MEMORANDUM DECISION                                                          FILED
                                                                        Mar 22 2017, 10:32 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
                                                                              and Tax Court

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
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Billy Neeley,                                            March 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         66A03-1608-CR-1933
        v.                                               Appeal from the Pulaski Superior
                                                         Court
State of Indiana,                                        The Honorable Patrick
Appellee-Plaintiff.                                      Blankenship, Judge
                                                         Trial Court Cause No.
                                                         66D01-1507-F6-65



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 66A03-1608-CR-1933 | March 22, 2017            Page 1 of 5
                                             Case Summary
[1]   Billy Neeley appeals his Level 6 felony convictions for domestic battery and

      battery in the presence of a child. We reverse in part and affirm in part.


                                                     Issue
[2]   Neeley raises one issue for our review, which is whether his convictions for

      domestic battery and battery in the presence of a child violate the Indiana

      Constitution’s prohibition against double jeopardy.


                                                     Facts
[3]   Casey Carter has three children under the age of sixteen. Carter has known

      Neeley for four or five years, and Neeley is the father of Carter’s two youngest

      children. On July 14, 2015, Carter and Neeley lived together in Pulaski

      County. Carter and Neeley were in their house with the three children when

      they began arguing and yelling. Ultimately, Carter and Neeley were involved

      in an altercation. Neeley hit Carter one time “with a closed fist, in an upper cut

      motion,” and Carter suffered a cut to her chin that required medical attention at

      the hospital. Tr. p. 174.


[4]   The State charged Neeley with two Level 6 felonies—domestic battery and

      domestic battery in the presence of a child. A jury found Neeley guilty of both

      charges, and the trial court entered judgments of conviction on both counts. On

      July 28, 2016, the trial court sentenced Neeley to twenty-four months executed

      on each charge, and suspended twelve months of each sentence. The trial court

      ordered Neeley to serve his sentences concurrently.
      Court of Appeals of Indiana | Memorandum Decision 66A03-1608-CR-1933 | March 22, 2017   Page 2 of 5
                                                  Analysis
[5]   Neeley contends his convictions violate the Indiana Constitution’s prohibition

      against double jeopardy because “the charging instruments, the evidence at

      trial, and the State’s opening and closing statements demonstrate that the one

      hit to the chin was the basis” for both of his convictions. Appellant’s Br. p. 8.

      Neeley asks us to vacate one of his convictions. The State “recognizes” that

      Neeley’s convictions “may” violate double jeopardy principles. Appellee’s Br.

      p. 7.


[6]   The Double Jeopardy Clause of the Indiana Constitution provides that “[n]o

      person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, §

      14. “[T]wo or more offenses are the same offense in violation of article 1,

      section 14 if, with respect to . . . the actual evidence used to obtain convictions,

      the essential elements of one challenged offense also establish the essential

      elements of another challenged offense.” Garrett v. State, 992 N.E.2d 710, 719

      (Ind. Ct. App. 2013) (citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999)).


              Under 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. To find a
              double jeopardy violation under this test, we must conclude that
              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. The actual evidence test is applied to
              all the elements of both offenses. In other words . . . the Indiana
              Double Jeopardy Clause is not violated when the evidentiary
              facts establishing the essential elements of one offense also

      Court of Appeals of Indiana | Memorandum Decision 66A03-1608-CR-1933 | March 22, 2017   Page 3 of 5
              establish only one or even several, but not all, of the essential
              elements of a second offense.


      Id. (citing Richardson, 717 N.E.2d at 53, and Spivey v. State, 761 N.E.2d 831, 833

      (Ind. 2002)) (quotations omitted) (alteration in Garrett).


[7]   Here, the State charged Neeley with two crimes based on its allegation that

      Neeley struck Carter one time. Similarly, the State presented evidence of only

      one action by Neeley that resulted in an injury to Carter—striking Carter’s

      chin.1 The State concedes “there is a reasonable possibility that the evidentiary

      facts used by the jury to establish the essential elements of the domestic battery

      may also have been used to establish the essential elements of the battery,” and

      we agree. Appellee’s Br. p. 9.

[8]           When two convictions are found to contravene double jeopardy
              principles, a reviewing court may remedy the violation by
              reducing either conviction to a less serious form of the same
              offense if doing so will eliminate the violation. If it will not, one
              of the convictions must be vacated. In the interest of efficient
              judicial administration, the trial court need not undertake a full
              sentencing reevaluation, but rather the reviewing court will make
              this determination itself, being mindful of the penal consequences
              that the trial court found appropriate.




      1
        We acknowledge that Carter testified, in addition to Neeley striking her, she and Neeley were “wrestling
      around.” Tr. p. 164. Carter also testified she suffered an injury to the inside of her mouth, which the nurse
      who treated her described as a “small puncture wound inside of her lower lip, that presumably may have
      come from her teeth.” Id. at 164. Defense counsel characterized the injury to Carter’s mouth as a bitten lip.
      See id. at 164. The record contains no evidence that Neeley injured Carter when they wrestled or that Neeley
      inflicted the injury to the inside of Carter’s lip separately from inflicting the injury to Carter’s chin.

      Court of Appeals of Indiana | Memorandum Decision 66A03-1608-CR-1933 | March 22, 2017             Page 4 of 5
       Richardson, 717 N.E.2d at 54.


[9]    Here, simply reducing one of Neeley’s convictions would not eliminate the

       double jeopardy violation because any such reduced conviction would still

       require proof Neeley struck Carter. Instead, we vacate Neeley’s conviction for

       battery in the presence of a child.2 We affirm Neeley’s conviction and sentence

       for domestic battery.


                                                    Conclusion
[10]   There is a reasonable possibility that the jury used the same evidentiary facts to

       establish the essential elements of Neeley’s convictions for both battery in the

       presence of a child and domestic battery. As such, we vacate Neeley’s

       conviction for battery in the presence of a child and affirm his conviction and

       sentence for domestic battery. We reverse in part and affirm in part.


[11]   Reversed in part; affirmed in part.


       Kirsch, J., and Robb, J., concur.




       2
         The State requests that we vacate Neeley’s conviction for battery in the presence of a child. Neeley asks us
       to “vacate on of his convictions” but does not specifically argue which one. Appellant’s Br. p. 9.

       Court of Appeals of Indiana | Memorandum Decision 66A03-1608-CR-1933 | March 22, 2017               Page 5 of 5
