      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, 10:14 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
      Scott King                                                Curtis T. Hill, Jr.
      King Brown & Murdaugh LLC                                 Attorney General of Indiana
      Merrillville, Indiana
                                                                Marjorie Lawyer-Smith
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Garrett DaVarris Smith, Jr.,                              April 13, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-1525
              v.                                                Appeal from the Lake Superior
                                                                Court
      State of Indiana,                                         The Honorable Salvador Vasquez,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                45G01-1612-MR-7



      Friedlander, Senior Judge.


[1]   Garrett DaVarris Smith, Jr. appeals his convictions of aggravated battery, a

      Level 3 felony, and criminal recklessness, a Level 5 felony, asserting that his


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020                  Page 1 of 7
      convictions violate his right against double jeopardy. Concluding that Smith’s

      rights were not violated, we affirm.


[2]   The pertinent facts of this case can be summarized as follows: Smith was at the

      residence of his friends Davon and Davion Snow. At some point after Smith’s

      arrival, Davon told him to leave and escorted him to the door. Smith exited,

      and Davon closed the door. Shots were then fired through the door, at least

      one of which struck Davon in his hand and leg.


[3]   As a result of this incident, the State charged Smith with aggravated battery, a
                            1                                                          2
      Level 3 felony; battery causing serious bodily injury, a Level 5 felony; battery

      with a deadly weapon, a Level 5 felony; and criminal recklessness, a Level 5
                 3
      felony. A jury found Smith guilty as charged on all four counts. The court

      entered judgment on the aggravated battery, declined to enter judgment on the

      other two battery offenses, and reserved judgment until sentencing on the

      criminal recklessness offense. The court subsequently entered judgment on the

      criminal recklessness charge and sentenced Smith to an aggregate term of ten

      years on the two convictions. Smith now appeals his convictions claiming that

      the jury relied upon the same evidence in finding him guilty of aggravated

      battery as it did in finding him guilty of criminal recklessness.




      1
          Ind. Code § 35-42-2-1.5 (2014).
      2
          Ind. Code § 35-42-2-1 (2016).
      3
          Ind. Code § 35-42-2-2 (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020       Page 2 of 7
[4]   The Indiana Constitution provides in part that “[n]o person shall be put in

      jeopardy twice for the same offense.” IND. CONST. art. I, § 14. Two or more

      offenses are the same offense in violation of the double jeopardy clause 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 (Ind. 1999). In this case,

      Smith claims a violation only under the actual evidence test, alleging that there

      was no evidence of a victim other than Davon.


[5]   With regard to the actual evidence test, we examine the actual evidence

      presented at trial in order to determine whether each challenged offense was

      established by separate and distinct facts. Id. To show that two challenged

      offenses constitute the same offense under the actual evidence test, a defendant

      must demonstrate a reasonable possibility that the evidentiary facts used by the

      factfinder to establish the essential elements of one offense may also have been

      used to establish the essential elements of a second offense. Id. A “reasonable

      possibility” requires “substantially more than a logical possibility” and involves

      a practical assessment of whether the factfinder “may have latched on to exactly

      the same facts for both convictions.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind.

      2008). Further, our State’s double jeopardy clause is not violated when the

      evidentiary facts establishing the essential elements of one offense also establish

      only one, or even several, but not all, of the essential elements of a second

      offense. Spivey v. State, 761 N.E.2d 831 (Ind. 2002). In applying the actual


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020   Page 3 of 7
      evidence test, we evaluate the evidence from the factfinder’s perspective, and

      we may consider the charging information, jury instructions, and arguments of

      counsel. Newgent v. State, 897 N.E.2d 520 (Ind. Ct. App. 2008).


[6]   In the second amended information, the State alleged that Smith committed

      aggravated battery by knowingly or intentionally inflicting injury on Davon that

      created a substantial risk of death or caused protracted loss or impairment of the

      function of a bodily member or organ. Appellant’s App. Vol. 2, p. 214; see Ind.

      Code § 35-42-2-1.5. The State also alleged that Smith committed criminal

      recklessness by recklessly, knowingly, or intentionally performing an act that

      created a substantial risk of bodily injury to another person by shooting a

      firearm into an inhabited dwelling. Appellant’s App. Vol. 2, p. 214; see Ind.

      Code § 35-42-2-2. Further, the charging information was included as a final

      instruction to the jury. Appellant’s App. Vol. 2, pp. 162-63.


