MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               May 30 2018, 6:33 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General
Appellate Division
Indianapolis, Indiana                                    Ellen H. Meilaender
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

G.K.,                                                    May 30, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1711-JV-2540
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marilyn A. Moores,
Appellee-Petitioner                                      Judge
                                                         The Honorable Geoffrey A. Gaither,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1706-JD-795



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018           Page 1 of 9
                                             Case Summary
[1]   G.K. appeals true findings for conduct constituting level 6 felony receiving

      stolen auto parts and level 6 felony theft if committed by an adult. He argues

      that these true findings violate his federal and state constitutional protections

      against double jeopardy because he had been previously acquitted of these

      counts. We agree, and therefore we vacate the true findings and remand for

      resentencing.


                                 Facts and Procedural History
[2]   On June 9, 2017, the State filed, and the trial court subsequently approved, a

      delinquency petition, alleging that on or about June 8, 2017, G.K. committed

      acts that would constitute the following offenses if committed by an adult:

      Count 1, level 6 felony receiving stolen auto parts by knowingly or intentionally

      receiving John Schott’s motor vehicle, which had been the subject of theft;

      Count 2, level 6 felony theft by knowingly or intentionally exerting

      unauthorized control over Schott’s vehicle safety seats; and Count 3, class A

      misdemeanor criminal trespass by knowingly or intentionally interfering with

      the possession or use of Schott’s property without his consent.


[3]   On the morning of August 17, 2017, Magistrate Gaither presided over a denial

      hearing for G.K. and two other juveniles, D.W. and N.M., who faced the same

      three delinquency allegations. After the presentation of evidence, Magistrate

      Gaither ruled as follows:




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018   Page 2 of 9
              [A]s to [G.K.], I’m gonna enter a true finding as to the sole count
              of criminal trespass. [A]s to [D.W.], I’m going to enter a true
              finding as to receiving stolen auto parts, theft, and criminal
              trespass. [A]s to [N.M.] true finding as to receiving stolen auto
              parts, theft, and criminal trespass.


      Tr. Vol. 2 at 33. When the trial court asked the State whether there was

      anything else, the deputy prosecutor answered, “No, Your Honor.” Id. at 34.


[4]   That afternoon, the trial court issued two orders. One order, the “Order on

      Fact Finding Hearing,” designated “Not True” findings for Counts 1 and 2 and

      a “True” finding for Count 3. Appellant’s App. Vol. 2 at 61. Consistent with

      this order, an entry in the chronological case summary (“CCS”) provides, “3 –

      Criminal Trespass (I.C. 35-43-2-2(b)(4)), a Class A Misdemeanor, Petition

      170608040 Found True by Trial.” Id. at 11. The other order issued by the trial

      court was the “Clarification Order on Fact Finding” (“Clarification Order”),

      which provided, “The Court orders this matter scheduled for ruling hearing as

      to fact finding to clarify the court’s order on true findings of Counts 1 and 2.”

      Id. at 59. Both orders were recommended and signed by Magistrate Gaither

      and approved, ordered, and signed by the judge pro tem who was sitting for the

      presiding trial court judge. Id. at 59, 61. Also, both orders were recorded in the

      CCS. Id. at 11. While the record is not clear as to the sequence of the

      execution of the two orders, the only logical conclusion is that the Order on

      Fact Finding Hearing was entered before the Clarification Order. This is

      because it is logically inconceivable to set a hearing to clarify an order that has



      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018   Page 3 of 9
      not been entered. In other words, if the acquittals had never been entered, a

      clarification hearing would not have been necessary.


[5]   On August 24, 2017, Magistrate Gaither held the ruling hearing, which he

      began by announcing, “Ruling on a hearing. Oh yeah. [T]his was my error.”

      Supp. Tr. Vol. 2 at 4. He then made the following statement:


                We were here on that fact-finding, and at the conclusion, I found
                [G.K.] true of a trespass only. I did not have the entirety of the
                petition, of all the charges in the petition, and I misread the
                petition that I had in front of me. [I]t was my intent to show true
                of all the charges that had been filed–I’m trying to find that now.
                Here it is. Yeah, I found him true of the misdemeanor of criminal
                trespass, and I omitted findings for count 1, receiving stolen auto
                parts, a level six felony, and count 2, theft, as a level six felony as
                well. [A]t this time, I’m entering true findings as to count[s] one
                and two, which I omitted the finding[s] at the conclusion of the
                hearing. So, we have a disposition date set already, and I know
                that there’s a meeting date set for [G.K.’s mother] to meet with
                his probation officer. Now I just really wanted to correct the
                record cause I discovered my error after you left, and I apologize
                for the inconvenience it has cause[d] you to come back and take
                more time off, but I just wanted to make sure that I was in order
                in this. [C]ounsel, do you have anything else?


