MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Mar 07 2018, 8:15 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sylvester Demus,                                         March 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1709-CR-2002
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1610-F5-39427



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018      Page 1 of 4
[1]   Sylvester Demus appeals his convictions for Level 5 Felony Domestic Battery 1

      and Level 5 Felony Battery,2 arguing that the convictions violate the prohibition

      against double jeopardy. The State concedes the issue, and we agree. We

      reverse in part and remand with instructions to vacate Demus’s Level 5 Felony

      Battery conviction and resentence accordingly.


[2]   On September 30, 2016, Demus hit his wife with an object, pushed her onto

      their bed, pinned her down, and threatened to kill her. The State filed eight

      criminal charges against Demus, including intimidation, domestic battery, and

      battery. The battery and domestic battery convictions were both enhanced to

      Level 5 felonies based on the same prior conviction. Furthermore, the State

      concedes that it “did not distinguish the facts that supported the domestic

      battery from the facts that supported the battery in its closing arguments.”

      Appellee’s Br. p. 5. After a jury trial, the jury hung on several counts but found

      Demus guilty of Level 6 felony domestic battery, Level 6 felony battery, and

      Level 6 felony intimidation; Demus then pleaded guilty to the enhancements of

      the domestic battery and battery counts, raising them both to Level 5 felonies.

      On August 3, 2017, the trial court sentenced Demus to concurrent sentences of

      545 days for each of the three convictions. Demus now appeals.




      1
          Ind. Code § 35-42-2-1.3.
      2
          I.C. § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018   Page 2 of 4
[3]   Two convictions violate the double jeopardy clause of the Indiana Constitution

      if 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.” Richardson v.

      State, 717 N.E.2d 32, 53 (Ind. 1999). Here, there is a reasonable possibility that

      the jury used the same facts to find Demus guilty of both domestic battery and

      battery “because the charging information was generic and the State did not

      untangle the evidence. Each conviction was also enhanced by the same prior

      conviction.” Appellee’s Br. p. 6 (internal citation omitted).3 Therefore, these

      convictions violate the prohibition against double jeopardy.


[4]   In some cases, we could ameliorate a double jeopardy violation by reducing one

      of the convictions to a misdemeanor. But the State acknowledges that in this

      case, even if we did so, Demus’s convictions “would still violate the common

      law double jeopardy principles that survived Richardson.” Id. n.1 (citing

      Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)); Guyton v. State, 771

      N.E.2d 1141, 1143 (Ind. 2002). Therefore, one of Demus’s convictions must be

      vacated altogether. Without the enhancements, battery is a Class B

      misdemeanor and domestic battery is a Class A misdemeanor, so if the

      enhancement were to be vacated on post-conviction review, battery would have

      less severe penal consequences. Accordingly, we direct the trial court to vacate



      3
       The State notes that while Demus pleaded guilty to the enhancements, he did not waive his right to raise
      double jeopardy on appeal because he did not bargain for a benefit. Appellee’s Br. p. 6 (citing Crider v. State,
      984 N.E.2d 618, 623-24 (Ind. 2013)).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018                  Page 3 of 4
      Demus’s battery conviction and resentence him accordingly. See Richardson,

      717 N.E.2d at 54-55 (noting that when faced with a double jeopardy violation,

      we generally vacate the conviction with the less severe penal consequences).


[5]   The judgment of the trial court is reversed in part and remanded with

      instructions to vacate the battery conviction and resentence Demus accordingly.


      Kirsch, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018   Page 4 of 4
