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                             Jun 25 2019, 10:37 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
R. Thomas Lowe                                           Curtis T. Hill, Jr.
Lowe Law Office                                          Attorney General of Indiana
New Albany, Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Wayne Vest,                                      June 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2469
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Andrew Adams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         10C01-1702-F5-37



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019                      Page 1 of 5
                                          Case Summary
[1]   In June of 2018, Michael Wayne Vest was convicted of, inter alia, Level 5

      felony robbery and Class A misdemeanor theft. Vest contends, and the State

      agrees, that his convictions violate the prohibition against double jeopardy

      pursuant to Article 1, Section 14 of the Indiana Constitution. We agree and

      vacate Vest’s theft conviction.



                            Facts and Procedural History
[2]   On February 4, 2017, Haley Beyl was sitting in her vehicle waiting for her shift

      at Logan’s Steakhouse in Clarksville to start when Vest opened her driver’s-side

      door and demanded that she “get out of the car.” Tr. Vol. II p. 110. Vest then

      stated, “I have a gun, get out of the car. I need your car.” Id. Vest eventually

      pulled Beyl from the vehicle and drove away. A few hours later, Beyl’s vehicle

      was discovered parked at a motel, and Vest was apprehended by police in

      possession of Beyl’s car keys and bank card.


[3]   On February 7, 2017, the State charged Vest with Count I, Level 5 felony

      robbery; Count II, Level 6 felony auto theft; Count III, Level 6 felony unlawful

      possession of a syringe; and Count IV, Class A misdemeanor theft and alleged

      him to be a habitual offender. On June 5, 2018, a jury trial was held, and Vest

      was found guilty as charged and admitted to being a habitual offender. The trial

      court dismissed Count II, finding that it was a lesser-included offense of Count

      I. The trial court sentenced Vest on Count I to six years with two years


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019   Page 2 of 5
      suspended to probation, on Count III to two-and-one-half years, on Count IV to

      one year, and six years on the habitual offender enhancement. The trial court

      further ordered that Counts I, III, and IV be served concurrently, for an

      aggregate sentence of twelve years of incarceration with two of those years

      suspended to probation.



                                 Discussion and Decision
[4]   Vest contends, and the State agrees, that his convictions for Level 5 felony

      robbery and Class A misdemeanor theft violate the prohibition against double

      jeopardy. Whether convictions violate double jeopardy is a question of law

      which we review de novo. Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App.

      2012).


               Article 1, Section 14 of the Indiana Constitution provides that
               [n]o person shall be put in jeopardy twice for the same offense. In
               Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our Supreme
               Court concluded that two or more offenses are the same offense
               in violation of Article 1, Section 14 if, with respect to either the
               statutory elements of the challenged crimes or the actual evidence
               used to obtain convictions, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense. 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.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019   Page 3 of 5
      Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (internal citations

      and quotations omitted). “Application of the actual evidence test requires the

      reviewing court to identify the essential elements of each of the challenged

      crimes and to evaluate the evidence from the jury’s perspective, considering

      where relevant the jury instructions, argument of counsel, and other factors that

      may have guided the jury’s determination.” Spivey v. State, 761 N.E.2d 831, 832

      (Ind. 2002).


[5]   We agree with both Vest and the State that his convictions violate the

      prohibition against double jeopardy. During closing argument, the prosecutor

      stated that


              the list goes on and on of situations where, when you commit an
              act, you might be in violation of different statutes. And there are
              a variety of legal reasons for doing this that I won’t go into now,
              but it’s common for Prosecutors to charge the different statutes
              that are violated. And that’s what’s been done in this case.
              Essentially, there was a robbery of her, her car and what was in it
              and that’s the first Count. And then this auto theft and this theft
              are alternative Counts that are also statutes that were violated
              when this happened. And what will happen, as a matter of law, is
              I, as a Prosecutor, will say, yes, this conduct violated all of these
              statutes, so please come back and convict on each of those.
              When you go to the jury room, please find him guilty of each.
              Because, as a matter of law, what will happen is when the Judge
              comes time to sentence him and enter convictions, he will only
              enter convictions on the most highest on that Count and not the
              other two (2), if you convict on them. And so, it’s not like he’s
              going to get sentenced and convicted on multiple things based on
              the same incident ultimately.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019   Page 4 of 5
      Tr. Vol. II pp. 221–22. Given the prosecutor’s closing argument, we agree with

      the parties that there is a reasonable possibility that the evidentiary facts used by

      the fact-finder to establish the essential elements of robbery were also used to

      establish the essential elements of theft.


[6]   Vest’s conviction for Class A misdemeanor theft is vacated.


      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019   Page 5 of 5
