MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                       Mar 20 2018, 9:56 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Thomas Lowe                                           Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry Dewayne Decker,                                    March 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         10A01-1707-CR-1612
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley B. Jacobs,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         10C02-1607-F3-38



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018          Page 1 of 12
[1]   Following a jury trial, Jerry Dewayne Decker was convicted of Level 3 felony

      attempted aggravated battery, Level 6 felony auto theft, Level 6 felony resisting

      law enforcement, and Class A misdemeanor resisting law enforcement. Decker

      presents two issues for our review, which we restate as the following:


               1. Did the State present sufficient evidence to support Decker’s
               conviction for attempted aggravated battery?


               2. Did the State present sufficient evidence to support Decker’s
               conviction for auto theft?


               3. Do Decker’s convictions for attempted aggravated battery as a
               Level 6 felony, resisting law enforcement as a Level 6 felony, and
               resisting law enforcement as a Class A misdemeanor violate
               double jeopardy principles?


[2]       We affirm in part, reverse in part, and remand.


                                       Facts & Procedural History1


[3]   The facts most favorable to the convictions follow. On the morning of July 10,

      2016, Christopher Barrow reported to the Clarksville Police Department that

      his vehicle was no longer parked outside his residence and that he had given no

      one permission to take it. On July 15, 2016, Officer August Vissing confirmed

      that Decker, who had an outstanding arrest warrant, was a registered guest at a




      1
       We held oral argument on February 27, 2018, in the courtroom located in Federal Hall on the campus of
      Indiana State University. We commend counsel for the parties for the excellent written and oral
      presentations. We also thank the staff and students for their enthusiasm and hospitality.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018        Page 2 of 12
      local motel. Officer Vissing then conducted a license plate check of the vehicle

      backed into the parking space in front of Decker’s room and discovered that it

      was registered to Barrow and had been reported stolen. Officer Vissing

      requested back-up, and then he and responding officers set up surveillance of

      Decker’s room. Decker eventually left the motel room with his girlfriend and,

      after placing items in the trunk, Decker got into the driver’s seat of the stolen

      vehicle. At that point, Officer Vissing and Detective Donovan Harrod

      positioned their vehicles so as to block Decker’s exit.


[4]   The officers then exited their vehicles, drew their weapons, identified

      themselves as police, and ordered Decker to put his hands up. Decker initially

      complied but then, after screaming three or four obscenities, said “fuck it,”

      dropped his hands, started the vehicle, and accelerated toward Officer Vissing.

      Transcript at 123. Officer Vissing took several steps backward and pressed

      himself against his truck to avoid being hit as Decker drove through the six-foot

      gap between the police vehicles. Decker did not strike Officer Vissing or either

      of the police vehicles. Decker then led assisting officers on a high-speed chase.

      Eventually, Decker abandoned the vehicle and fled on foot before being

      captured.


[5]   On July 19, 2016, Decker was charged with Level 3 felony attempted

      aggravated battery, Level 6 felony auto theft, Level 6 felony resisting law

      enforcement, Class A misdemeanor resisting law enforcement, Level 5 felony

      possession of methamphetamine, and two counts of Level 6 felony maintaining



      Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018   Page 3 of 12
      a common nuisance.2 The State also filed a habitual offender allegation. A

      three-day jury trial commenced on February 28, 2017, at the conclusion of

      which the jury found Decker guilty of attempted aggravated battery, auto theft,

      and both counts of resisting law enforcement. The jury did not reach a verdict

      on the charge of possession of methamphetamine and acquitted Decker of

      maintaining a common nuisance. Following a bench trial, the trial court

      determined that Decker was not a habitual offender. At a June 14, 2017

      sentencing hearing, the trial court sentenced Decker to an aggregate term of

      twelve years, with three years suspended to probation.3 Decker now appeals.

      Additional facts will be provided where necessary.


                                              Discussion & Decision


                                           Sufficiency of the Evidence


[6]   Decker challenges the sufficiency of the evidence with respect to his convictions

      for attempted aggravated battery and auto theft. When we consider a challenge

      to the sufficiency of the evidence, we neither reweigh the evidence nor assess

      the credibility of the witnesses. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016).

