MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Dec 22 2017, 7:05 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                        Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lamar Smith,                                            December 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1708-CR-1714
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Peggy Hart, Judge
Appellee-Plaintiff                                      Pro Tempore
                                                        Trial Court Cause No.
                                                        49G05-1610-F5-41542



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1714 | December 22, 2017     Page 1 of 5
[1]   Lamar Smith appeals his convictions for Level 5 Felony Battery, 1 Level 6

      Felony Domestic Battery,2 and Level 6 Felony Criminal Confinement.3 Smith

      argues that his convictions violate the prohibition against double jeopardy. 4

      The State concedes that Smith’s convictions for battery and domestic battery

      violate the prohibition against double jeopardy; we agree, and vacate the

      domestic battery conviction. We further find that the battery and criminal

      confinement convictions do not violate double jeopardy principles. Therefore,

      we affirm in part, reverse in part, and remand with instructions to enter an

      amended abstract of judgment and an amended sentencing order.


                                                        Facts
[2]   On October 19, 2016, Indianapolis Metropolitan Police officers were

      dispatched to a disturbance on North Tibbs. Upon arriving at the residence,

      one officer knocked on the front door, while Sergeant David Kinsey

      approached a partially opened window on the side of the house. Through the

      window, Sergeant Kinsey observed a man, later identified as Smith, and two

      women arguing in a bedroom.




      1
          Ind. Code § 35-42-2-1.
      2
          I.C. § 35-42-2-1.3.
      3
          I.C. § 35-42-3-3.
      4
       Smith also argues that there is insufficient evidence supporting his domestic battery conviction, but as we
      vacate that conviction, we will not address this argument.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1714 | December 22, 2017            Page 2 of 5
[3]   Sergeant Kinsey saw one of the women, later identified as Jean Reed, attempt

      to leave the bedroom. Smith shoved Reed backwards into the bedroom. Reed

      again tried to leave, and Smith then “grabbed her in a bear hug and smacked

      her with an open hand in the face,” preventing her from leaving the room. Tr.

      p. 29. Eventually, someone opened the front door to the residence and the

      officers arrested Smith.


[4]   On October 21, 2016, the State charged Smith with Level 5 felony battery,

      Level 6 felony domestic battery, and Level 6 felony criminal confinement. Both

      the battery and domestic battery charges were based on Smith “pushing at and

      against the person of Jean Reed[.]” Appellant’s App. Vol. II p. 24. Smith

      waived his right to a jury trial, and a bench trial took place on January 19, 2017.

      The trial court found Smith guilty as charged and, on July 6, 2017, sentenced

      Smith to concurrent terms of three years for battery, one year for domestic

      battery, and one year for criminal confinement. Smith now appeals.


                                   Discussion and Decision
[5]   Indiana’s double jeopardy clause was intended to prevent the State from being

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

      Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). Our Supreme Court

      has held that two or more offenses are the “same offense,” in violation of our

      Constitution’s double jeopardy clause, “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


      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1714 | December 22, 2017   Page 3 of 5
      of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

      1999) (emphases original). 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. The test focuses not

      on “whether there is a reasonable probability that, in convicting the defendant

      of both charges, the [factfinder] used different facts, but whether it is reasonably

      possible it used the same facts.” Bradley v. State, 867 N.E.2d 1282, 1284 (Ind.

      2007) (emphases original).


[6]   Here, both the Level 5 felony battery and Level 6 felony domestic battery

      convictions were based on the same act—Smith pushing Reed back into the

      bedroom. As such, these dual convictions violate the actual evidence test,

      which the State concedes. We hereby vacate Smith’s domestic battery

      conviction and remand with instructions to enter an amended abstract of

      judgment and an amended sentencing order. See Moala v. State, 969 N.E.2d

      1061, 1065 (Ind. Ct. App. 2012) (holding that when a double jeopardy violation

      occurs, we vacate the conviction with the less severe penal consequences).


[7]   With respect to the battery and criminal confinement convictions, the charging

      information alleges that Smith committed battery when he pushed Reed back

      into the bedroom but does not allege a specific act underlying the criminal

      confinement charge. At trial, however, Sergeant Kinsey testified that first,

      Smith “shoved [Reed] with two hands inside the doorway[.]” Tr. p. 29. At that

      point, based on the way the State charged the offense, the battery was complete.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1714 | December 22, 2017   Page 4 of 5
[8]   The sergeant then explained that after the battery, Reed again attempted to

      leave the room, and Smith “then grabbed her in a bear hug and smacked her

      with an open hand in the face,” preventing her from exiting. Id. This evidence,

      which is separate and distinct from the evidence supporting the battery

      conviction, supports the criminal confinement conviction. Because of the way

      the State drafted the charges, there is no reasonable possibility that the trial

      court relied on the pushing when finding that Smith committed confinement.

      As there are separate and distinct facts supporting each of these convictions,

      they both stand.


[9]   The judgment of the trial court is affirmed in part, reversed in part, and

      remanded with instructions to enter an amended abstract of judgment and an

      amended sentencing statement.


      Riley, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1714 | December 22, 2017   Page 5 of 5
