MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 18 2017, 9:30 am
this Memorandum Decision shall not be                                            CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William D. Wyatt, Jr.,                                   April 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1609-CR-2219
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable David R. Bolk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1512-F3-3032



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2219 | April 18, 2017                Page 1 of 7
                                Case Summary and Issue
[1]   Following a jury trial, William Wyatt, Jr. was convicted of aggravated battery,

      a Level 3 felony, and battery by means of a deadly weapon, a Level 5 felony.

      On appeal, Wyatt raises the sole issue of whether his two convictions violate

      the Double Jeopardy Clause of the Indiana Constitution. Concluding his

      convictions violate the prohibition against double jeopardy, we affirm in part,

      and reverse and remand in part.



                            Facts and Procedural History
[2]   On December 5, 2015, Bradley Phillips was living at his friends’ apartment in

      Terre Haute, Indiana. At approximately 9:00 p.m. that evening, Wyatt and his

      cousin, Devon Lakin, stopped by to visit Phillips. The pair visited for about an

      hour and then left the apartment.


[3]   Around 11:30 p.m., Wyatt and Lakin returned to Phillips’ room. Phillips was

      sitting on his bed watching television. As they entered the room, Lakin shut the

      door and stood in front of it. Wyatt then asked Lakin “are you ready[?]”

      Transcript, Volume II at 30. Wyatt walked toward Phillips, punched him in the

      face, and began to talk about a girl named Ashley, who Phillips claimed he did

      not know. Wyatt then grabbed two knives lying on a table, approached

      Phillips, and punched him again. As Phillips attempted to flee, Wyatt stabbed

      him in his chest. The knife pierced Phillips’ lung, causing it to collapse.

      Phillips then ran to a neighbor’s house to seek help.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2219 | April 18, 2017   Page 2 of 7
[4]   The State charged Wyatt with Count 1, aggravated battery, a Level 3 felony;

      Count 2, battery by means of a deadly weapon, a Level 5 felony; and Count 3,

      battery resulting in serious bodily injury, a Level 5 felony. The State also

      sought an habitual offender enhancement. The jury found Wyatt guilty as

      charged and the trial court entered judgment of conviction on all counts. At

      sentencing, the trial court merged Count 3 into Count 1 and sentenced Wyatt to

      thirteen years in the Indiana Department of Correction on that count, enhanced

      by nine years based upon the jury’s finding Wyatt is an habitual offender. The

      trial court sentenced Wyatt to four years on Count 2, to run concurrently with

      Count 1. Wyatt’s aggregate sentence is twenty-two years. Wyatt now appeals.



                                 Discussion and Decision
[5]   Wyatt argues his convictions for Count 1, aggravated battery, and Count 2,

      battery by means of a deadly weapon, violate the state constitutional

      prohibition against double jeopardy. Specifically, he contends Phillips’

      testimony, the State’s charging information, and the prosecutor’s closing

      arguments created a reasonable possibility the jury used the same evidentiary

      facts to convict him of each crime.


[6]   Article 1, Section 14 of the Indiana Constitution provides, “No person shall be

      put in jeopardy twice for the same offense.”

              [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
      Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2219 | April 18, 2017   Page 3 of 7
              challenged offense also establish the essential elements of another
              challenged offense.


      Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration in original) (quoting

      Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We review double jeopardy

      claims de novo. Strong v. State, 29 N.E.3d 760, 766 (Ind. Ct. App. 2015).


[7]   Wyatt contends his convictions for aggravated battery and battery by means of

      a deadly weapon violate the actual evidence test.

              Under the actual evidence test, we examine the actual evidence
              presented at trial in order to determine whether each challenged
              offense was established by separate and distinct facts. To find a
              double jeopardy violation under this test, we must conclude that
              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.


      Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal

      quotation marks omitted). In determining whether there is a reasonable

      possibility the jury used the same evidentiary facts in convicting a defendant of

      two separate crimes, we require substantially more than a logical possibility.

      Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “We evaluate the evidence

      from the jury’s perspective and may consider the charging information, jury

      instructions, and arguments of counsel.” Garrett, 992 N.E.2d at 720.


