MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Nov 09 2017, 8:46 am
the defense of res judicata, collateral                                     CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

George Landy,                                           November 9, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1704-CR-769
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Barbara Cook-
Appellee-Plaintiff                                      Crawford, Judge
                                                        Trial Court Cause No.
                                                        49G09-1606-F6-23235



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017          Page 1 of 9
[1]   George Landy was convicted of a number of criminal offenses, including

      resisting law enforcement, criminal mischief, leaving the scene of an accident,

      and unauthorized entry of a motor vehicle. On appeal, he raises double

      jeopardy concerns and challenges the sufficiency of the evidence.


[2]   We affirm in part, reverse in part, and remand.


                                       Facts & Procedural History


[3]   On June 12, 2016, David Chic reported stolen his 2005 BMW, which he had

      purchased earlier that year for $13,000. Indianapolis Metropolitan Police

      Officer Albert Teaters was on patrol around 1:30 a.m. on June 14, 2016, when

      he encountered the BMW heading northbound near the intersection of Dr.

      Martin Luther King, Jr. Street and 21st Street. Landy was driving the BMW.


[4]   After checking the plate and discovering that the vehicle had been reported

      stolen, Officer Teaters radioed for backup while following the BMW. The

      BMW began accelerating and made a right turn onto Fall Creek Boulevard. It

      then abruptly turned left onto Paris Avenue and accelerated to over eighty miles

      per hour. Officer Teaters activated his lights and sirens, but the BMW

      continued at a high rate of speed for several blocks without slowing at stop

      signs. The BMW then careened off the road as Paris Avenue ended at 28th

      Street. It then violently struck two parked vehicles and pushed them toward




      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017   Page 2 of 9
      Shamika Cole’s house, as the BMW continued into Cole’s backyard and came

      to a stop. All three vehicles sustained extensive damage.1


[5]   Within seconds of the collision, Officer Teaters parked and exited his patrol car.

      Landy then opened the driver’s side door of the BMW and ran from the scene.

      Officer Teaters chased Landy while ordering him to stop. He eventually tased

      Landy to gain control of him in a dark alley.


[6]   Landy was arrested and charged with the eight counts: Count I, Level 6 felony

      resisting law enforcement; Count II, Class A misdemeanor resisting law

      enforcement; Counts III through V, Class A misdemeanor criminal mischief;

      Counts VI and VII, Class B misdemeanor leaving the scene of an accident; and

      Count VIII, Class B misdemeanor unauthorized entry of a motor vehicle. At

      his jury trial on December 7, 2016, the jury found him guilty as charged. That

      same day, the trial court entered judgments of conviction on all eight counts.


[7]   The sentencing hearing took place on March 13, 2017, at which the trial court

      vacated the conviction on Count IV “based on Double Jeopardy”. Transcript

      Vol. 2 at 149. The trial court observed (incorrectly) that Count VII had been

      dismissed prior to trial.2 The sentencing order, however, is ambiguous with

      respect to Count VII. It lists the disposition of Count VII twice, once as




      1
       One of the vehicles struck was Cole’s 2006 Nissan Altima, and the other was Terrence Robinson’s late-
      model Volvo. Both were operational prior to the collision.
      2
       Counts V and VII were dismissed on the State’s motion in September 2016. However, the court granted the
      State’s motion to refile these counts prior to the trial, and the jury found Landy guilty on both counts.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017          Page 3 of 9
      “Finding of Guilty” and once as “Dismissed”. Appendix Vol. II at 15. The

      order then sets out a sentence for Count VII. Accordingly, we will proceed as

      though Landy was convicted of Counts I through III and V through VIII. On

      these counts, the trial court imposed an aggregate sentence of 910 days, with

      730 of those days served in the Department of Correction and 180 days on

      home detention. Landy now appeals.


                                          Discussion & Decision


                                              Double Jeopardy


[8]   Landy argues that a number of his convictions violate principles of double

      jeopardy found in Article 1, Section 14 of the Indiana Constitution. He asks

      that we vacate one count each of resisting law enforcement, leaving the scene of

      an accident, and criminal mischief. We will address each in turn.


[9]   Under Indiana’s Double Jeopardy Clause, a defendant may not be convicted of

      two offenses if with respect to the actual evidence used to convict, the essential

      elements of one challenged offense also establish the essential elements of

      another challenged offense. Layman v. State, 42 N.E.3d 972, 980 n.7 (Ind.

      2015). This analysis requires a consideration of whether the evidentiary facts

      used to establish the essential elements of one offense may also have been used

      to establish all of the essential elements of the second challenged offense. See

      Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017   Page 4 of 9
[10]   Even where different evidence is used to establish two counts, a double

       jeopardy violation may arise. Relevant here, the continuing crime doctrine

       reflects a category of Indiana’s prohibition against double jeopardy. Walker v.

       State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). This doctrine “provides that

       actions that are sufficient in themselves to constitute separate criminal offenses

       may be so compressed in terms of time, place, singleness of purpose, and

       continuity of action as to constitute a single transaction.” Id. at 735.


[11]   With respect to his dual convictions for leaving the scene of an accident

       (Counts VI and VII), Landy contends that the same actual evidence was used to

       establish these counts. The State does not dispute this argument, and simply

       notes that Count VII was dismissed. As addressed above, it is not clear that

       Count VII was in fact dismissed. Further, conviction on both counts of leaving

       the scene of an accident clearly constitutes a double jeopardy violation because

       both counts were based on Landy’s flight after the accident. It is of no moment

       that multiple cars were involved in the single accident. See Wood v. State, 999

       N.E.2d 1054, 1065 (Ind. Ct. App. 2013) (defendant’s three convictions for

       leaving the scene of an accident subjected him to double jeopardy, “as he was

       punished three times for an act – leaving the scene of an accident – he

       committed only once”), trans. denied. On remand, the trial court is directed to

       vacate the conviction and sentence on Count VII.


