MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 03 2018, 10:11 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
                                                         Curtis T. Hill, Jr.
Sean C. Mullins
                                                         Attorney General of Indiana
Appellate Public Defender
Crown Point, Indiana                                     Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Thomas Raymond Smith,                                    December 3, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1121
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff.                                      Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1411-MR-9



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018               Page 1 of 15
                                          Case Summary
[1]   Thomas Raymond Smith (“Smith”) challenges the trial court’s decision to deny

      his motion to dismiss the charge against him on double jeopardy grounds, and

      his conviction for murder, a felony.1


[2]   We affirm.



                                                   Issues
[3]   Smith raises two issues on appeal, which we restate as follows:


                I.       Whether principles of double jeopardy required dismissal
                         after the first mistrial because the prosecutor had
                         intentionally provoked defendant to move for a mistrial at
                         the initial trial.


                II.      Whether the State presented sufficient evidence to support
                         his murder conviction.


                               Facts and Procedural History
[4]   In October of 2014, Smith and David Krawczenia (“Krawczenia”) ran a

      business in which Krawczenia bought vehicles, Smith repaired those vehicles at

      his business, All About Auto, and Krawczenia then sold the vehicles. During

      the course of Smith’s and Krawczenia’s business relationship, Krawczenia paid




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 2 of 15
      for the rent, tools and other equipment for All About Auto. As of November

      2014, Smith owed Krawczenia approximately $16,000. Kevin Akers (“Akers”)

      and Jack Hicks (“Hicks”) worked for Smith at All About Auto. On more than

      one occasion, Smith had joked to Akers that it would be easier to “get rid of”

      Krawczenia than to pay the debt he owed to Krawczenia. Tr. Vol. III at 165.


[5]   On Saturday, November 1, 2014, Hicks was working at All About Auto and

      helped Smith push a silver Grand Marquis vehicle with a dead battery into the

      garage. Akers called Smith at All About Auto around noon that day, and

      Smith told Akers that he was waiting for Krawczenia to come there to collect

      some money. Akers arrived at All About Auto around 3:00 p.m. on November

      1 to collect some money Smith owed Akers. Around the same time, Melissa

      Garcia (“Garcia”), the marketing employee for All About Auto, also arrived at

      the business. Garcia was looking for Krawczenia and Smith told Garcia that

      Krawczenia had left All About Auto about an hour earlier that day.


[6]   Krawczenia lived with his girlfriend, Theresa Jacobs (“Jacobs”). On the

      morning of November 1, Krawczenia told Jacobs that he was planning to do

      some campaigning in the morning and then collect a $16,000 debt. When

      Krawczenia failed to return home that evening, Jacobs drove to All About Auto

      three separate times to look for him. The third time she saw Krawczenia’s

      car—a silver Chrysler Sebring—in the All About Auto parking lot. She looked

      into the car and saw some papers, a water bottle, and a phone charger. The

      following day, November 2, Jacobs filed a missing person’s report with the

      Portage Police Department.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 3 of 15
[7]   On November 2, Akers met Smith at around noon for breakfast. Smith was

      agitated and, when Akers asked what was wrong, Smith replied, “It’s done.”

      Akers asked what was done, and Smith replied, “Dave [Krawczenia]. Dave’s

      dead. I shot him.” Tr. Vol. III at 151-52. Smith told Akers that, on November

      1, while Krawczenia was throwing spent fireworks out of the trunk of the

      Grand Marquis that was in the All About Auto shop, Smith came up behind

      Krawczenia and shot him. Smith told Akers he had shot Krawczenia “not long

      before” Akers had arrived at the shop on November 1. Id. at 153. Smith told

      Akers that Smith put Krawczenia in the trunk of the Grand Marquis, pushed

      the vehicle outside of the shop, and had it towed off the All About Auto parking

      lot.


[8]   A tow truck driver who Smith frequently employed towed a vehicle he recalled

      as either a Grand Marquis or a Grand Victoria from All About Auto to a new

      garage that Smith intended to rent, Road Running Garage, on November 1.

      Smith met the tow truck driver at All About Auto and followed him to the

      Road Running Garage. Smith’s cell phone activity was consistent with him

      being near All About Auto on November 1 until about 4:30 p.m., and then his

      cell phone activity placed him near the Road Running Garage.


