                                                                      Jun 04 2015, 9:31 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                       Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana

                                                                Cynthia L. Ploughe
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Justin Brewer,                                            June 4, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                82A05-1410-CR-458
              v.                                                Appeal from the Vanderburgh Circuit
                                                                Court
      State of Indiana,
                                                                The Honorable David D. Kiely,
      Appellee-Plaintiff.                                       Judge

                                                                Cause No. 82C01-1310-FA-1075




      Najam, Judge.


                                        Statement of the Case
[1]   Justin Brewer appeals his convictions for auto theft, as a Class D felony, and

      resisting law enforcement, as a Class D felony, following a jury trial. Brewer

      raises a single issue for our review, namely, whether his convictions violate


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      Indiana’s statutory prohibition against double jeopardy when Brewer had been

      convicted in the Commonwealth of Kentucky for the same or similar conduct.

      We affirm in part, reverse in part, and remand with instructions.


                                  Facts and Procedural History
[2]   On September 7, 2013, Brewer stole Mohammed Alnasser’s orange Dodge

      Challenger in Vanderburgh County. Alnasser immediately reported the theft to

      9-1-1 and described Brewer. Shortly thereafter, Evansville Police Department

      Officer Shawn Chapman observed Brewer driving the Challenger, and Officer

      Chapman attempted to initiate a traffic stop. But Brewer “slammed the

      accelerator” and “took off.” Tr. at 188. Officer Chapman pursued Brewer at

      high speed, but Officer Chapman’s vehicle did not have “near as much horse

      power” as the Challenger. Id. at 189.


[3]   Meanwhile, Officer Chris Keller of the Henderson County, Kentucky, Sheriff’s

      office received a call from the Evansville Police Department that a stolen

      orange Challenger was “coming or getting ready to come into Henderson.” Id.

      at 170. Officer Keller positioned his vehicle to intercept Brewer, but Brewer

      “cut[] through [a] . . . parking lot at a high rate of speed” and fled from Officer

      Keller. Id. at 171. Eventually, Brewer lost control of the Challenger and struck

      a utility pole. He then surrendered to Officer Keller.


[4]   In January of 2014, Brewer pleaded guilty in a Henderson County, Kentucky,

      court to, in relevant part, “Receiving Stolen Property” by “knowingly and

      unlawfully possessing property . . . knowing the property was stolen.”

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      Appellant’s App. at 36, 40. Brewer also pleaded guilty to “Fleeing/Evading the

      Police by knowingly and unlawfully operating a motor vehicle with the intent

      to elude or evade in a manner that created a substantial risk of serious injury or

      death to any person or property.” Id. at 37, 40. Both of those convictions were

      entered as felony convictions under Kentucky law.


[5]   On August 5, 2014, an Indiana jury found Brewer guilty of auto theft, as a Class

      D felony, and resisting law enforcement, as a Class D felony, based on his

      September 7, 2013, offenses. On September 5, Brewer requested that the trial

      court vacate the jury’s verdicts pursuant to Indiana Code Section 35-41-4-5.

      The trial court denied Brewer’s motion and entered judgment and sentence

      accordingly. This appeal ensued.


                                      Discussion and Decision
[6]   Brewer asserts that his Indiana convictions and his Kentucky convictions

      contravene Indiana’s statutory prohibitions against double jeopardy. As we

      have explained:


              Although the Indiana and United States Constitutions provide no
              protection from double jeopardy as between “dual sovereigns,”
              Indiana has provided statutory protection against double
              jeopardy in such situations. See State v. Allen, 646 N.E.2d 965,
              967-68 (Ind. Ct. App. 1995), trans. denied. Indiana’s double
              jeopardy statute provides:

                       In a case in which the alleged conduct constitutes an
                       offense within the concurrent jurisdiction of Indiana
                       and another jurisdiction, a former prosecution in
                       any other jurisdiction is a bar to a subsequent

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                       prosecution for the same conduct in Indiana, if the
                       former prosecution resulted in an acquittal or a
                       conviction of the defendant or in an improper
                       termination under section 3 of this chapter.

