                                                                            FILED
                                                                       Jul 17 2019, 8:46 am

                                                                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                       Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                     Attorney General of Indiana
Brooklyn, Indiana                                           Josiah Swinney
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jesse L. Smith,                                             July 17, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2597
        v.                                                  Appeal from the Vigo Superior
                                                            Court
State of Indiana,                                           The Honorable Sarah K. Mullican,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            84D03-1803-F3-929



Pyle, Judge.


                                   Statement of the Case




Court of Appeals of Indiana | Opinion 18A-CR-2597 | July 17, 2019                              Page 1 of 7
[1]   Jesse Smith (“Smith”) appeals his conviction for Level 6 felony criminal

      recklessness,1 claiming that his convictions for Level 3 felony attempted

      aggravated battery and Level 6 felony criminal recklessness violate Indiana’s

      Double Jeopardy Clause. Concluding that the actual evidence presented at trial

      supports separate convictions, we affirm Smith’s conviction.

[2]   We affirm.

                                                       Issue
                 Whether Smith’s convictions violate Indiana’s double jeopardy
                 prohibition.

                                                       Facts
[3]   Smith and Orville Johnson (“Johnson”) were both dating Smith’s brother’s

      estranged wife Roxanne Smith (“Roxanne”). On the night of March 16, 2018,

      Johnson and Smith planned to meet up and fight each other at a local Family

      Video store in Terre Haute. However, the two mistakenly traveled to different

      Family Video store locations. When they spoke on the phone trying to figure

      out where the other one was, Johnson called off the fight and told Smith that he

      was going to a McDonald’s restaurant instead to get something to eat.

[4]   Johnson then went to a nearby McDonald’s with some friends, including Jlee

      Betz (“Betz”). While at the McDonald’s, Johnson spoke to Smith on the phone

      again, and the two men started arguing. Smith soon arrived at the McDonald’s

      accompanied by Roxanne.




      1
          IND. CODE § 35-42-2-2(B)(1).


      Court of Appeals of Indiana | Opinion 18A-CR-2597 | July 17, 2019           Page 2 of 7
[5]   Once Johnson and his friends realized that Smith had come to the McDonald’s,

      they stepped outside to confront him. By this time, Smith and Roxanne had

      entered the McDonald’s drive-thru line. Johnson and his friends waited for

      Smith to finish at the drive-thru window, and then Betz walked up to Smith’s

      truck. Smith pointed a gun at him and told him not to come any closer. As

      Betz turned around and retreated to the curb, he heard a gunshot and the squeal

      of Smith’s vehicle tires behind him. Johnson heard Smith fire multiple

      gunshots.

[6]   Betz then turned back around to face Smith’s truck. Betz pulled out his gun

      and fired twice at Smith. Smith sped his truck out of the parking lot onto

      Lafayette Street, drove away from the restaurant, and then made a U-turn so

      that he could return to the scene. Smith drove back by the McDonald’s, aimed

      toward the building and fired his gun multiple times, shattering one of the

      McDonald’s windows. As this happened, Betz tried to protect bystanders both

      in and out of the restaurant, urging them to lie on the ground. When police

      arrived at the scene, Betz provided his weapon to them.

[7]   The next morning, police found Smith hiding in the basement of Roxanne’s

      friend’s house. The State subsequently charged Smith with one count of Level

      3 felony attempted aggravated battery, Level 5 felony carrying a handgun

      without a license, Level 6 criminal recklessness, Level 6 felony operating a

      vehicle as a habitual traffic violator, and Class A misdemeanor carrying a

      handgun without a license.

[8]   In August 2018, the trial court held a three-day jury trial. During closing

      arguments, the prosecuting attorney brought up both shooting incidents – the

      Court of Appeals of Indiana | Opinion 18A-CR-2597 | July 17, 2019         Page 3 of 7
       shots Smith fired at Betz in the parking lot and the shots Smith fired at the

       McDonald’s building while driving on Lafayette Street – when discussing the

       criminal recklessness charge. (See Tr. Vol. 3 at 115 (“Now, Criminal

       Recklessness, he actually committed twice. You can find the Criminal

       Recklessness in that he … fired at [Betz]”); Tr. Vol 3 at 116 (“The other

       Criminal Recklessness is when he was out on . . . Lafayette and fired back again

       at the . . . building, or at the people . . . there at the building.”)).

