MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Mar 21 2019, 10:00 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      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
Theodore J. Minch                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jordan Mitchell Smith,                                   March 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1846
        v.                                               Appeal from the Shelby Circuit
                                                         Court
State of Indiana,                                        The Honorable Charles O’Connor,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         73C01-1707-F6-351



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019                Page 1 of 12
                                             Case Summary
[1]   Jordan Mitchell Smith appeals his convictions for auto theft, a Level 6 felony;

      criminal recklessness with a deadly weapon, a Level 6 felony; possession of

      methamphetamine, a Level 6 felony; possession of paraphernalia, a Class C

      misdemeanor; and resisting law enforcement, a Level 6 felony. We affirm.


                                                    Issues
[2]   Smith raises two issues, which we restate as:


              I.      Whether Smith’s convictions for resisting law enforcement,
                      a Level 6 felony, and criminal recklessness, a Level 6
                      felony, violate the prohibition against double jeopardy.

              II.     Whether Smith’s sentence is inappropriate in light of the
                      nature of the offense and Smith’s character.


                                                     Facts
[3]   In July 2017, Christopher Godbold’s 2005 Chevy Trailblazer was stolen from

      his home in Marion County. On July 21, 2017, at 2:00 a.m., Shelby County

      Sheriff’s Deputy Ian Michael attempted to perform a traffic stop on the Chevy

      Trailblazer, which was driven by Smith. Smith and his passenger fled from the

      scene in the vehicle. Smith then led Deputy Michael on a high-speed pursuit.

      Deputy Tyler Thompson and Corporal Michael Cleveland joined the pursuit

      and put stop sticks, which are tire deflation devices, on the road. Smith avoided

      the stop sticks by driving through a corn field. Deputy Thompson and Corporal

      Cleveland heard Smith come out of the corn field and pursued him. Deputy

      Michael deployed stop sticks again, and Smith finally stopped the vehicle.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 2 of 12
      Rather than exit his vehicle, however, Smith put the vehicle in reverse and

      started driving toward Deputy Thompson and Corporal Cleveland and their

      police vehicle. The officers fired their weapons at Smith, and Smith was

      wounded. Smith then stopped the vehicle. Police recovered methamphetamine

      and a glass pipe from the inside of the vehicle.


[4]   The State charged Smith with: Count I, auto theft, a Level 6 felony; Count II,

      criminal recklessness with a deadly weapon, a Level 6 felony; Count III,

      possession of methamphetamine, a Level 6 felony; Count IV, criminal trespass,

      a Level 6 felony; Count V, criminal mischief, a Class A misdemeanor; Count

      VI, reckless driving, a Class C misdemeanor; Count VII, possession of

      paraphernalia, a Class C misdemeanor; and Count VIII, resisting law

      enforcement, a Level 6 felony.


[5]   The State later dismissed Count V, criminal mischief, a Class A misdemeanor.

      Prior to the presentation of evidence at the trial, Smith pleaded guilty to

      criminal trespass, a Class A misdemeanor, as a lesser included offense of Count

      IV. The jury found Smith guilty of Count I, auto theft, a Level 6 felony; Count

      II, criminal recklessness with a deadly weapon, a Level 6 felony; Count III,

      possession of methamphetamine, a Level 6 felony; Count VI, reckless driving, a

      Class C misdemeanor; Count VII, possession of paraphernalia, a Class C

      misdemeanor; and Count VIII, resisting law enforcement, a Level 6 felony.


[6]   The trial court found Smith’s criminal history and the fact that, at the time of

      this offense, he had a pending criminal charge for auto theft as aggravating


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 3 of 12
      factors. The trial court found no mitigating factors. The trial court “merged”

      Count VI, the reckless driving conviction, with Count II, the criminal

      recklessness conviction, and did not impose a sentence for Count VI. Tr. Vol.

