Pursuant to Ind. Appellate Rule 65(D),                                  Aug 12 2013, 6:57 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 Offices                              Attorney General of Indiana
Indianapolis, Indiana
                                                    AARON J. SPOLARICH
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BILLY SAVOY,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1301-CR-14
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Reuben Hill, Judge
                            Cause No. 49F18-1112-FD-90488


                                         August 12, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                  STATEMENT OF THE CASE

          Billy Savoy (“Savoy”) appeals his conviction, after a bench trial, for theft, a Class

D felony.1

          We reverse.

                                                 ISSUE

          Whether Savoy’s convictions for theft and criminal mischief violate Indiana’s
          Double Jeopardy clause.2


                                                FACTS

          On December 30, 2011 at approximately 1:39 a.m., Officer James Barrow

(“Officer Barrow”) with the Indianapolis Metropolitan Police Department was dispatched

to 4440 South High School Road on a report of a theft in progress. When Officer Barrow

arrived at the scene, he shut off his lights and sirens and approached on foot so he would

not alert any suspects to his presence. While approaching on foot, Officer Barrow

noticed a dark-colored vehicle in the parking lot across the street from 4440 South High

School Road. Officer Barrow testified at trial that he patrols the area regularly and

noticed the dark-colored vehicle because the business parking lots are usually empty at

that time of night. Officer John Montgomery (“Officer Montgomery”) also responded to

the scene. As they approached, the officers could hear people talking and metal clanging.

The officers walked around a fence and saw Savoy and Richard Jones (“Jones”) with


1
    Ind. Code § 35-43-4-2.
2
 Savoy does not challenge his criminal mischief conviction on appeal. We discuss the criminal mischief
charge only in the context of whether convicting Savoy of it and theft violates double jeopardy principles.

                                                    2
tools in their hands.    Savoy and Jones were standing next to a disassembled air

conditioner and a pile of copper pipes. The officers ordered Savoy and Jones to the

ground and they complied. Once Savoy and Jones were in custody, the officers contacted

dispatch to request a detective. Detective Mark Howard (“Detective Howard”) went to

the scene and interviewed Savoy. After being read his Miranda rights, Savoy stated that

he was down on his luck and needed money. Savoy also told Detective Howard that he

had never done anything like this before and that he thought the building was empty. The

car Officer Barrow noticed on his initial approach was driven to the scene by Savoy.

Inside, officers found additional copper pipes on the backseat floorboard.

       On January 3, 2012, the State charged Savoy with theft and criminal mischief,

both as Class D felonies.3 Savoy waived his right to a trial by jury, and the trial court

conducted a bench trial on November 19, 2012. The trial court found Savoy guilty on

both counts, and on December 10, 2012, sentenced Savoy to two (2) years in the

Department of Correction, with one (1) year suspended to probation.

                                        DECISION

       Savoy argues that the trial court violated Indiana’s Double Jeopardy Clause by

convicting him of theft and criminal mischief. Specifically, he alleges that the State used

the same evidence to obtain the convictions. The State responds that conviction for both

offenses is proper because separate evidence supports the convictions and “[Savoy]

caused harm separate from and greater than the harm necessary to commit criminal

mischief.” (Appellee’s Br. 8).
3
 Jones was charged with the same crimes as Savoy. Jones pled guilty and was sentenced to the
Department of Correction.
                                             3
       Our Supreme Court established the following test for deciding double jeopardy

claims:

       [T]wo 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 v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). “[U]nder the

Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated

when the evidentiary facts establishing the essential elements of one offense also

establish only one or several, but not all, of the essential elements of a second offense.”

Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002). For a successful double jeopardy

claim under the Richardson actual evidence test, “a defendant must demonstrate 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. at 53. On appeal, in determining the facts

used by the fact-finder, it is appropriate for a reviewing court to examine the evidence

presented, the charging information, arguments of counsel, and any other factors that may

have guided the fact-finder in making a decision. See Goldsberry v. State, 821 N.E.2d

447, 459 (Ind. Ct. App. 2005). We review de novo whether a defendant’s convictions

violate our double jeopardy provision. Id. at 458.