[12]   We turn now to the convictions for resisting law enforcement. Landy was

       convicted of Level 6 felony resisting (Count I) based on his fleeing from Officer

       Teaters while driving a vehicle. He was also convicted of Class A misdemeanor

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017   Page 5 of 9
       resisting (Count II) based on his running from Officer Teaters after the collision.

       Landy contends that under the continuing crime doctrine he could be convicted

       of only one count of resisting law enforcement. We agree, and the State

       reluctantly concedes that the case law is not in its favor in this regard. Landy’s

       actions of fleeing by vehicle and then on foot constitute one continuous act of

       resisting law enforcement and, therefore, convictions on both counts cannot

       stand. See Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015); Arthur v.

       State, 824 N.E.2d 387 (Ind. Ct. App. 2005) (“whether on foot or in a vehicle,

       the same ‘species’ of behavior is proscribed: fleeing”), trans. denied.

       Accordingly, we direct the trial court to vacate Landy’s conviction for Class A

       misdemeanor resisting law enforcement, Count II.


[13]   Similarly, Landy challenges his two convictions for criminal mischief under the

       continuing crime doctrine. Counts III and V charged Landy with damaging the

       vehicles of Chic and Robinson, respectively. He notes that the damage to both

       vehicles was caused by the same collision.


[14]   A person commits criminal mischief when that person “recklessly, knowingly,

       or intentionally damages…property of another person without the other

       person’s consent”. Ind. Code § 35-43-1-2(a). Damaging property of another

       person is, thus, a central element of this crime. As a result of the collision,

       Landy damaged two different items of property owned separately by different

       people. Accordingly, he could be convicted of two counts of criminal mischief.

       Cf. Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (one fire damaging

       properties owned by different people supports multiple counts of arson).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017   Page 6 of 9
[15]   Further, the continuing crime doctrine does not apply here because multiple

       victims were involved resulting in distinct chargeable crimes. See Walker, 932

       N.E.2d at 736 (“the continuing crime doctrine does not apply to factual

       situations where a defendant is charged with two or more distinct chargeable

       crimes”). See also Frazier v. State, 988 N.E.2d 1257, 1264 (Ind. Ct. App. 2013)

       (finding no double jeopardy violation under either the actual evidence test or

       the continuing crime doctrine where different victims were involved). Landy’s

       convictions for two counts of criminal mischief do not violate principles of

       double jeopardy.


                                          Sufficiency of the Evidence


[16]   Landy challenges the sufficiency of the evidence with respect to Count V,

       criminal mischief involving Robinson’s Volvo.3 He contends that his

       conviction should be reduced from a Class A misdemeanor to a Class B

       misdemeanor because the State failed to establish that his actions resulted in at

       least $750 in damages to Robinson’s vehicle. See I.C. § 35-43-1-2(a)(1)

       (elevating the crime of criminal mischief to a Class A misdemeanor if the

       resulting pecuniary loss is at least $750 but less than $50,000).


[17]   When we consider a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,




       3
        Landy also challenges the sufficiency of evidence with respect to the amount of damage to Cole’s vehicle.
       Because the trial court vacated Count IV, we need not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017           Page 7 of 9
       51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

       reasonable inferences supporting the verdict. Id. We will affirm the conviction

       if there is probative evidence from which a reasonable jury could have found

       the defendant guilty beyond a reasonable doubt. Id.


[18]   The State offered photographic evidence of the damage to Robinson’s vehicle.

       State’s Exhibit 7 shows extensive damage to both driver’s side doors of the

       Volvo station wagon. In the photograph, the frame of the driver’s door is

       broken with a portion jutting in toward the driver’s seat, the entire door is caved

       in, and the side mirror is broken off. The rear driver’s side door is also smashed

       inward, and the vehicle is clearly not drivable. Landy acknowledged during his

       testimony that the picture evidenced “[v]ery significant” damage to the Volvo.

       Transcript Vol. 2 at 94. He also agreed with the State on cross examination that

       it would likely “cost more than [$750] to fix those cars”. Id.


[19]   While the State did not present testimony establishing the precise amount of

       damage to the Volvo, we conclude that the photographic evidence, along with

       Landy’s testimony, constituted sufficient evidence for the jury to determine that

       the damage caused was at least $750. Indeed, the damage depicted in the

       photograph is so significant as to permit a reasonable inference that the damage

       amount for the Class A misdemeanor offense has been established. Cf. Halsema

       v. State, 823 N.E.2d 668, 673-74 (Ind. 2005) (“jury may rely on its collective

       common sense and knowledge acquired through everyday experiences” and,

       thus, the quantity of a drug or controlled substance may be “so large as to

       permit a reasonable inference that the element of weight has been established”).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017   Page 8 of 9
                                                  Conclusion


[20]   On remand, the trial court is directed to vacate the convictions and sentences

       entered on Counts II and VII. Landy’s convictions on Counts I, III, V, VI, and

       VIII stand.


[21]   Judgment affirmed in part, reversed in part, and remanded.


       Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-769 | November 9, 2017   Page 9 of 9