      II p. 122. The trial court also “vacated” the conviction for Count IV, criminal

      trespass. Appellant’s App. Vol. II p. 13. The trial court sentenced Smith as

      follows: Count I, auto theft, a Level 6 felony, two years in the Department of

      Correction (“DOC”); Count II, criminal recklessness with a deadly weapon, a

      Level 6 felony, two years in the DOC; Count III, possession of

      methamphetamine, a Level 6 felony, two years in the DOC; Count VII,

      possession of paraphernalia, a Class C misdemeanor, sixty days in the DOC;

      and Count VIII, resisting law enforcement, a Level 6 felony, two years in the

      DOC. The trial court ordered that the sentences for Count I and Count VIII be

      served consecutively to each other and concurrently with the sentences for

      Count II, III, and VII, for an aggregate sentence of four years in the DOC.

      Smith now appeals.


                                                  Analysis
                                            I. Double Jeopardy

[7]   Smith argues that the prohibition against double jeopardy was violated by his

      convictions for both Count II, criminal recklessness, a Level 6 felony, and

      Count VII, resisting law enforcement, a Level 6 felony. “[W]e review a trial

      court’s legal conclusions whether convictions violate double jeopardy de novo.”

      Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). According to Smith, both



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 4 of 12
      crimes were improperly enhanced by his use of a vehicle. Smith argues that we

      should vacate one of the enhancements.


[8]   Article 1, Section 14 of the Indiana Constitution provides: “No person shall be

      put in jeopardy twice for the same offense.” Our Supreme Court has “long

      adhered to a series of rules of statutory construction and common law that are

      often described as double jeopardy, but are not governed by the constitutional

      test set forth in Richardson.” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)

      (citing Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (Sullivan, J.,

      concurring)). One of these rules is that double jeopardy is violated by the

      “[c]onviction and punishment for an enhancement of a crime where the

      enhancement is imposed for the very same behavior or harm as another crime

      for which the defendant has been convicted and punished.” Guyton v. State, 771

      N.E.2d 1141, 1142 (Ind. 2002) (quoting Richardson, 717 N.E.2d at 56 (Sullivan,

      J., concurring)). Specifically, in his concurrence in Richardson, Justice Sullivan

      explained:


              The legislature has provided that the punishment classification of
              certain crimes may be enhanced if the behavior which constitutes
              the crime is accompanied by certain specified additional behavior
              or causes certain specified additional harm. In situations where a
              defendant has been convicted of one crime for engaging in the
              specified additional behavior or causing the specified additional
              harm, that behavior or harm cannot also be used as an
              enhancement of a separate crime; either the enhancement or the
              separate crime is vacated. Recent examples include Kingery v.
              State, 659 N.E.2d 490, 496 (Ind. 1995), and Moore v. State, 652
              N.E.2d 53, 60 (Ind. 1995), both reducing a Class A enhancement
              to a robbery conviction because the very same killing that was the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 5 of 12
              basis of the enhancement was also the basis of a murder
              conviction. Today’s decision in McIntire v. State, 717 N.E.2d 96
              (Ind. 1999), also falls into this category.


              A closely related set of cases provide that to the extent that a
              defendant’s conviction for one crime is enhanced for engaging in
              particular additional behavior or causing particular additional
              harm, that behavior or harm cannot also be used as an
              enhancement of a separate crime. See Campbell v. State, 622
              N.E.2d 495, 500 (Ind. 1993) (reducing a Class C enhancement to
              a battery conviction because the very same serious bodily injury
              that was the basis of the Class C enhancement was also the basis
              of a Class A enhancement to a burglary conviction).


              On the other hand, where separate victims are involved or the
              behavior or harm that is the basis of the enhancement is distinct
              and separate, no relief will be provided. See Woods v. State, 677
              N.E.2d 499, 501-02 (Ind. 1997) (affirming a Class A
              enhancement to a robbery conviction because the serious bodily
              injury that was the basis of the enhancement was separate and
              distinct from that which was the basis of a murder conviction);
              Jackson v. State, 625 N.E.2d 1219, 1222 (Ind. 1993) (same);
              Hansford v. State, 490 N.E.2d 1083, 1089 (Ind. 1986) (affirming
              Class A enhancements to burglary and robbery convictions
              because the serious bodily injuries that were the bases of the
              enhancements were inflicted on different victims).


      Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring opinion).


