Eric Charles Kyle v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 13, 2020
• Docket: 19A-CR-2848
• Status: Published

Opinion

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