Michael Wayne Vest v. State of Indiana (mem. dec.) ( 2019 )

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