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

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.
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