Sylvester Demus v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 7, 2018
• Docket: 49A04-1709-CR-2002
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 07 2018, 8:15 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Sylvester Demus, March 7, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1709-CR-2002 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey L. Marchal, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G06-1610-F5-39427

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 1 of 4 [1] Sylvester Demus appeals his convictions for Level 5 Felony Domestic Battery 1

and Level 5 Felony Battery,2 arguing that the convictions violate the prohibition

against double jeopardy. The State concedes the issue, and we agree. We

reverse in part and remand with instructions to vacate Demus’s Level 5 Felony

Battery conviction and resentence accordingly.

[2] On September 30, 2016, Demus hit his wife with an object, pushed her onto

their bed, pinned her down, and threatened to kill her. The State filed eight

criminal charges against Demus, including intimidation, domestic battery, and

battery. The battery and domestic battery convictions were both enhanced to

Level 5 felonies based on the same prior conviction. Furthermore, the State

concedes that it “did not distinguish the facts that supported the domestic

battery from the facts that supported the battery in its closing arguments.”

Appellee’s Br. p. 5. After a jury trial, the jury hung on several counts but found

Demus guilty of Level 6 felony domestic battery, Level 6 felony battery, and

Level 6 felony intimidation; Demus then pleaded guilty to the enhancements of

the domestic battery and battery counts, raising them both to Level 5 felonies.

On August 3, 2017, the trial court sentenced Demus to concurrent sentences of

545 days for each of the three convictions. Demus now appeals.

1 Ind. Code § 35-42-2-1.3. 2 I.C. § 35-42-2-1.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 2 of 4 [3] Two convictions violate the double jeopardy clause of the Indiana Constitution

if 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.” Richardson v.

State, 717 N.E.2d 32, 53 (Ind. 1999). Here, there is a reasonable possibility that

the jury used the same facts to find Demus guilty of both domestic battery and

battery “because the charging information was generic and the State did not

untangle the evidence. Each conviction was also enhanced by the same prior

conviction.” Appellee’s Br. p. 6 (internal citation omitted).3 Therefore, these

convictions violate the prohibition against double jeopardy.

[4] In some cases, we could ameliorate a double jeopardy violation by reducing one

of the convictions to a misdemeanor. But the State acknowledges that in this

case, even if we did so, Demus’s convictions “would still violate the common

law double jeopardy principles that survived Richardson.” Id. n.1 (citing

Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)); Guyton v. State, 771

N.E.2d 1141, 1143 (Ind. 2002). Therefore, one of Demus’s convictions must be

vacated altogether. Without the enhancements, battery is a Class B

misdemeanor and domestic battery is a Class A misdemeanor, so if the

enhancement were to be vacated on post-conviction review, battery would have

less severe penal consequences. Accordingly, we direct the trial court to vacate

3 The State notes that while Demus pleaded guilty to the enhancements, he did not waive his right to raise double jeopardy on appeal because he did not bargain for a benefit. Appellee’s Br. p. 6 (citing Crider v. State, 984 N.E.2d 618, 623-24 (Ind. 2013)).

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 3 of 4 Demus’s battery conviction and resentence him accordingly. See Richardson,

717 N.E.2d at 54-55 (noting that when faced with a double jeopardy violation,

we generally vacate the conviction with the less severe penal consequences).

[5] The judgment of the trial court is reversed in part and remanded with

instructions to vacate the battery conviction and resentence Demus accordingly.

Kirsch, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 4 of 4