      Id.1 G.K.’s counsel objected to the true findings, arguing that the court was

      reversing “not true” findings. Id. at 5. Magistrate Gaither responded, “[I] did

      not have the charging information in front of me, and I had one that was on a

      different date, and I just misread the date. And so, it appears that it was



      1
          When quoting from the transcript, we have omitted all vocal hesitations.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018   Page 4 of 9
      another charging information for [G.K.] on a sole count of trespass.” Id.

      G.K.’s counsel noted that a not true finding on that count had been entered a

      few weeks prior. Magistrate Gaither then continued,




              I had the old one in front of me, except for the one that would
              relate it to [this] matter, so I–it wasn’t that I found him not true
              of the other charges, I didn’t have them in front of me. That’s
              probably the downside of not having files, everything on the
              chronology, so that’s not entirely accurate that I’m reversing. I
              made no finding to the other two charges. I didn’t have ’em
              physically in front of me, so I mean, that was an omission, I
              think, but not an error. [S]urely–I guess, having–given it to do all
              over again, I would have done it differently, I’m sure.


      Id. at 5-6.


[6]   On October 5, 2017, the trial court issued a dispositional order designating true

      findings for all three counts, imposing a suspended commitment to the

      Department of Correction, placing G.K. on probation with forty hours of

      community service. This appeal ensued.


                                     Discussion and Decision
[7]   G.K. argues that the true findings on Counts 1 and 2 violate the protections

      against double jeopardy in the Fifth Amendment to the United States

      Constitution and Article 1, Section 14 of the Indiana Constitution. “Both the

      United States and Indiana constitutions prohibit a second prosecution for the

      same offense after an acquittal, a second prosecution for the same offense after

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018   Page 5 of 9
      a conviction, and multiple punishments for the same offense.” Wilcox v. State,

      748 N.E.2d 906, 909 (Ind. Ct. App. 2001), trans. denied. “[T]he Double

      Jeopardy Clause bars retrial following a court-decreed acquittal, even if the

      acquittal is ‘based upon an egregiously erroneous foundation.’” Evans v.

      Michigan, 568 U.S. 313, 318 (2013) (quoting Fong Foo v. United States, 369 U.S.

      141, 143 (1962)). Whether the true findings on Counts 1 and 2 violate double

      jeopardy principles is a question of law, which we review de novo. Grabarczyk

      v. State, 772 N.E.2d 428, 432 (Ind. Ct. App. 2002).


[8]   According to G.K., he was acquitted of Counts 1 and 2 at the denial hearing as

      reflected in the Order on Fact Finding Hearing, and it is of no moment that the

      acquittal was erroneous. The State “does not disagree that if an accused has

      been acquitted, that verdict is final and he cannot thereafter be convicted of that

      offense, even if the acquittal is legally erroneous.” Appellee’s Br. at 8.

      However, the State asserts that the trial court did not acquit G.K. of Counts 1

      and 2 because it was silent as to those counts when it pronounced its ruling on

      criminal trespass. The State further contends that the entry of “Not True”

      findings on the Order on Fact Finding Hearing does not reflect what happened

      at the denial hearing; the State argues that this constitutes “a clear clerical

      error,” which is not what “the caselaw means by an ‘erroneous’ acquittal,” and

      that the order should have no preclusive effect. Id. at 10-11.


[9]   The threshold question is whether G.K. was acquitted of Counts 1 and 2. After

      the evidence was presented at the denial hearing, the court ruled that it would

      enter a “true finding as to the sole count of criminal trespass.” Tr. Vol. 2 at 33.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018   Page 6 of 9
       When the court addressed G.K.’s co-respondents, it found true findings for

       “receiving stolen auto parts, theft, and criminal trespass.” Id. The clear

       implication of the court’s ruling as to G.K. was that it was entering not true

       findings for receiving stolen auto parts and theft. Even if there was any

       ambiguity in the court’s ruling, it was resolved by the issuance of the Order on

       Fact Finding Hearing, which designated “Not True” findings for Counts 1 and

       2. Appellant’s App. Vol. 2 at 61. That order was recommended and signed by

       Magistrate Gaither, and it was approved, ordered, and signed by the judge pro

       tem. Thus, contrary to the State’s assertion, the “Not True” findings for Counts

       1 and 2 entered in the Order on Fact Finding Hearing cannot reasonably be

       described as scrivener’s or clerical errors.


