MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   Oct 16 2015, 8:32 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan D. Rayl                                            Gregory F. Zoeller
Smith Rayl Law Office, LLC                               Attorney General of Indiana
Indianapolis, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Gregory,                                           October 16, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1503-CR-131
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff.                                      Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1405-FD-27077



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015          Page 1 of 8
[1]   David Gregory appeals his convictions for criminal mischief as a class B

      misdemeanor and unauthorized entry of a motor vehicle as a class B

      misdemeanor. Gregory raises one issue which we revise and restate as whether

      his convictions violate double jeopardy principles. We affirm.


                                      Facts and Procedural History

[2]   In October 2013, Amber (Gregory) Baker and Gregory separated, and Baker

      obtained a protective order against Gregory. On May 14, 2014, Baker and

      Gregory finalized their divorce. As part of the property settlement, Baker took

      possession of a 2009 Mini Cooper S and Gregory took possession of a 2011

      Chevrolet Silverado.


[3]   On the morning of May 15, 2014, Baker drove her Mini Cooper to the

      Cummins Behavioral Health parking lot where she worked and parked her

      vehicle. She had a meeting with her supervisor scheduled for around 9:00 a.m.

      Before she entered the building she made sure that her personal belongings

      which, among other items, included a purse containing her birth certificate,

      social security card, driver’s license, and mail to prove her residency so that she

      could change her name, were secured in the back of her vehicle.


[4]   On the same day, Shayna Aguilar, a nurse at Cummins Behavioral Health,

      arrived at the parking lot for work between 8:45 and 8:50 a.m., during which

      time she applied her makeup and listened to the radio before beginning her

      work day. While sitting in her vehicle, Aguilar noticed a black SUV pull into

      the parking lot near Baker’s Mini Cooper and saw a male exit the vehicle.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015   Page 2 of 8
      Aguilar observed the individual, who she later identified as Gregory, “raise[] up

      a blanket, it was blue, and um, broke the [back] window” with his arm.

      Transcript at 29. She also noticed that he reached inside the vehicle with the

      blanket but did not remember seeing him take anything out of the car. The

      items in Baker’s purse were later found to be missing from the back of her

      vehicle after Gregory broke the window and reached inside the vehicle. After

      observing the event, Aguilar, who had never met or seen Gregory, entered the

      building where she reported what she had seen to one of the doctors she worked

      with, and eventually the police were called to the scene. Aguilar gave police a

      description of the man she saw, which matched that of Gregory, and she

      eventually identified Gregory in a photo array.


[5]   On May 23, 2014, and, as amended on July 21, 2014, the State charged

      Gregory with Count I, theft as a class D felony; Count II, escape as a class D

      felony; Count III, invasion of privacy as a class A misdemeanor; Count IV,

      criminal mischief as a Class B misdemeanor; Count V, unauthorized entry of a

      motor vehicle as a Class B misdemeanor; and Count VI, invasion of privacy as

      a class D felony.1


[6]   On January 14, 2015, the court held a bench trial at which the State presented

      testimony and evidence consistent with the foregoing. The court found that the




      1
        Count VI was originally charged as part II of Count III and enhanced Gregory’s invasion of privacy charge
      to a class D felony for previously violating a protective order under a different cause number.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015           Page 3 of 8
      State met its burden as to Counts I, III, IV, V, and VI. The State had previously

      dismissed Count II.


[7]   On February 4, 2015, the court sentenced Gregory on Counts I and VI

      concurrently to 910 days in the DOC with 180 days suspended to probation,

      and to a concurrent 58 days in the Marion County Jail for Counts IV and V.2


                                                  Discussion

[8]   The issue is whether Gregory’s convictions for criminal mischief and

      unauthorized entry of a motor vehicle as class B misdemeanors violate double

      jeopardy principles. The Indiana Constitution provides that “[n]o person shall

      be put in jeopardy twice for the same offense.” IND. CONST. art. 1, §

      14. “Indiana’s Double Jeopardy Clause . . . prevent[s] the State from being able

      to proceed against a person twice for the same criminal transgression.” Hopkins

      v. State, 759 N.E.2d 633, 639 (Ind. 2001) (quoting Richardson v. State, 717

      N.E.2d 32, 49 (Ind. 1999)). The Indiana Supreme Court has held that “two or

      more offenses are the ‘same offense’ in violation of Article I, Section 14 of the

      Indiana Constitution, 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, 717 N.E.2d at 49.