              Ind. Code § 35-41-4-5 (West 2004). That is, a former conviction
              in any other jurisdiction bars subsequent prosecution by this State
              for the “same conduct.” Allen, 646 N.E.2d at 968.

              Whether a prosecution is barred by double jeopardy is a question
              of law. Id. at 972. This determination is made by considering
              the “overt acts” alleged in the sister jurisdiction’s charge in
              juxtaposition with the allegation in the State’s charge. See id.
              Because the prosecution here involves a former conviction in
              Kentucky, the double jeopardy question in this case is one of
              statutory construction rather than of constitutional dimension.
              See id.


      Swenson v. State, 868 N.E.2d 540, 542 (Ind. Ct. App. 2007).


[7]   Brewer asserts that his January 2014 Kentucky convictions for receiving stolen

      property and fleeing/evading the police bar Indiana’s prosecution of him for,

      respectively, auto theft and resisting law enforcement. The State concedes that

      Brewer’s Kentucky conviction for receiving stolen property prohibited Indiana’s

      prosecution of him for auto theft. Accordingly, we reverse the trial court’s entry

      of conviction against Brewer for that offense and remand with instructions that

      the court vacate Brewer’s conviction and sentence for auto theft, as a Class D

      felony.


[8]   However, we agree with the State that Brewer’s Kentucky conviction for

      fleeing/evading the police does not prohibit Indiana from prosecuting Brewer

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      for resisting law enforcement. According to Brewer, he committed one act of

      fleeing from the police, although he crossed state lines during that act. Brewer

      also asserts that, although Indiana’s statute on resisting law enforcement “is not

      a crime against the person” of the officer but “harms the peace and dignity of

      the State,” Vest v. State, 930 N.E.2d 1221, 1227 (Ind. Ct. App. 2010), trans.

      denied, nonetheless allowing two sovereigns to prosecute him on these facts

      would be contrary to our double jeopardy statute.


[9]   Brewer’s reading of the double jeopardy statute is erroneous. The statute only

      applies when “the alleged conduct constitutes an offense within the concurrent

      jurisdiction of Indiana and another jurisdiction.” I.C. § 35-41-4-5. That is not

      the case with respect to his Kentucky conviction for fleeing from the Kentucky

      officer and his Indiana conviction for resisting Indiana’s law enforcement.

      Brewer’s act of fleeing/evading Officer Keller of the Henderson County,

      Kentucky, Sheriff’s Department was an offense wholly within the jurisdiction of

      the Commonwealth; Indiana has no jurisdiction to prosecute Brewer for his act

      of fleeing/evading a Kentucky officer within Kentucky. Likewise, Brewer’s

      offense of resisting Officer Chapman of the Evansville, Indiana, Police

      Department was wholly within Indiana’s jurisdiction; Brewer cites no authority

      for the proposition that Kentucky could—or did—prosecute him for his act of

      resisting Indiana’s law enforcement within Indiana. See Vest, 930 N.E.2d at

      1227. Thus, the alleged conduct underlying Brewer’s Indiana conviction for

      resisting law enforcement is not “within the concurrent jurisdiction of Indiana




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       and another jurisdiction.” I.C. § 35-41-4-5. Accordingly, the double jeopardy

       statute did not prohibit Indiana’s prosecution of Brewer for this offense.


[10]   In sum, we accept the State’s concession that the double jeopardy statute

       prohibited the State’s prosecution of Brewer for auto theft. We also agree with

       the State that the statute did not prohibit the State’s prosecution of Brewer for

       resisting law enforcement. Accordingly, we affirm in part, reverse in part, and

       remand with instructions for the trial court to vacate Brewer’s conviction and

       sentence for auto theft, as a Class D felony.


[11]   Affirmed in part, reversed in part, and remanded with instructions.


       Baker, J., and Friedlander, J., concur.




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