      Instead, we consider only the evidence and reasonable inferences supporting the

      verdict. Id. We will affirm the conviction if there is probative evidence from




      2
          Prior to trial, the two maintaining a common nuisance charges were merged into a single charge.
      3
          The trial court imposed a sentence for each conviction and ordered the sentences served concurrently.


      Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018              Page 4 of 12
      which a reasonable jury could have found the defendant guilty beyond a

      reasonable doubt. Id.


                                  1. Attempted Aggravated Battery


[7]   “A person who knowingly or intentionally inflicts injury on a person that

      creates a substantial risk of death” commits aggravated battery, a Level 3

      felony. Ind. Code § 35-42-2-1.5. “A person attempts to commit a crime when,

      acting with the culpability required for commission of the crime, the person

      engages in conduct that constitutes a substantial step toward commission of the

      crime.” Ind. Code § 35-41-5-1(a).


[8]   The State charged Decker as follows:


              On or about July 15, 2016 in Clark County, State of Indiana,
              [Decker] did with the intent to commit Aggravated Battery, to-
              wit: knowingly or intentionally inflicting injury on a person that
              creates a substantial risk of death, did engage in conduct that
              constituted a substantial step towards committing Aggravated
              Batter, to-wit: by accelerating and/or driving a passenger vehicle
              toward [Officer Vissing].


      Appellant’s Appendix Vol. II at 14. Decker argues that the State did not present

      sufficient evidence that he knowingly or intentionally engaged in a substantial

      step to inflict injury on Officer Vissing. Decker points out that in a matter of

      seconds he drove the vehicle through a six-foot gap between the officers’

      vehicles and that he did not strike the officer or either vehicle. Decker

      maintains that the fact that he did not strike Officer Vissing or either of the


      Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018   Page 5 of 12
       police vehicles that were positioned to block his exit shows that he did not

       intend to harm Officer Vissing.


[9]    Decker’s argument boils down to a request for this court to reweigh the

       evidence, a task in which we will not engage on appeal. At trial, Officer Vissing

       testified that Decker put his hands on the steering wheel, turned the wheels

       toward him, and accelerated. Another officer testified that Officer Vissing “had

       to jump out of the way because of the close proximity [he was] with the . . .

       stolen vehicle.” Transcript at 24. From this evidence, the jury could have

       reasonably inferred that Decker drove the car toward Officer Vissing with the

       intent to hit Officer Vissing.4 The evidence is sufficient to sustain Decker’s

       conviction for attempted aggravated battery as a Level 3 felony.


                                                      2. Auto Theft


[10]   “A person who knowingly or intentionally exerts unauthorized control over the

       motor vehicle of another person, with intent to deprive the owner of . . . the

       vehicle’s value or use . . . commits auto theft, a Level 6 felony.” Ind. Code §

       35-43-4-2.5. Generally, “[t]he unexplained possession of stolen property may

       be sufficient to support a conviction for theft, but the inference is permitted only

       where the property was ‘recently stolen.’” Thacker v. State, 62 N.E.3d 1250,

       1251-52 (Ind. Ct. App. 2016) (citation omitted) (quoting Gibson v. State, 533

       N.E.2d 187, 188-89 (Ind. Ct. App. 1989)). If a defendant is found to be in



       4
           During oral argument, Decker conceded that striking someone with a car creates a substantial risk of death.


       Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018              Page 6 of 12
       possession of stolen property that was not recently stolen and if exclusive

       possession is not proven, “this court may also consider additional evidence

       tending to support the defendant’s conviction.” Id. at 1252 (quoting Shelby v.

       State, 875 N.E.2d 381, 385 (Ind. Ct. App. 2007), trans. denied).


[11]   In Gibson, we determined that the unexplained possession of a car two days

       after it was stolen was insufficient by itself to sustain a conviction for auto theft,

       but nevertheless affirmed the conviction due to the defendant’s possession of a

       screwdriver used to start the car. 533 N.E.2d at 189. In Thacker, we held that

       the defendant’s possession of a vehicle six days after it was stolen was not

       enough by itself to prove auto theft, but that additional evidence of damage to

       the car, a busted-out passenger window, a ripped-off gas cap, and the

       defendant’s attempt to flee when confronted was sufficient evidence from which

       the factfinder could have inferred that the defendant knew he was exerting

       unauthorized control over someone else’s vehicle. 62 N.E.3d at 1252. Cf.