[7]   The evidence presented at trial showed that Smith and brothers Davon and

      Davion Snow were friends from school, and Smith often stayed at the Snow

      residence. On the evening of November 30 and into the early morning hours of

      December 1, 2016, Smith was at the Snow residence. Present in the residence

      at the time were Davon; Davion; their brother, Stacy Crouch; the boys’ mother;

      and Smith. Smith entered the house, fixed himself some food, and sat on the

      couch. Davion was playing a game on the computer. He overheard Davon

      and Smith exchange words, and, at some point, Davon told Smith that he was

      not allowed to remain at the home. As Smith got up to leave, he took his

      handgun from under the couch, and Davon escorted him to the door. Once

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020   Page 4 of 7
      Davon closed the door, several shots were fired through it. Davon was shot in

      his hand and leg, and both injuries required surgery. The injuries to Davon’s

      hand continue to cause him problems. Investigation of the scene revealed three

      bullet holes in the door, and one bullet was recovered from Davon’s thigh.


[8]   The basis of the aggravated battery is Smith’s act of shooting Davon and

      causing him serious injury and impairment. In contrast, the basis of the

      criminal recklessness charge is Smith’s act of creating a substantial risk of bodily

      injury to other people by shooting into an occupied home. The charging

      information for criminal recklessness made no mention of Davon and was

      based on the act of shooting into the occupied dwelling, thus creating a

      substantial risk of injury to anyone who was inhabiting the dwelling at the time.

      The evidence at trial was clear that, in addition to Davon, his brothers Davion

      and Stacy and their mother were all present in the home at the time Smith fired

      the shots through the front door. Smith fired several shots, and, although the

      evidence showed that at least one of the shots hit Davon, the remainder created

      risk of injury to the other people occupying the dwelling. Thus, the convictions

      for the two offenses involve separate victims. See Rawson v. State, 865 N.E.2d

      1049 (Ind. Ct. App. 2007) (holding no double jeopardy violation because

      convictions involved separate victims where conviction for attempted

      aggravated battery was based on defendant shooting at victim while victim fled

      and conviction for criminal recklessness was based on defendant shooting in

      direction of victim’s home), trans. denied. Consequently, there is no double

      jeopardy violation here because there were separate victims—Smith’s act


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020   Page 5 of 7
       inflicted significant injury on Davon, and it also created a substantial risk of

       injury to anyone in the house.


[9]    Smith raises the additional argument that his convictions violate the “very same

       act” test. In addition to the constitutional test prescribed in Richardson, the

       Indiana 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.” Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002). One such rule our supreme court has

       identified is the very same act test, which is distinct from the actual evidence

       test. Bradley v. State, 113 N.E.3d 742 (Ind. Ct. App. 2018), trans. denied (2019).

       The very same act test applies “when the defendant’s ‘behavior’ underlying one

       offense is ‘coextensive with the behavior . . . necessary to establish an element

       of’ another offense.” Id. at 752 (quoting Taylor v. State, 101 N.E.3d 865, 872

       (Ind. Ct. App. 2018)). Although the “reasonable possibility” language is most

       commonly associated with the actual evidence test, see Lee, 892 N.E.2d at 1236,

       that language has also been used to determine whether a double jeopardy

       violation has occurred under the very same act test. Bradley, 113 N.E.3d 742.


[10]   Smith contends that his convictions violate the very same act test because his

       act of shooting at the Snow home was the underlying behavior for both. The

       flaw in this argument is that Snow did not fire just one shot through the door of

       the Snow residence; he fired several shots. As we explained in our discussion of

       the actual evidence test, there were multiple shots fired with different victims.

       At least one of the shots fired hit Davon, causing him serious injury and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020   Page 6 of 7
       impairment. The remaining shots fired into the home caused substantial risk of

       injury to the remaining occupants, other than Davon. Thus, there were

       different shots with different victims, and, as such, there is not a reasonable

       possibility that Snow’s behavior underlying his aggravated battery conviction

       formed the evidentiary basis underlying his criminal recklessness conviction.

       See Wilcoxson v. State, 132 N.E.3d 27 (Ind. Ct. App. 2019) (rejecting argument

       that two attempted murder convictions violated very same act test where, in

       addition to firing one shot that went through window, defendant also fired

       fifteen other shots), trans. denied.


[11]   Judgment affirmed.


       Bradford, C.J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020   Page 7 of 7