[9]   On the morning of November 3, Reggie Russell (“Russell”), a friend of

      Krawczenia’s, went to All About Auto to look for Krawczenia because Jacobs

      had told him that Krawczenia was missing. Russell saw Krawczenia’s silver

      Sebring in the All About Auto parking lot. Smith arrived at All About Auto

      about twenty minutes later, and Russell told Smith that Krawczenia was

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 4 of 15
       missing. Russell asked Smith if he had seen Krawczenia, and Smith stated that

       Krawczenia had left with “two rugged black guys” in the early afternoon of

       Saturday, November 1, to purchase a vehicle. Tr. Vol. III at 61, 62-63. Smith

       told Russell that Smith had given Krawczenia $10,000 in payment on the debt

       he owed before Krawczenia had left All About Auto on November 1. Russell

       asked Smith if he had the keys to Krawczenia’s Sebring and Smith did. Smith

       and Russell looked in the trunk of Krawczenia’s Sebring and saw only some

       brake pads. Russell saw “a couple water bottles” inside the Sebring’s interior.

       Id. at 65.


[10]   On November 3, Detective Ed Jenkins of the Lake County Sheriff’s

       Department (“Det. Jenkins”), who was assigned to investigate the missing

       person report regarding Krawczenia, spoke with Smith at All About Auto.

       Smith informed Det. Jenkins that Krawczenia had left All About Auto on

       November 1 with a “black couple.” Tr. Vol. V at 96. Det. Jenkins arranged for

       Smith to meet with him again for an interview on November 4 and 5 but Smith

       failed to attend either appointment. On November 5, Det. Jenkins went to All

       About Auto to look for Smith and noticed that Krawczenia’s silver Sebring was

       no longer in the parking lot.


[11]   On the morning of November 5, Smith made five phone calls. The location for

       each call was consistent with Smith being at the Mansards Apartments.


[12]   On November 14, the Lake County Sheriff’s Department was notified that the

       silver Chrysler Sebring was located in the parking lot of the Mansards


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 5 of 15
       Apartment complex. The police transported the car to the police garage to

       search it. When the police opened the trunk, they found Krawczenia’s body,

       absent the head and arms. Inside the Sebring, police found four water bottles,

       one of which was determined to have Smith’s DNA on it.


[13]   On November 17, 2014, the State charged Smith with murder, a felony. On

       February 21, 2017, Smith’s first jury trial began. The State called Jacobs as its

       first witness. Prosecutor Stanley Levco (“Levco”) asked Jacobs when she next

       saw Smith after seeing him at All About Auto on November 2, 2014, and

       Jacobs responded that she next saw him at the “let to bail hearing in January.”

       Tr. Vol. II at 52. Defense counsel asked to approach the bench and requested a

       mistrial because Jacobs’s reference to Smith needing bail was prejudicial. The

       trial court denied that request. Levco informed the trial court and defense

       counsel that he had not intended to elicit information concerning the bail

       hearing by his question.


[14]   During cross-examination, defense counsel asked Jacobs about a prior

       deposition in an attempt to impeach her. Jacobs responded that her first

       deposition was at the bail hearing. Defense counsel again moved for a mistrial,

       alleging that Jacobs was intentionally trying to put prejudicial information

       before the jury. The trial court found that defense counsel failed to meet his

       burden to demonstrate that Smith was put in grave peril. However, it noted

       that, if the information was divulged again, the court would “grant any motion

       that [defense counsel] make[s]” Tr. Vol. II at 84. The trial court admonished



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 6 of 15
       Jacobs again to answer only the questions posed to her by counsel, to not

       expound, and to not refer to the bail hearing as such.


[15]   On the State’s opportunity for re-direct examination of Jacobs, Levco asked

       permission to ask questions about subjects not covered on cross-examination,

       and the trial court granted that request. The prosecutor showed Jacobs three

       photographs of the All About Auto building and parking lot that were not

       admitted earlier because a proper foundation had not been laid through Jacobs.