[10]   An error did indeed occur here, but it was not a clerical error. At the August

       24, 2017 ruling hearing, Magistrate Gaither explained that he made an error by

       looking at the wrong delinquency petition. The United States Supreme Court

       opinion in Evans indicates that an erroneous acquittal is precisely what occurred

       here.


[11]   There, the State of Michigan charged Evans with arson. At his trial, the trial

       court granted his motion for directed verdict based on its conclusion that the

       State failed to prove an element of arson which was not actually an element of

       arson. The State of Michigan argued that the acquittal should not be an

       acquittal for double jeopardy purposes because the trial court found Evans

       innocent solely based on the lack of evidence on something that was not an

       element on the offense and failed to consider the adequacy of evidence on even

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018   Page 7 of 9
one actual element of arson. In considering whether the erroneous acquittal

was an acquittal for double jeopardy purposes, the Supreme Court explained:


        [A]n acquittal precludes retrial even if it is premised upon an
        erroneous decision to exclude evidence, a mistaken
        understanding of what evidence would suffice to sustain a
        conviction, or a misconstruction of the statute defining the
        requirements to convict. In all these circumstances, the fact that
        the acquittal may result from erroneous evidentiary rulings or
        erroneous interpretations of governing legal principles affects the
        accuracy of that determination, but it does not alter its essential
        character.


        Most relevant here, our cases have defined an acquittal to
        encompass any ruling that the prosecution’s proof is insufficient to
        establish criminal liability for an offense. Thus an “acquittal”
        includes a ruling by the court that the evidence is insufficient to
        convict, a factual finding [that] necessarily establishes the
        criminal defendant’s lack of criminal culpability, and any other
        ruling which relates to the ultimate question of guilt or innocence. These
        sorts of substantive rulings stand apart from procedural rulings
        that may also terminate a case midtrial, which we generally refer
        to as dismissals or mistrials. Procedural dismissals include
        rulings on questions that are unrelated to factual guilt or
        innocence, but which serve other purposes, including a legal
        judgment that a defendant, although criminally culpable, may
        not be punished because of some problem like an error with the
        indictment.


568 U.S. 313 at 318-20 (citations, quotation marks, and brackets omitted)

(emphases added). Turning to the circumstances in Evans’s case, the Supreme

Court held that “[t]he trial court’s judgment of acquittal resolved the question of

Evans’ guilt or innocence as a matter of the sufficiency of the evidence, not on

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JV-2540| May 30, 2018   Page 8 of 9
       unrelated procedural grounds. That judgment, ‘however erroneous’ it was,

       precludes reprosecution on this charge.” Id. at 324.


[12]   Here, the effect of the trial court’s ruling at the denial hearing and the Order on

       Fact Finding Hearing was to establish that G.K. was not culpable of Counts 1

       and 2. We conclude that G.K. was acquitted of Counts 1 and 2, and therefore

       the subsequent entry of true findings for those counts violates double jeopardy

       principles. See id.; see also State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989) (trial

       court’s erroneous grant of Lewis’s motion for judgment on the evidence after

       declaring mistrial upon deadlock and dismissal of the jury was nevertheless an

       acquittal which terminated Lewis’s jeopardy on the charge); State v. Taylor, 863

       N.E.2d 917, 920-21 (Ind. Ct. App. 2007) (although trial court erroneously acted

       as thirteenth juror in granting Taylor’s motion for a judgment on the evidence,

       “the erroneous entry of acquittal by the trial court acts as an acquittal for double

       jeopardy purposes”); State v. Casada, 825 N.E.2d 936, 940 (Ind. Ct. App. 2005)

       (“Despite the erroneous judgment on the evidence for Casada, he cannot be

       retried because an erroneous entry of acquittal by the trial court acts as an

       acquittal for double jeopardy purposes”). Accordingly, we vacate the true

       findings for those counts and remand for resentencing.


[13]   Vacated and remanded.


       Bailey, J., and Brown, J., concur.




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