       Girdler v. State, 932 N.E.2d 769, 771 (Ind. Ct. App. 2010) (noting that “[i]t is a

       well-settled principle of Indiana law . . . that one may be charged with theft

       even if the evidence is stronger that the person was not the actual thief and

       actually received stolen property instead, and vice versa”).


[12]   In challenging the sufficiency of the evidence, Decker asserts that the only

       evidence supporting his conviction for auto theft was that the vehicle was stolen

       and that he was in possession of it five days later. The State counters, pointing

       to additional evidence in the record indicating that, at the very least, Decker

       knew the car he was driving had been stolen. We agree with the State. Decker

       Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018   Page 7 of 12
       not only possessed the vehicle five days after it was stolen, he backed the car

       into its parking space, giving rise to an inference that he was attempting to

       hinder identification of the vehicle. Further, he fled in the vehicle when

       confronted by police and drove the vehicle in a manner suggesting a lack of

       regard therefore. As in Thacker, we find that this additional evidence was

       sufficient evidence from which the jury could have reasonably inferred that

       Decker knew he was exerting unauthorized control over someone else’s vehicle.

       The evidence is sufficient to support Decker’s conviction for auto theft as a

       Level 6 felony.


                                               Double Jeopardy


[13]   The double jeopardy clause in the Indiana Constitution is embodied in Article

       1, Section 14, and provides, “No person shall be put in jeopardy twice for the

       same offense.” Our Supreme Court has concluded that this provision was

       intended to prohibit, among other things, multiple punishments for the same

       criminal transgression. Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Two or

       more offenses are the “same offense” if there is a reasonable possibility that the

       evidentiary facts used to establish the essential elements of one offense also

       establish all of the essential elements of the second challenged offense. See

       Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002).


[14]   Decker challenges his separate convictions for attempted aggravated battery and

       two counts of resisting law enforcement as violating Indiana’s actual evidence

       test, claiming that all three convictions are based on the manner in which he


       Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018   Page 8 of 12
       operated the stolen vehicle. Decker argues that “[a]t no point in the Court’s

       instructions or verdict forms is there any mention what specific acts were

       alleged to satisfy the elements of these three separate offenses.” Appellant’s Brief

       at 16. He asserts that “the use of the vehicle is the common evidence” and that

       “it would be difficult, if not impossible, to untangle the events surrounding

       Decker ‘shooting the gap’ between the police vehicles from any other evidence

       presented at trial that may have supported the convictions for these three

       offenses.” Id. at 17, 16. Decker therefore argues that there is a reasonable

       possibility that the jury relied upon this same evidence in finding him guilty of

       attempted aggravated battery and resisting law enforcement as a Class A

       misdemeanor and as a Level 6 felony.


[15]   In response, the State asserts that the factual allegations for attempted

       aggravated battery were that Decker accelerated and drove the stolen vehicle

       toward Officer Vissing and that the factual allegations for Level 6 felony

       resisting law enforcement were based on the high-speed pursuit. The State thus

       argues that the attempted aggravated battery and Level 6 felony resisting law

       enforcement convictions rest on distinct acts and that there is no reasonable

       probability that that the jury based both convictions on the same evidence. 5




       5
         The State conceded that Decker’s convictions for resisting law enforcement as a Level 6 felony and as a
       Class A misdemeanor violated double jeopardy principles in that, “[b]ased on the charges, evidence at trial,
       and the argument of counsel, it appears that the misdemeanor resisting law enforcement is either based on
       the same act as the attempted aggravated battery or the same act as the felony resisting law enforcement.”
       Appellee’s Brief at 18.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018             Page 9 of 12
[16]   With regard to attempted aggravated battery, the jury’s final instructions

       mirrored the charging information, informing the jury that the alleged

       substantial step supporting the charge of attempted aggravated battery was

       Decker’s act of accelerating and/or driving the car at Officer Vissing. As is

       detailed below, there is a reasonable possibility that the jury relied upon this

       same evidence in finding Decker guilty of both the Level 6 felony and Class A

       misdemeanor resisting offenses.