       Defense counsel objected and, because the trial court believed that the witness

       was attempting to listen to the bench conference, the court held a discussion in

       the judge’s chambers off the record. The agreed upon procedure appeared to be

       that the prosecutor would again go through the foundational question and then

       defense counsel would have the opportunity to voir dire the witness before the

       court ruled on the admission of the photographs.


[16]   During the voir dire examination, Jacobs stated that she did not know when the

       photographs were taken. Defense counsel asked Jacobs if the prosecutor had

       ever shown her and discussed with her the photographs, and Jacobs responded

       that it was Levco’s predecessor prosecutor who showed her the pictures and

       discussed them with her. Tr. Vol. II at 144. At a bench conference, defense

       counsel argued that, because Levco had told the trial court and defense counsel

       in chambers that he had shown the pictures to Jacobs and discussed them with

       her, defense counsel now had to call Levco as a witness to impeach Jacobs’s

       claims that Levco never showed her the pictures or discussed them with her.

       Levco stated that he did not remember whether he showed Jacobs the pictures,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 7 of 15
       but he knew that she had told him she would be able to identify the pictures.

       Levco said he believed he had told the defense lawyer and the judge in

       chambers that he “wasn’t sure whether [he showed Jacobs the picture] or not.”

       Id. at 150. Levco’s co-counsel then informed the court that Levco had

       experienced “some memory issues” while preparing for the trial. Id. at 150-51.

       The trial court noted that Levco had earlier stated in chambers, “I showed her

       photos at lunch during the lunch break.” Id. at 151. The trial court stated that

       it believed Levco was “having some memory issues” but did not believe the

       prosecutor was “intentionally trying to mislead the Court or anything.” Id. at

       152. Defense counsel again asked for a mistrial because he believed that

       Jacobs’s testimony put Levco in a compromised position. The photographs

       were not admitted into evidence, and the trial court granted the mistrial, over

       the State’s objection.


[17]   On April 6, 2017, Smith filed a motion to dismiss in which he alleged that the

       prosecutor had engaged in intentional misconduct with respect to the attempts

       to admit the photographs through Jacobs and that such misconduct created the

       need for a mistrial. The court held a hearing on April 7, at which point defense

       counsel rested on his written motion. The trial court concluded that there was

       “no showing of intentional misconduct by the State[;]” rather, the State “had an

       out of control witness.” Tr. Vol. II at 176. The trial court denied the motion to

       dismiss.


[18]   Smith’s second jury trial occurred from February 26, 2018, through March 2,

       2018. The former doctor for Lake County who originally performed

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 8 of 15
       Krawczenia’s autopsy was unavailable to testify at the trial. His successor, Dr.

       John Feczko (“Dr. Feczko”), determined from his review of the records that

       Krawczenia died seven to fourteen days prior to the discovery of his body on

       November 14, 2014. Dr. Feczko accounted for the effect that cold weather

       would have on the decomposition of the body. Dr. Feczko concluded that

       Krawczenia’s head and arms were removed after his death because there was

       no sign of vital reaction at the amputation sites. The head and arms had not

       been recovered and, because of that, Dr. Feczko was unable to determine the

       cause of death. Dr. Feczko discounted the previous doctor’s determination that

       rigor mortis was present because the typical method for determining the

       presence of rigor mortis is by checking the hands, fingers, and arms. An

       accepted secondary methodology is by rotating the neck of the deceased.

       Because those methodologies were unavailable and because the previous doctor

       did not describe the method he used, Dr. Feczko did not rely on the conclusion

       that rigor mortis was present.


[19]   Dr. Jonathan Arden, who was hired by Smith, testified that Krawczenia was

       dead less than eight to ten days at the time he was found. Dr. Arden based his

       conclusion in part on the original autopsy report concluding that Krawczenia’s

       body was still in rigor mortis. He acknowledged that, if the report was wrong

       about the presence of rigor mortis, that could potentially change his opinion

       regarding the time of death.


