, 540 N.E.2d 585, 589 (Ind. 1989). "A mistrial is an extreme remedy warranted only when no other curative measure, such as an admonishment, will rectify the situation. Reversal is seldom required when the trial court has admonished the jury to disregard some statement or conduct." Simmons v. State, 760 N.E.2d 1154, 1162 (Ind. Ct. App. 2002) (citations omitted). The appellant has the burden of demonstrating a mistrial is the only adequate remedy. Gregory, 540 N.E.2d at 589. During his opening statement, defense counsel argued Huff did not enter the house with intent to commit a felony:

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Mr. Huff lived down the street and Eric Harris is his stepson. They ... decided one night that they were going to go and wander around the neighborhood, mess around in their neighborhood. They decided to get mischievous and nosey. . . . [T]hey went into a house they thought was vacant or abandoned. . . . (Tr. at 8.) Huff argues the subsequent testimony of Officer Weidner that Huff said he was homeless prejudiced him because it demonstrated he lied to the police and contradicted his defense. The probable persuasive effect of this testimony on the jury was slight. The jury was admonished to disregard Officer Weidner's testimony, and we presume the jury followed that instruction. See Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001).

Furthermore, Harris testified without objection that Huff told him to say they were homeless. To the extent Officer Weidner's testimony bolstered that of Harris, it was not on a material factual issue. Under the circumstances, the admonition was a sufficient remedy, and the trial court did not abuse its discretion by denying Huff's motion for a mistrial. 2. Double Jeopardy

Huff claims his convictions of attempted theft and burglary violate Article 1, Section 14 of the Indiana Constitution, which provides, "No person shall be put in jeopardy twice for the same offense." Specifically, he argues his convictions violate the actual evidence test established in Richardson v. State: [T]wo or more offenses are the "same offense" in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. 4

717 N.E.2d 32, 49 (Ind. 1999) (emphases in original). For there to be a double jeopardy violation it is not required that the evidentiary facts establishing all of the elements of one challenged offense also establish all of the essential elements of a second challenged offense. . . . If the evidentiary facts establishing any one or more elements of one of the challenged offenses establishes the essential elements of the second challenged offense, double jeopardy considerations prohibit multiple convictions. Alexander v. State, 772 N.E.2d 476, 478 (Ind. Ct. App. 2002), trans. denied 783 N.E.2d 700 (Ind. 2002). Huff bears the burden of proof: To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a defendant must demonstrate 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. Richardson, 717 N.E.2d at 53. Burglary is breaking and entering "the building or structure of another person, with intent to commit a felony in it." Ind. Code

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