Michael Wayne Vest v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 25, 2019
• Docket: 18A-CR-2469
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 25 2019, 10:37 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Thomas Lowe Curtis T. Hill, Jr. Lowe Law Office Attorney General of Indiana New Albany, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Wayne Vest, June 25, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2469 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Andrew Adams, Appellee-Plaintiff. Judge Trial Court Cause No. 10C01-1702-F5-37

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 1 of 5 Case Summary [1] In June of 2018, Michael Wayne Vest was convicted of, inter alia, Level 5

felony robbery and Class A misdemeanor theft. Vest contends, and the State

agrees, that his convictions violate the prohibition against double jeopardy

pursuant to Article 1, Section 14 of the Indiana Constitution. We agree and

vacate Vest’s theft conviction.

Facts and Procedural History [2] On February 4, 2017, Haley Beyl was sitting in her vehicle waiting for her shift

at Logan’s Steakhouse in Clarksville to start when Vest opened her driver’s-side

door and demanded that she “get out of the car.” Tr. Vol. II p. 110. Vest then

stated, “I have a gun, get out of the car. I need your car.” Id. Vest eventually

pulled Beyl from the vehicle and drove away. A few hours later, Beyl’s vehicle

was discovered parked at a motel, and Vest was apprehended by police in

possession of Beyl’s car keys and bank card.

[3] On February 7, 2017, the State charged Vest with Count I, Level 5 felony

robbery; Count II, Level 6 felony auto theft; Count III, Level 6 felony unlawful

possession of a syringe; and Count IV, Class A misdemeanor theft and alleged

him to be a habitual offender. On June 5, 2018, a jury trial was held, and Vest

was found guilty as charged and admitted to being a habitual offender. The trial

court dismissed Count II, finding that it was a lesser-included offense of Count

I. The trial court sentenced Vest on Count I to six years with two years

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 2 of 5 suspended to probation, on Count III to two-and-one-half years, on Count IV to

one year, and six years on the habitual offender enhancement. The trial court

further ordered that Counts I, III, and IV be served concurrently, for an

aggregate sentence of twelve years of incarceration with two of those years

suspended to probation.

Discussion and Decision [4] Vest contends, and the State agrees, that his convictions for Level 5 felony

robbery and Class A misdemeanor theft violate the prohibition against double

jeopardy. Whether convictions violate double jeopardy is a question of law

which we review de novo. Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App.

2012).

Article 1, Section 14 of the Indiana Constitution provides that [n]o person shall be put in jeopardy twice for the same offense. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our Supreme Court concluded that two or more offenses are the same offense in violation of Article 1, Section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense. 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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 3 of 5 Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (internal citations

and quotations omitted). “Application of the actual evidence test requires the

reviewing court to identify the essential elements of each of the challenged

crimes and to evaluate the evidence from the jury’s perspective, considering

where relevant the jury instructions, argument of counsel, and other factors that

may have guided the jury’s determination.” Spivey v. State, 761 N.E.2d 831, 832

(Ind. 2002).

[5] We agree with both Vest and the State that his convictions violate the

prohibition against double jeopardy. During closing argument, the prosecutor

stated that

the list goes on and on of situations where, when you commit an act, you might be in violation of different statutes. And there are a variety of legal reasons for doing this that I won’t go into now, but it’s common for Prosecutors to charge the different statutes that are violated. And that’s what’s been done in this case. Essentially, there was a robbery of her, her car and what was in it and that’s the first Count. And then this auto theft and this theft are alternative Counts that are also statutes that were violated when this happened. And what will happen, as a matter of law, is I, as a Prosecutor, will say, yes, this conduct violated all of these statutes, so please come back and convict on each of those. When you go to the jury room, please find him guilty of each. Because, as a matter of law, what will happen is when the Judge comes time to sentence him and enter convictions, he will only enter convictions on the most highest on that Count and not the other two (2), if you convict on them. And so, it’s not like he’s going to get sentenced and convicted on multiple things based on the same incident ultimately.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 4 of 5 Tr. Vol. II pp. 221–22. Given the prosecutor’s closing argument, we agree with

the parties that there is a reasonable possibility that the evidentiary facts used by

the fact-finder to establish the essential elements of robbery were also used to

establish the essential elements of theft.

[6] Vest’s conviction for Class A misdemeanor theft is vacated.

Crone, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 5 of 5