[20]   The jury returned a guilty verdict. On April 11, 2018, the court sentenced

       Smith to sixty years of imprisonment. This appeal ensued.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 9 of 15
                                 Discussion and Decision
                                           Double Jeopardy
[21]   Smith contends that principles of double jeopardy required dismissal of the

       charges after the first mistrial. We have recently addressed this precise issue:


               Both the United States and Indiana Constitutions forbid the State
               from placing a person twice in jeopardy. U.S. Const. amend. V;
               Ind. Const. Art. [1], § 14. Retrial following a defendant’s
               successful mistrial motion is only barred where the government’s
               conduct is responsible for the defendant’s mistrial motion. Butler
               v. State, 724 N.E.2d 600, 603 (Ind. 2000). The essential inquiry is
               whether the prosecutor brought about the mistrial motion; that is,
               whether the prosecutor acted with the intent to cause termination
               of the trial by provoking or goading the defendant into moving
               for a mistrial. Willoughby v. State, 660 N.E.2d 570, 576 (Ind.
               1996). If the prosecutor acted with the requisite intent, then
               double jeopardy bars a retrial. Wilson v. State, 697 N.E.2d 466,
               472 (Ind. 1998). These rules have been codified at Indiana Code
               section 35-41-4-3, which provides as follows:


               (a) A prosecution is barred if there was a former prosecution of
               the defendant based on the same facts and for commission of the
               same offense and if:


                                                      ***


               (2) the former prosecution was terminated after the jury was
               impaneled and sworn or, in a trial by the court without a jury,
               after the first witness was sworn, unless (i) the defendant
               consented to the termination or waived, by motion to dismiss or
               otherwise, his right to object to the termination....



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 10 of 15
                (b) If the prosecuting authority brought about any of the
                circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this
                section, with intent to cause termination of the trial, another
                prosecution is barred.


       Harbert v. State, 51 N.E.3d 267, 274 (Ind. Ct. App. 2016), trans. denied. We look

       at the prosecutor’s subjective intent when determining whether he intended to

       provoke a mistrial. Farris v. State, 753 N.E.2d 641, 646 (Ind. 2001). The intent

       of the prosecutor is a factual determination which we review under the clearly-

       erroneous standard. Id. And, “[a]lthough a trial court’s determination of

       prosecutorial intent is not conclusive for purposes of state appellate review, we

       do regard its determination as very persuasive.” Butler v. State, 724 N.E.2d 600,

       603-04 (Ind. 2000) (quotation and citation omitted).


[22]   Here, Smith contends that the prosecutor’s “continued insistence on

       introducing exhibits [i.e., the pictures] for which the witness [i.e., Jacobs] could

       not lay a proper foundation” evinced an intent on the prosecutor’s part to

       “prematurely terminate the trial.” Appellant’s Br. at 13. However, it is unclear

       exactly what State action Smith believes was designed to provoke a mistrial.

       The basis for the mistrial was not the State’s attempt to get the photographs

       admitted into evidence. Rather, it was the conflict between Jacobs’s testimony

       that a prosecutor other than Levco had shown her the photos2 and Levco’s in-




       2
         Thus, Smith is mistaken when he claims that Jacobs testified that “the State had never discussed the
       photographs with her.” Appellant’s Br. at 15. Rather, Jacobs testified that the prosecutor “previous” to
       Levco had discussed with her the photo that she was being shown at trial. Tr. Vol. II at 144.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018                Page 11 of 15
       chambers statement that he had shown Jacobs the photos, such that Levco

       would have to be called as a witness to impeach Jacobs’s credibility. However,

       the prosecutor was not the one who elicited Jacobs’s testimony that a different

       prosecutor showed her the photos; defense counsel did that. Because the

       prosecutor did not ask Jacobs who had shown her the photographs, there was

       no evidence that the prosecutor intended to provoke a mistrial by eliciting false

       testimony which could only be impeached by Prosecutor Levco.


[23]   To the extent Smith contends that the mistrial was required because Levco

       falsely stated that he showed Jacobs the photographs, the trial court did not

       clearly err in concluding that there was no evidence that Levco intentionally

       deceived the court. Rather, the record supports the trial court’s conclusion that

       Levco was experiencing difficulty with his memory during the trial. And a

       faulty memory is not evidence of an intent to deceive. The record further

       supports the trial court’s conclusion that the prosecutor had no “control” over

       Jacobs and her testimony, especially since her problematic testimony was

       elicited by the defense counsel. Tr. Vol. II at 176.


