MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 13 2020, 9:17 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Brooklyn, Indiana                                         Attorney General of Indiana
                                                          Lauren A. Jacobsen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric Charles Kyle,                                        April 13, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2848
        v.                                                Appeal from the
                                                          Vermillion Circuit Court
State of Indiana,                                         The Honorable Jill Wesch, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          83C01-1907-F3-5



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020                    Page 1 of 4
[1]   Eric Charles Kyle (“Kyle”) pleaded guilty to armed robbery1 as a Level 3 felony

      and theft2 as a Class A misdemeanor. He was sentenced to an aggregate ten

      years for his convictions and ordered to pay restitution to the victim in the

      amount of five hundred dollars. He appeals his convictions and restitution

      order contending that the convictions for robbery and theft violate double

      jeopardy protections and that the order of restitution was not supported by

      sufficient evidence.


[2]   We vacate Kyle’s conviction for theft as a Class A misdemeanor and affirm his

      robbery conviction and the trial court’s restitution order.


                                       Facts and Procedural History
[3]   On July 15, 2019, Kyle entered Casey’s General Store in Clinton, Indiana

      armed with a BB gun which appeared to be a handgun. He demanded cash

      from the store clerk. The clerk removed five hundred dollars from the store safe

      and handed it to Kyle who then left the store. Kyle was arrested and charged

      with armed robbery and theft. He pleaded guilty to both charges. The trial

      court sentenced Kyle to ten years for the robbery and one year for the theft,

      with the sentences to be served concurrently.




      1
          See Ind. Code § 35-42-5-1.
      2
          See Ind. Code § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020   Page 2 of 4
                                     Discussion and Decision
[4]   Kyle first contends that his dual convictions for robbery and theft violate double

      jeopardy protections. We agree.


[5]   As cited in Kyle’s brief, “Article I, Section 14 of the Indiana Constitution

      provides, “No person shall be put in jeopardy twice for the same offense.”

      Here, Kyle was convicted of robbery and theft. The charging instruments

      disclose that both charges were predicated on the taking of $500.00 from

      Casey’s General Store in Clinton, Indiana on July 15, 2019. The State

      acknowledges in its brief that the evidence necessary to prove theft was also the

      evidence needed to prove robbery.


[6]   Two offenses are the same for the purpose of double jeopardy when the same

      act constitutes a violation of the distinct statutory provisions which do not

      require proof of an additional fact. Hall v. State, 493 N.E.2d 433, 435 (Ind.

      1986). Here, Kyle committed a single act—the hold-up of the gas station—and

      pleaded guilty to two offenses. Because the dual convictions violate double

      jeopardy protections, we vacate Kyle’s conviction for theft.


[7]   We also hold that the trial court did not abuse its discretion by ordering Kyle to

      pay restitution. First, Kyle makes no argument that the trial court abused its

      discretion in ordering the restitution. Second, as this Court held in Rich v. State,

      890 N.E.2d 44, 49 (Ind. Ct. App. 2008), a restitution order must be supported

      by sufficient evidence of the actual loss sustained by the victim of the crime. See

      also, Lohmiller v. State, 884 N.E.2d 903, 916 (Ind. Ct. App., 2008).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020   Page 3 of 4
[8]   Here, the monetary value of the loss sustained by Casey’s General Store was

      easily ascertainable--the defendant stole $500.00 in U.S. currency. The

      restitution request form, the probable cause affidavit, and the police report all

      provide reasonable bases for determining the loss that Casey’s sustained, and

      the trial court did not abuse its discretion in ordering Kyle to pay restitution in

      this amount.


[9]   Affirmed in part and Vacated in part.


      Najam, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020   Page 4 of 4