       In claiming a violation of the Richardson actual evidence test, Savoy essentially

claims that the manner in which the State charged and argued the case created a

reasonable possibility that the trial court used the same evidence to establish the essential

                                             4
elements of both offenses. We addressed a similar argument in Alexander v. State, 768

N.E.2d 971 (Ind. Ct. App. 2002), trans. denied. In that case, the trial court convicted

Alexander of unlawful possession of a firearm by a serious violent felon and carrying a

handgun without a license. Alexander was a passenger in a car, sitting next to two

handguns. In analyzing the trial court’s rationale for conviction, we found that there was

a reasonable possibility that the judge found Alexander guilty of both firearm offenses for

possessing one of the firearms. Id. at 978. In addition, the charging information for the

firearms charges tracked with the statutory language and referred to a “handgun,” rather

than charging a different handgun for each offense. To that end, we noted that “the

general nature of the charging information, and the broad, non-specific way the case was

prosecuted and argued militates in favor of finding that there is a reasonable possibility

that the same evidence was used to establish an essential element of one offense and all

of the essential elements of the other offense.” Id.

       Here, as in Alexander, the State charged and prosecuted Savoy in a very general

way. With regard to the charge of criminal mischief, the State charged that “Billy Savoy,

did without the consent of Larry Berns, recklessly or knowingly damage that person’s

property, to wit: air conditioning unit by cutting the unit apart for scrap metal.” (App.

18). With regard to the theft charge, the State alleged that “Billy Savoy did knowingly

exert unauthorized control over the property, to wit: air conditioner unit parts, of another

person, to wit: Larry Berns, with the intent to deprive the person of any part of its value

or use.” (App. 17). The State made the following closing argument:



                                             5
        Thank you Your Honor. Your Honor the Defendant is charged with two
        crimes here, Theft as a Class D felony and Criminal Mischief as a Class D
        felony. Your Honor, the testimony you have heard today from the officers,
        both officers say they rounded the corner, saw the Defendant, saw tools,
        saw a piece of metal part that we have photographs of . . . taken a part of
        this air conditioner Your Honor. Additionally Officer Howard testified that
        part . . . that metal parts were all taken out of the car that the Defendant,
        even his own admission admits that he was driving that night and was in
        possession of. Mr. Berns testified that no one had permission to take these
        items or take apart this air conditioner. He is the only owner of it . . . he
        and his wife and that the loss of it was $42,000, well above the $2500.00
        necessary for this Judge. Your Honor the State believes that the Defendant
        is guilty of theft when you add all those pieces of evidence in.

(Tr. 49).

        We can infer that the “metal parts” the State is referring to in its argument are the

copper pipes. As charged and argued, in order for Savoy to exert unauthorized control

over the copper pipes in committing theft, he had to cut them out of the air conditioner,

essentially committing the criminal mischief at the same time. 4 On appeal, the State

contends that the pipes found in the car is the separate evidence distinguishing the theft

from the criminal mischief. This argument asks that we assume that Savoy and Jackson

took some copper pipes to the car and returned to the air conditioner for more. We would

be required to accept this inference under a review for sufficiency of evidence to sustain

Savoy’s conviction. However, under a de novo review for double jeopardy, we are not

required to do so. Moreover, the State presented no evidence, i.e. photographs of the

pipes in the car or statements from Savoy or Jones, proving the pipes in Savoy’s car came

from the air conditioner. Additionally, the trial court simply entered a finding of guilty


4
  Had the State been more specific in charging and arguing a separate act of criminal mischief, i.e.
damaging the outer cover of the air conditioner that encloses the pipes, convicting Savoy for subsequently
taking the pipes inside of the air conditioner would be permissible under our double jeopardy laws.
                                                    6
on both counts without stating its reasons, leaving us to speculate whether the trial court

made this inference. Finally, we previously rejected the State’s argument that causing

more harm than necessary to complete an offense separates it from another charged

offense for double jeopardy purposes. See Troutner v. State, 951 N.E.2d 603, 611 (Ind.

Ct. App. 2011), trans. denied. Based on our ruling in Alexander, the failure of the State

to clearly delineate separate facts that establish both offenses, and the trial court’s lack of

specificity in its finding of guilty, Savoy has shown that there is a reasonable possibility

that the trial court used the same evidentiary facts to establish the essential elements of

theft and criminal mischief.

        When two or more convictions violate double jeopardy principles, the remedy, if

possible, is to reduce either conviction to a less serious form of the same offense if doing

so will remove the violation.            Richardson 717 N.E.2d at 54.              If this cannot be

accomplished, one of the convictions must be vacated. Id. Here, because there is a

reasonable possibility that the same evidence establishes the essential elements of

criminal mischief, theft, and any possible lesser included offenses, the appropriate

remedy is to vacate one of the convictions. Accordingly, we reverse and remand to the

trial court with instructions to vacate Savoy’s conviction for theft, leaving, as is, his

conviction and sentence for criminal mischief.5

        Reversed and remanded.

KIRSCH, J., and VAIDIK, J., concur.



5
 Savoy also alleged that the State did not present sufficient evidence to convict him of theft. Because we
have vacated the conviction, we need not address this argument.
                                                    7