[17]   We begin by noting that the charging information for the Class A misdemeanor

       identified Officer Vissing as the victim. The charging information for the Level

       6 felony resisting offense alleged that Decker “did knowingly or intentionally

       forcibly resist, obstruct or interfere” with Officer Vissing and/or Detective

       Harrod and that “in committing said act [Decker] operated a vehicle in such a

       manner that it created a substantial risk of bodily injury” to Officer Vissing

       and/or Detective Harrod. Appellant’s Appendix Vol. II at 14. While the jury

       instruction setting out the elements of the Class A misdemeanor offense did not

       identify the alleged victim, such was read in conjunction with the instruction for

       the Level 6 felony resisting offense, which mirrored the charging information

       insofar as it specifically identified Officer Vissing and Detective Harrod as the

       alleged victims thereof.6




       6
        The instruction informed the jury that to convict Decker of the Level 6 felony resisting offense, the State
       was required to prove that while committing the offense against Officer Vissing and/or Detective Harrod,
       Decker “operated a vehicle in a manner that created a substantial risk of bodily injury to another person.”
       Transcript at 202.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018             Page 10 of 12
[18]   At trial, the evidence established that Officer Vissing and Detective Harrod

       were directly involved only when Decker drove the stolen car at Officer Vissing

       and as Decker “shot the gap” between their vehicles.7 Transcript at 186. We

       further note that the State, in its closing statement, identified Officer Vissing

       and Detective Harrod as the alleged victims of the Class A misdemeanor

       offense, but did not specifically identify in what manner Decker resisted Officer

       Vissing and/or Detective Harrod. The State continued, noting that a Class A

       misdemeanor resisting offense was elevated to a Level 6 Felony if the defendant

       operated a vehicle in a manner that created a substantial risk of bodily injury.

       The State then expressly urged the jury to find that Decker’s act of driving the

       vehicle at Officer Vissing established his resistance and also created a

       substantial risk of death, which in turn, encompassed the serious bodily injury

       enhancement for the Level 6 felony resisting charge. As noted above, this act of

       driving the car at Officer Vissing and through the six-foot gap between the

       officers’ vehicles is the same evidence that established all of the elements of the

       attempted aggravated battery charge.


[19]   While the State continued with its closing statement, referencing the high-speed

       chase that ensued, it remains that that the State identified Officer Vissing and

       Detective Harrod as the victims of both the Class A misdemeanor and Level 6




       7
        While the specific act alleged to have created the substantial risk of bodily injury to Officer Vissing and/or
       Detective Harrod was the “vehicle pursuit at an unreasonable and/or high rate of speed,” the evidence
       presented at trial was clear that Officer Vissing was not involved with the high-speed pursuit and Detective
       Harrod gave chase for only a short time before discontinuing his pursuit. Appellant’s Appendix Vol. II at 14-15.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018             Page 11 of 12
       felony resisting offenses, neither of whom were involved in that pursuit.8

       Further, the State explicitly invited the jury to find that Decker’s act of driving

       the vehicle at Officer Vissing established his resistance as well as the enhancing

       element for the Level 6 resisting offense. Id. at 186.


[20]   As the State suggests, the evidence at trial likely could have supported separate

       convictions for attempted aggravated battery, resisting law enforcement as a

       Class A misdemeanor, and resisting law enforcement as a Level 6 felony if

       presented to the jury in a different manner. On the record before us, however,

       we conclude that the charging information, the manner in which the jury was

       instructed, and the State’s closing statement give rise to at least a reasonable

       possibility that the jury relied upon the same evidence, i.e., Decker’s act of

       driving the stolen vehicle at Officer Vissing, in finding Decker guilty of all three

       offenses. Thus, Decker’s convictions for attempted aggravated battery and

       resisting law enforcement as both a Level 6 felony and a Class A misdemeanor

       violate double jeopardy principles. We therefore remand to the trial court with

       instructions to vacate both resisting law enforcement convictions.


       Judgment affirmed in part, reversed in part, and remanded with instructions.


       Baker, J. and Robb, J., concur.




       8
           See Footnote 7, infra.


       Court of Appeals of Indiana | Memorandum Decision 10A01-1707-CR-1612 | March 20, 2018   Page 12 of 12
