MEMORANDUM DECISION FILED
Mar 22 2017, 10:32 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Billy Neeley, March 22, 2017
Appellant-Defendant, Court of Appeals Case No.
66A03-1608-CR-1933
v. Appeal from the Pulaski Superior
Court
State of Indiana, The Honorable Patrick
Appellee-Plaintiff. Blankenship, Judge
Trial Court Cause No.
66D01-1507-F6-65
Barnes, Judge.
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Case Summary
[1] Billy Neeley appeals his Level 6 felony convictions for domestic battery and
battery in the presence of a child. We reverse in part and affirm in part.
Issue
[2] Neeley raises one issue for our review, which is whether his convictions for
domestic battery and battery in the presence of a child violate the Indiana
Constitution’s prohibition against double jeopardy.
Facts
[3] Casey Carter has three children under the age of sixteen. Carter has known
Neeley for four or five years, and Neeley is the father of Carter’s two youngest
children. On July 14, 2015, Carter and Neeley lived together in Pulaski
County. Carter and Neeley were in their house with the three children when
they began arguing and yelling. Ultimately, Carter and Neeley were involved
in an altercation. Neeley hit Carter one time “with a closed fist, in an upper cut
motion,” and Carter suffered a cut to her chin that required medical attention at
the hospital. Tr. p. 174.
[4] The State charged Neeley with two Level 6 felonies—domestic battery and
domestic battery in the presence of a child. A jury found Neeley guilty of both
charges, and the trial court entered judgments of conviction on both counts. On
July 28, 2016, the trial court sentenced Neeley to twenty-four months executed
on each charge, and suspended twelve months of each sentence. The trial court
ordered Neeley to serve his sentences concurrently.
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Analysis
[5] Neeley contends his convictions violate the Indiana Constitution’s prohibition
against double jeopardy because “the charging instruments, the evidence at
trial, and the State’s opening and closing statements demonstrate that the one
hit to the chin was the basis” for both of his convictions. Appellant’s Br. p. 8.
Neeley asks us to vacate one of his convictions. The State “recognizes” that
Neeley’s convictions “may” violate double jeopardy principles. Appellee’s Br.
p. 7.
[6] The Double Jeopardy Clause of the Indiana Constitution provides that “[n]o
person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, §
14. “[T]wo or more offenses are the same offense in violation of article 1,
section 14 if, with respect to . . . the actual evidence used to obtain convictions,
the essential elements of one challenged offense also establish the essential
elements of another challenged offense.” Garrett v. State, 992 N.E.2d 710, 719
(Ind. Ct. App. 2013) (citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999)).
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. The actual evidence test is applied to
all the elements of both offenses. In other words . . . the Indiana
Double Jeopardy Clause is not violated when the evidentiary
facts establishing the essential elements of one offense also
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establish only one or even several, but not all, of the essential
elements of a second offense.
Id. (citing Richardson, 717 N.E.2d at 53, and Spivey v. State, 761 N.E.2d 831, 833
(Ind. 2002)) (quotations omitted) (alteration in Garrett).
[7] Here, the State charged Neeley with two crimes based on its allegation that
Neeley struck Carter one time. Similarly, the State presented evidence of only
one action by Neeley that resulted in an injury to Carter—striking Carter’s
chin.1 The State concedes “there is a reasonable possibility that the evidentiary
facts used by the jury to establish the essential elements of the domestic battery
may also have been used to establish the essential elements of the battery,” and
we agree. Appellee’s Br. p. 9.
[8] When two convictions are found to contravene double jeopardy
principles, a reviewing court may remedy the violation by
reducing either conviction to a less serious form of the same
offense if doing so will eliminate the violation. If it will not, one
of the convictions must be vacated. In the interest of efficient
judicial administration, the trial court need not undertake a full
sentencing reevaluation, but rather the reviewing court will make
this determination itself, being mindful of the penal consequences
that the trial court found appropriate.
1
We acknowledge that Carter testified, in addition to Neeley striking her, she and Neeley were “wrestling
around.” Tr. p. 164. Carter also testified she suffered an injury to the inside of her mouth, which the nurse
who treated her described as a “small puncture wound inside of her lower lip, that presumably may have
come from her teeth.” Id. at 164. Defense counsel characterized the injury to Carter’s mouth as a bitten lip.
See id. at 164. The record contains no evidence that Neeley injured Carter when they wrestled or that Neeley
inflicted the injury to the inside of Carter’s lip separately from inflicting the injury to Carter’s chin.
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Richardson, 717 N.E.2d at 54.
[9] Here, simply reducing one of Neeley’s convictions would not eliminate the
double jeopardy violation because any such reduced conviction would still
require proof Neeley struck Carter. Instead, we vacate Neeley’s conviction for
battery in the presence of a child.2 We affirm Neeley’s conviction and sentence
for domestic battery.
Conclusion
[10] There is a reasonable possibility that the jury used the same evidentiary facts to
establish the essential elements of Neeley’s convictions for both battery in the
presence of a child and domestic battery. As such, we vacate Neeley’s
conviction for battery in the presence of a child and affirm his conviction and
sentence for domestic battery. We reverse in part and affirm in part.
[11] Reversed in part; affirmed in part.
Kirsch, J., and Robb, J., concur.
2
The State requests that we vacate Neeley’s conviction for battery in the presence of a child. Neeley asks us
to “vacate on of his convictions” but does not specifically argue which one. Appellant’s Br. p. 9.
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