[9]    Regarding the aggravated battery charge, the prosecutor argued that Smith went

       to the McDonald’s upset and looking for trouble and directed that anger at

       Betz. The prosecutor mentioned the shots that Smith fired while Betz’s back

       was turned as well as Smith’s attempt to strike Betz with his truck. (See Tr. Vol

       3 at 117 (“[Smith] also said … that he drove up on the curb and tried to hit

       [Betz] with the car. So, this is a guy that is clearly attempting aggravated

       battery.”)). In his closing rebuttal argument, the prosecutor again discussed the

       shots that Smith fired at Betz while the two were in the McDonald’s parking

       lot.

[10]   The jury subsequently found Smith guilty on all counts. Smith now appeals.

                                                     Decision
[11]   On appeal, Smith argues that his convictions for Level 3 felony attempted

       aggravated battery and Level 6 felony criminal recklessness violate Indiana’s

       Double Jeopardy Clause. For the reasons below, we affirm Smith’s

       convictions.




       Court of Appeals of Indiana | Opinion 18A-CR-2597 | July 17, 2019           Page 4 of 7
[12]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” Two offenses are the same

       offense for double jeopardy purposes if, “with respect to either the statutory

       elements of the challenged crimes or the actual evidence used to convict, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999) (emphasis omitted). Under the actual evidence test, “the actual evidence

       presented at trial is examined to determine whether each challenged offense

       was established by separate and distinct facts.” Id. at 53. 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.” Id.


[13]   A “reasonable possibility” requires substantially more than a logical possibility,

       and “turns on a practical assessment of whether the [fact-finder] may have

       latched on to exactly the same facts for both convictions.” Garrett v. State, 992

       N.E.2d 710, 719–20 (Ind. 2013). “We evaluate the evidence from the [fact

       finder's] perspective and may consider the charging information, jury

       instructions, and arguments of counsel.” Id. at 720. Whether multiple

       convictions violate double jeopardy is a question of law, which this Court

       reviews de novo. Black v. State, 79 N.E.3d 965, 975 (Ind. Ct. App. 2017).


[14]   Under INDIANA CODE § 35-42-2-1.5, a person commits aggravated battery

       when he “knowingly or intentionally inflicts injury on a person that creates a

       Court of Appeals of Indiana | Opinion 18A-CR-2597 | July 17, 2019            Page 5 of 7
       substantial risk of death[.]” INDIANA CODE § 35-41-5-1 makes it a crime to

       attempt to commit aggravated battery. Under INDIANA CODE § 35-42-2-2(a), a

       person commits criminal recklessness if he “recklessly, knowingly, or

       intentionally performs an act that creates a substantial risk of bodily injury to

       another person.” The offense is “a Level 6 felony if … it is committed while

       armed with a deadly weapon.” I. C. § 35-42-2-2(b)(1).


[15]   Here, Smith argues that although attempted aggravated battery and criminal

       recklessness do not share identical statutory elements, the actual evidence

       presented at trial does not support separate offenses. We disagree.


[16]   Separate and distinct facts support Smith’s convictions for attempted

       aggravated battery and criminal recklessness, namely the two separate incidents

       of shooting. In its closing arguments, the State cited only the aggression Smith

       showed toward Betz as evidence of attempted aggravated battery,2 specifically

       highlighting the parking lot shooting (not the Lafayette Street shooting). By

       contrast, when discussing the criminal recklessness charges, the State pointed

       additionally to the Lafayette Street shooting and the recklessness Smith

       exhibited toward bystanders by firing at the McDonald’s building itself and

       shattering a window. For that reason, we cannot conclude, in our assessment

       of the evidence, that the jury “latched on to exactly the same facts for both




       2
        In his brief, Smith makes much of the State’s charging information for attempted aggravated battery,
       specifically the absence of allegations that Smith tried to strike Betz with his truck. Because we find that
       other separate and distinct evidence supports the attempted aggravated battery conviction, we need not
       address this argument.

       Court of Appeals of Indiana | Opinion 18A-CR-2597 | July 17, 2019                                     Page 6 of 7
       convictions.” See Garrett, 992 N.E.2d at 719–20. Thus, there was not a

       reasonable possibility that the jury used the same evidentiary facts when finding

       Smith guilty of both offenses. Accordingly, we affirm the convictions.


[17]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2597 | July 17, 2019        Page 7 of 7
