MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Mar 07 2019, 9:23 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tracy Perry,                                             March 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2473
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                      The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1807-CM-23772



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2473 | March 7, 2019                 Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tracy Perry (Perry), appeals his conviction for Count I,

      battery, as a Class A misdemeanor, Ind. Code § 35-42-2-1(c)(1); and Count II,

      criminal mischief, a Class B misdemeanor, I.C. § 35-43-1-2(a).


[2]   We reverse and remand.


                                                    ISSUE
[3]   Perry presents this court with one issue on appeal, which we restate as:

      Whether Perry’s conviction for battery and criminal mischief violated his right

      to be free from double jeopardy under the Indiana Constitution.


                      FACTS AND PROCEDURAL HISTORY
[4]   On the morning of July 21, 2018, Perry walked to John Crump’s

      (Crump)residence to ask to borrow Crump’s cell phone. Crump obliged and

      Perry walked back to his own house with the cell phone. After about twenty to

      thirty minutes, Crump realized that Perry had yet to return his cell phone.

      Crump asked his friend, Royce Boss (Boss), who was staying with him, to

      accompany him to Perry’s house to get his cell phone back. Crump wanted

      help to get his phone because he believed Perry to be intoxicated and “it kind of

      scared” Crump. (Transcript p. 8).


[5]   Crump and Boss met Perry in the alley between the two houses. Perry

      approached Crump until he was about an arm’s length away. Perry “brought

      the phone out to the alley and then hit [Crump] with the phone.” (Tr. p. 4).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2473 | March 7, 2019   Page 2 of 6
      Although the phone already had a small crack in it before Perry borrowed it,

      “the whole phone got smashed” “when it hit [Crump’s] face.” (Tr. pp. 4, 5).

      Perry took the phone “with his hand and he just went –smashed it into

      [Crump’s] face.” (Tr. p. 12). There was no toss. The phone “left [Perry’s]

      hand after he dropped it after he hit [Crump] in the face.” (Tr. p. 12). Perry’s

      action left a visible mark on Crump’s face and caused damage to the cell phone,

      such that it was no longer possible to see numbers or text clearly on the screen.


[6]   Crump called 911, and shortly thereafter Officer Charles Hudson (Officer

      Hudson) of the Indianapolis Metropolitan Police Department arrived. Officer

      Hudson observed the marks and redness on Crump’s face, as well as the

      damage to Crump’s cell phone. After speaking with Crump, Officer Hudson

      spoke with Perry at his house. Perry appeared intoxicated: he slurred his

      speech, his eyes were glossy, and the smell of alcohol emanated from his breath.


[7]   On July 22, 2018, the State filed an Information, charging Perry with Count I,

      battery, as a Class A misdemeanor, and Count II, criminal mischief, as a Class

      B misdemeanor. On September 14, 2018, the trial court conducted a bench

      trial, at the close of which it found Perry guilty as charged and sentenced him to

      112 days in the Marion County Jail on each Count, with both Counts to run

      concurrently, and restitution in the amount of $90.


[8]   Perry now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2473 | March 7, 2019   Page 3 of 6
                               DISCUSSION AND DECISION
[9]    Perry contends that the trial court’s conviction of both charges—battery and

       criminal mischief—violated the very same act test under Indiana’s double

       jeopardy clause as both crimes were based on the same, single act of hitting

       Crump’s face with a cell phone.


[10]   Article 1, Section 14, of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” Our supreme court has

       interpreted that clause to prohibit multiple convictions based on the same

       “actual evidence used to convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999). To determine the actual evidence used to establish a conviction, we look

       to the “evidentiary facts” as they relate to “all” of the elements of both offenses.

       Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). In other words, the actual

       evidence test requires “the evidentiary footprint for all the elements required to

       prove an offense to be “the same evidentiary footprint as that required to prove

       all the elements of another offense.” Thrash v. State, 88 N.E.3d 198, 208 (Ind.

       Ct. App. 2017) (quoting Berg v. State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015)).


[11]   However, in addition to the constitutional test prescribed by Richardson, the

       Indiana Supreme Court has “long adhered to a series of rules of statutory

       construction and common law that are often described as double jeopardy[] but

       are not governed by the constitutional test set forth in Richardson.” Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002). Our supreme court has concluded

       that in Indiana the very same act test is a test apart from the actual evidence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2473 | March 7, 2019   Page 4 of 6
       test. Id. As such, the very same act test applies when the defendant’s

       “behavior” underlying one offense is “coextensive with the behavior . . .

       necessary to establish an element of” another offense. Taylor v. State, 101

       N.E.3d 865, 872 (Ind. Ct. App. 2018), reh’g denied; Bradley v. State, 113 N.E.3d

       742, 752 (Ind. Ct. App. 2018), reh’g denied.


[12]   We must conclude that Perry’s convictions are in violation of the same act test

       under Indiana’s double jeopardy clause, as there is a “reasonable possibility”

       that the behavior underlying Count I was coextensive with the behavior

       underlying his conviction for Count II. Bradley, 113 N.E.3d at 752. A

       “reasonable possibility” turns on a practical assessment of whether the jury may

       have latched on to exactly the same facts for both convictions. Lee v. State, 892

       N.E.2d 1231, 1236 (Ind. 2008). In determining the facts used by the jury to

       establish the elements of each offense, we consider the charging information,

       jury instructions, and arguments of counsel. Id. at 1234.


[13]   While the jury instructions are not included in the record, the charging

       information does not specifically identify an act on which to base the separate

       Counts. In closing argument, the State argued that Perry and Crump had an

       incident in the alley, “Crump gets hit in the face with it, the phone falls, it

       breaks.” (Tr. p. 36). However, although the State presented an argument based

       on two separate acts—a hit in the face and a dropped phone—Crump himself

       never testified to this. Crump unequivocally stated that “the whole phone got

       smashed” “when it hit [his] face.” (Tr. pp. 4, 5). Perry took the phone “with

       his hand and he just went –smashed it into [Crump’s] face.” (Tr. p. 12).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2473 | March 7, 2019   Page 5 of 6
       During questioning, the State even clarified with Crump that “[a]fter [Perry] hit

       you in the face with the phone, was there damage to the phone?” to which

       Crump replied affirmatively. (Tr. p. 4). As there is a reasonable probability

       that the same behavior—hitting Crump in the face with the cell phone—formed

       the factual bases for Count I and Count II, Perry’s convictions for the very same

       act violate Indiana’s double jeopardy protections. Accordingly, we vacate 1

       Perry’s conviction for Count II, criminal mischief, 2 and remand to the trial

       court for further proceedings in accordance with this opinion.


                                               CONCLUSION
[14]   Based on the foregoing, we hold that Perry’s double jeopardy protection under

       the Indiana Constitution was violated, and we vacate his conviction for

       criminal mischief.


[15]   Reversed and remanded.


[16]   Kirsch, J. and Robb, J. concur




       1
        Pursuant to Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999), the appropriate remedy for a double jeopardy
       violation is to reduce either conviction to a less serious form of the offense if so doing will eliminate the
       double jeopardy violation; if not, the conviction with the less severe penal consequences must be vacated. As
       both convictions are based on the same behavior, our only option is to vacate Count II.
       2
        Perry concedes that vacating Count II does not affect the restitution order of $90 for the damage to Crump’s
       cell phone as I.C. § 35-50-5-3 provides that a restitution order may be based on “property damages of the
       victim incurred as a result of the crime.” The State presented sufficient evidence that the phone was
       damaged as a result of the battery in Count I.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2473 | March 7, 2019                     Page 6 of 6