      2
          Count III was merged into Count VI.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015   Page 4 of 8
[9]    Gregory argues that he was convicted of criminal mischief and unauthorized

       entry of a motor vehicle for the sole act of breaking the window to gain entry

       into the vehicle. He asserts that the convictions violate the actual evidence test

       because the unauthorized entry was gained through the broken rear window

       and that without the criminal mischief there would be no unauthorized entry.

       The State’s position is that there is no double jeopardy violation because the

       actual evidence used to find him guilty of both offenses is different, and it

       maintains that Gregory’s conviction for criminal mischief stems from his act of

       breaking the rear window, while his conviction for unauthorized entry of a

       motor vehicle stems from his act of using the opening to reach inside the

       vehicle. The State asserts that both offenses “required elements and facts that

       were unique and did not overlap with the other offense.” Appellee’s Brief at 6.


[10]   In applying the actual evidence test, a defendant must demonstrate and a

       reviewing court must conclude that there is a reasonable possibility that the

       evidentiary facts used by the factfinder to establish the essential elements of an

       offense for which the defendant was convicted or acquitted may also have been

       used to establish all the essential elements of a second challenged offense. Hines

       v. State, 30 N.E.3d 1216, 1222 (Ind. 2015).


[11]   At the time of the offenses, Ind. Code § 35-43-1-2(a)(1)3 governed criminal

       mischief as a class B misdemeanor and provided in part that a person who



       3
        Subsequently amended by Pub. L. No. 158-2013, § 453 (eff. July 1, 2014); Pub. L. No. 21-2014, § 2 (eff.
       July 1, 2014).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015           Page 5 of 8
“recklessly, knowingly, or intentionally damages or defaces property of another

person without the other person’s consent . . . commits criminal mischief as a

class B misdemeanor.” At the time of the offenses, Ind. Code § 35-43-4-2.7(d)4

governed the unauthorized entry of a motor vehicle and provided in part:


           (d) A person who:


                    (1) enters a motor vehicle knowing that the person does
                    not have the permission of an owner, a lessee, or an
                    authorized operator of the motor vehicle to enter the
                    motor vehicle; and


                    (2) does not have a contractual interest in the motor
                    vehicle;


           commits unauthorized entry of a motor vehicle, a Class B
           misdemeanor.


The allegation in the amended charging information for criminal mischief

under Count IV states that Gregory “did without the consent of Amber

Gregory, recklessly or knowingly damage that person’s property, to wit: her car

by breaking a window and/or windshield.” Appellant’s Appendix at 43. The

amended charging information for unauthorized entry of a motor vehicle under

Count V states that Gregory, “not having a contractual interest in the motor

vehicle, that is: a white and black Mini Cooper of another person, that is:




4
    Subsequently amended by Pub. L. No. 158-2013, § 466, (eff. July 1, 2014).


Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015   Page 6 of 8
       Amber Gregory, did enter said vehicle knowing that he does not have the

       permission of the owner, lessee or authorized operator of said motor vehicle.”

       Id. at 44.


[12]   The evidence presented at trial shows that Gregory committed the act of

       breaking the window of the Mini Cooper and committed the act of entering the

       vehicle. These were separate acts that were not supported by the same

       evidentiary facts. Regarding his conviction for criminal mischief, Aguilar

       testified that she observed Gregory break the window of Baker’s Mini Cooper

       with his arm. The criminal mischief occurred when Gregory broke the window

       of Baker’s Mini Cooper, causing damage to the vehicle. As to his conviction

       for unauthorized entry of a motor vehicle, the evidence established that, as a

       result of the property settlement, Gregory no longer had a contractual interest in

       the Mini Cooper or permission to enter it. Aguilar testified that Gregory

       reached inside the vehicle, and Baker testified that items in her purse were

       missing from the rear of the vehicle. Gregory, who lacked permission to enter

       the Mini Cooper and a contractual interest in it, committed unauthorized entry

       when he reached inside Baker’s Mini Cooper. We conclude that there is no

       reasonable possibility that the evidentiary facts used to establish the essential

       elements of criminal mischief for which Gregory was convicted were used to

       establish all the essential elements of unauthorized entry of a motor vehicle and

       find no double jeopardy violation. See Vestal v. State, 773 N.E.2d 805, 806-807

       (Ind. 2002) (concluding that, under the actual evidence test, convictions for

       burglary and theft did not establish a reasonable possibility that the same


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015   Page 7 of 8
       evidentiary facts were used to convict the defendant of both offenses and did

       not violate double jeopardy principles), reh’g denied.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm Gregory’s convictions for criminal

       mischief as a class B misdemeanor and unauthorized entry of a motor vehicle as

       a class B misdemeanor.


[14]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-131 | October 16, 2015   Page 8 of 8