[9]   In Count II, the State charged Smith with criminal recklessness, a Level 6

      felony. Indiana Code Section 35-42-2-2 provides: “A person who recklessly,

      knowingly, or intentionally performs an act that creates a substantial risk of

      bodily injury to another person commits criminal recklessness.” The offense is


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 6 of 12
       a Level 6 felony if it is committed while armed with a deadly weapon. Ind.

       Code § 35-42-2-2(b)(1)(A). An automobile may be considered a “deadly

       weapon.” See DeWhitt v. State, 829 N.E.2d 1055, 1064 (Ind. Ct. App. 2005).

       The charging information provided:


               [O]n or about July 21, 2017, Jordan Smith, did recklessly
               perform an act that created substantial risk of bodily injury to
               Tyler Thompson and/or Michael Cleveland and/or Ian Michael
               by driving a vehicle in reverse directly towards Thompson and
               Cleveland, and that the act was committed while armed with a
               deadly weapon, all of which is contrary to the form of the statute
               made and provided by I.C. 35-42-2-2, a Level 6 felony . . . .


       Appellant’s App. Vol. II p. 19.


[10]   In Count VIII, the State charged Smith with resisting law enforcement, a Level

       6 felony, pursuant to Indiana Code Section 35-44.1-3-1, which provides: “A

       person who knowingly or intentionally . . . flees from a law enforcement officer

       after the officer has, by visible or audible means, including operation of the law

       enforcement officer’s siren or emergency lights, identified himself or herself and

       ordered the person to stop; commits resisting law enforcement . . . .” Ind. Code

       § 35-44.1-3-1(a)(3). The offense is a Level 6 felony if “the person uses a vehicle

       to commit the offense.” I.C. § 35-44.1-3-1(b)(1)(A). The charging information

       provided:


               On or about July 21, 2017, in Shelby County, Indiana, Jordan
               Smith did knowingly flee from a law enforcement officer after the
               officer had, by visible or audible means, identified himself or
               herself and ordered the defendant to stop. . . . In committing the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 7 of 12
               offense, the defendant did . . . use a vehicle. Level 6 felony [sic].
               ...


       Id. at 30.


[11]   Because the enhancements in both convictions involved the use of a vehicle,

       Smith argues that his conviction in Count VIII for resisting law enforcement

       must be reduced to a misdemeanor. Our Supreme Court addressed a similar

       argument in Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003). There, the

       defendant argued that his convictions for criminal confinement, a Class B

       felony; robbery, a Class B felony; and two counts of criminal deviate conduct,

       Class A felonies, violated the prohibition against double jeopardy because of

       “multiple enhancements for the presence of a singular knife.” Miller, 790

       N.E.2d at 438. He argued that “the same deadly weapon was used to elevate

       his sentences for these counts.” Id. Our Supreme Court rejected the argument.

       The Court held: “The repeated use of a weapon to commit multiple separate

       crimes is not ‘the very same behavior’ precluding its use to separately enhance

       the resulting convictions. Rather, the use of a ‘single deadly weapon during the

       commission of separate offenses may enhance the level of each offense.’” Id.

       (citations omitted).


[12]   Similarly, here, Smith’s resisting law enforcement conviction was enhanced

       because he fled from Deputy Michael in a vehicle and then fled from Deputy

       Thompson and Corporal Cleveland in the vehicle. Smith’s criminal

       recklessness conviction was enhanced because he used a deadly weapon, i.e., a

       vehicle, to commit criminal recklessness by stopping the vehicle and then
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 8 of 12
       driving the vehicle in reverse toward Deputy Thompson and Corporal

       Cleveland. The two enhancements were based on very different actions taken

       by Smith with the vehicle, which involved three victims. Under these

       circumstances, the repeated use of the vehicle to commit separate crimes is not

       “the very same behavior.” Id. As in Miller, the separate enhancements of the

       convictions do not violate the prohibition against double jeopardy.


                                         II. Inappropriate Sentence

[13]   Next, Smith argues that his sentence is inappropriate. Indiana Appellate Rule

       7(B) provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender.” McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). The defendant

       bears the burden to persuade this court that his or her sentence is inappropriate.

       Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). Indiana’s flexible sentencing

       scheme allows trial courts to tailor an appropriate sentence to the circumstances

       presented, and the trial court’s judgment “should receive considerable

       deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal

       role of appellate review is to attempt to “leaven the outliers.” Shoun v. State, 67

       N.E.3d 635, 642 (Ind. 2017). Whether we regard a sentence as inappropriate at

       the end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 9 of 12
[14]   In determining whether a sentence is inappropriate, we look to the statutory

       ranges established for the classification of the relevant offense. Smith was

       sentenced for four Level 6 felonies and one Class C misdemeanor. Pursuant to

       Indiana Code Section 35-50-2-7(b), a person who commits a Level 6 felony

       “shall be imprisoned for a fixed term of between six (6) months and two and

       one-half (2 ½ ) years, with the advisory sentence being one (1) year.” Under

       Indiana Code Section 35-50-3-4, a person “who commits a Class C

       misdemeanor shall be imprisoned for a fixed term of not more than sixty (60)

       days.” The trial court sentenced Smith to two years for each of the Level 6

       felony convictions and sixty days for the Class A misdemeanor conviction. The

       trial court ordered that the sentences for two of the Level 6 felony convictions

       be served consecutively to each other and concurrently with the remaining

       sentences, for an aggregate sentence of four years in the DOC.


[15]   The nature of the offenses is that Smith stole a vehicle and, when Deputy

       Michael attempted to perform a traffic stop, Smith led Deputy Michael on a

       high-speed pursuit. Other officers deployed stop sticks, and in an effort to avoid

       stop sticks, Smith drove through a corn field. Deputy Thompson and Corporal

       Cleveland then pursued Smith. When Deputy Michael attempted to deploy

       stop sticks again, Smith stopped his vehicle and then drove in reverse toward

       Deputy Thompson and Corporal Cleveland. When the officers fired their

       weapons at Smith, Smith was wounded and stopped the vehicle. A search of

       the vehicle after Smith’s arrest revealed methamphetamine and a glass pipe.

       Smith later admitted that he had been smoking methamphetamine with the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 10 of 12
       female passenger in the vehicle. Smith placed not only himself and his

       passenger in extreme risk by his actions, but also placed the three officers and

       the public at extreme risk.


[16]   As for his character, twenty-seven-year-old Smith’s criminal history includes a

       2012 conviction for driving while suspended, a Class A misdemeanor; a 2014

       conviction for resisting law enforcement, a Class D felony; 2014 convictions for

       resisting law enforcement, a Level 6 felony, and criminal recklessness, a Level 6

       felony; and a 2015 conviction for invasion of privacy, a Class A misdemeanor.

       At the time of the instant offenses, Smith also had a pending charge for auto

       theft, a Level 6 felony. Furthermore, Smith has had multiple violations of his

       probation and/or community corrections rules. Smith argues that the trial

       court should have placed him in a program to treat his “mental health and/or

       substance abuse disorders.” Appellant’s Br. p. 13. The trial court did consider

       Smith’s claims of mental health issues and noted that Smith had provided no

       documentation of such issues. The trial court noted that there was obviously a

       significant substance abuse issue. In his PSI, however, Smith blamed his

       problems on an addiction to women and claimed that he did not have a

       problem with drugs or alcohol.


[17]   Smith put multiple people in extreme risk with his actions. His criminal history

       shows an ongoing pattern of criminal activity and long-term substance abuse

       issues. Despite the nature of the offenses and Smith’s criminal history, the trial

       court only sentenced Smith to an aggregate sentence of four years. Under these



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 11 of 12
       circumstances, we cannot say that the four-year sentence was inappropriate in

       light of the nature of the offenses and Smith’s character.


                                                 Conclusion
[18]   Smith’s convictions for criminal recklessness, a Level 6 felony, and resisting law

       enforcement, a Level 6 felony, do not violate the prohibition against double

       jeopardy. Smith’s four-year sentence is not inappropriate. We affirm.


[19]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1846 | March 21, 2019   Page 12 of 12