[24]   And, finally, to the extent Smith contends the mistrial was required by the

       State’s failure to disclose Levco’s memory problems,3 he is mistaken. The court

       declared a mistrial on the assumption that Levco did previously show Jacobs




       3
         As the State notes, Smith failed to raise this particular claim with the trial court. However, because double-
       jeopardy violations constitute fundamental error, they may be raised for the first time on appeal. Garcia v.
       State, 686 N.E.2d 883, 884 (Ind. Ct. App. 1997).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018                  Page 12 of 15
       the photos and discuss them with her (regardless of whether Levco remembered

       doing so), that Jacobs’s testimony conflicted with that fact, and that Levco

       would be required to testify against Jacobs in order for Smith to impeach her

       credibility. Thus, Levco’s memory problems were irrelevant to the trial court’s

       decision to declare a mistrial.4


[25]   The trial court did not clearly err in denying Smith’s motion to dismiss the

       charges against him on double jeopardy grounds.


                                    Sufficiency of the Evidence
[26]   Smith challenges the sufficiency of the evidence to support his conviction for

       murder. Our standard of review of the sufficiency of the evidence is well-

       settled:


                When reviewing the sufficiency of the evidence needed to
                support a criminal conviction, we neither reweigh evidence nor
                judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
                (Ind. 2009). “We consider only the evidence supporting the
                judgment and any reasonable inferences that can be drawn from
                such evidence.” Id. We will affirm if there is substantial
                evidence of probative value such that a reasonable trier of fact
                could have concluded the defendant was guilty beyond a
                reasonable doubt. Id.




       4
         Similarly, Jacobs’s testimony about Smith’s previous bail hearing is also irrelevant because it did not serve
       as the basis for the trial court’s declaration of a mistrial.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018                  Page 13 of 15
       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

       Moreover, “[a] conviction may be based on circumstantial evidence alone so

       long as there are reasonable inferences enabling the factfinder to find the

       defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

       385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied. And a conviction

       may be sustained on only the uncorroborated testimony of a single witness.

       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[27]   To support Smith’s conviction of murder, the State was required to show that

       Smith (1) knowingly or intentionally (2) killed (3) Krawczenia. I.C. § 35-42-1-

       1(1). The State provided evidence that Smith killed Krawczenia at All About

       Auto on November 1, 2014; placed the body in the Grand Marquis and towed

       that vehicle to Road Running Garage; subsequently transferred Krawczenia’s

       body to the trunk of Krawczenia’s Sebring; drove the Sebring to Mansards

       Apartments on or around November 5; and left the Sebring parked there. Akers

       testified that Smith confessed to him that he killed Krawczenia at All About

       Auto on November 1, 2014, placed Krawczenia’s body in the Grand Marquis

       car, and had that car towed from the All About Auto lot to the Road Running

       Garage. Akers’s testimony is bolstered by records of Smith’s telephone calls

       from All About Auto and Road Running Garage on November 1 and the tow

       truck driver’s testimony. The State also presented: witnesses’ testimonies that

       Krawczenia’s silver Sebring was at All About Auto until November 5 and that

       Smith had the keys to the Sebring; records of Smith’s telephone calls from the

       location of the Mansards Apartments on November 5; and testimony that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 14 of 15
       Krawczenia’s body was found in the trunk of his Sebring at the Mansards

       Apartments on November 14. And the State provided evidence, through Dr.

       Feczko’s testimony, that Krawczenia was killed seven to fourteen days before

       his body was found on November 14. That was sufficient evidence to support a

       jury verdict that Smith killed Krawczenia on November 1, 2014. Smith’s

       contentions to the contrary are simply requests that we reweigh the evidence

       and assess witness credibility, which we cannot do. Clemons, 996 N.E.2d at

       1285.



                                               Conclusion
[28]   The trial court did not clearly err in denying Smith’s motion to dismiss the

       charges against him on double jeopardy grounds as there was no evidence that

       the prosecutor intentionally provoked the motion for a mistrial. And the State

       presented sufficient evidence that Smith murdered Krawczenia on November 1,

       2014.


[29]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1121 | December 3, 2018   Page 15 of 15