[8]   Here, the charging information for Counts 1 and 2 state,


                                                   Count 1:
      Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2219 | April 18, 2017   Page 4 of 7
              The undersigned, being duly sworn upon his/her oath, says that
              on or about December 6, 2015, in Vigo County, State of Indiana,
              William D. Wyatt, Jr. did knowingly or intentionally inflict
              injury on Bradley S. Phillips Jr. that created a substantial risk of
              death, in violation of I.C. 35-42-2-1.5.

                                                   Count 2:

              The undersigned, being duly sworn upon his/her oath, says that
              on December 6, 2015, in Vigo County, State of Indiana, William
              D. Wyatt, Jr. did knowingly or intentionally touch Bradley S.
              Phillips Jr. in a rude, insolent, or angry manner, to-wit: stabbed
              Bradley S. Phillips Jr.; said touching being committed with a
              deadly weapon, to-wit: a knife, in violation of I.C. 35-42-2-1(b)(1)
              and I.C. 35-42-2-1(f)(2).



      Appellant’s Appendix, Volume 2 at 15.


[9]   As to closing arguments, the State argued the same evidentiary fact, the

      stabbing of Phillips, in support of each count. The prosecutor stated,

              Count One (1), [Wyatt] knowingly or intentionally, inflicted
              injury on Bradley Phillips, and that injury created a substantial
              risk of death. We know he’s the one that stabbed him. . . . We
              know that he grabbed the knives, and he stabbed Bradley
              Phillips. Did that injury create a substantial risk of death? . . .
              Were they life threatening? Yes. . . . Count Two (2), [Wyatt]
              knowingly or intentionally touched Bradley Phillips in a rude,
              insolent, or angry manner, and the offense was committed with a
              deadly weapon. He stabbed him with a knife folks. Can’t, can’t
              get any easier than that for you guys.


      Tr., Vol. II at 192-93.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2219 | April 18, 2017   Page 5 of 7
[10]   We agree with Wyatt his convictions are in violation of double jeopardy

       principles. Wyatt’s single act of stabbing Phillips is an essential element of both

       aggravated battery and battery by means of a deadly weapon. The only battery

       that created a “substantial risk of death” was Wyatt’s act of stabbing Phillips.

       Ind. Code § 35-42-2-1.5.1 This same act is also an essential element of battery

       by means of a deadly weapon, and the prosecutor argued that same act

       supported both counts. Therefore, in light of the evidence presented to the jury,

       the charging information, and the prosecutor’s closing argument, we conclude

       there is a “reasonable possibility” the jury used the same fact to establish the

       essential elements of both aggravated battery and battery by means of a deadly

       weapon. See Stafford v. State, 736 N.E.2d 326, 331-32 (Ind. Ct. App. 2000)

       (finding a double jeopardy violation because evidence of putting a rope around

       the victim’s neck constituted the basis for both charges, namely battery with a

       deadly weapon and criminal confinement “being armed with a deadly weapon,

       to wit: a rope”), trans. denied.


[11]   A reviewing court may remedy a double jeopardy 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.”

       Richardson, 717 N.E.2d at 54 (citation omitted). Both the State and Wyatt agree

       his conviction for battery by means of deadly weapon should be vacated. See




       1
        Although there was other evidence presented that Wyatt also punched Phillips in the face at least twice, the
       State did not present evidence this battery caused a serious risk of death.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2219 | April 18, 2017             Page 6 of 7
       Brief of Appellee at 10. Therefore, to remedy the double jeopardy violation, we

       reverse Wyatt’s conviction for battery by means of deadly weapon.



                                               Conclusion
[12]   Wyatt’s convictions for aggravated battery and battery by means of a deadly

       weapon violate the state constitutional prohibition against double jeopardy.

       Accordingly, we reverse Wyatt’s conviction for battery by means of a deadly

       weapon and remand to the trial court with instructions to vacate that

       conviction.


[13]   Affirmed in part, reversed and remanded in part.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2219 | April 18, 2017   Page 7 of 7
