MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 18 2017, 9:30 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William D. Wyatt, Jr., April 18, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1609-CR-2219
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D03-1512-F3-3032
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, William Wyatt, Jr. was convicted of aggravated battery,
a Level 3 felony, and battery by means of a deadly weapon, a Level 5 felony.
On appeal, Wyatt raises the sole issue of whether his two convictions violate
the Double Jeopardy Clause of the Indiana Constitution. Concluding his
convictions violate the prohibition against double jeopardy, we affirm in part,
and reverse and remand in part.
Facts and Procedural History
[2] On December 5, 2015, Bradley Phillips was living at his friends’ apartment in
Terre Haute, Indiana. At approximately 9:00 p.m. that evening, Wyatt and his
cousin, Devon Lakin, stopped by to visit Phillips. The pair visited for about an
hour and then left the apartment.
[3] Around 11:30 p.m., Wyatt and Lakin returned to Phillips’ room. Phillips was
sitting on his bed watching television. As they entered the room, Lakin shut the
door and stood in front of it. Wyatt then asked Lakin “are you ready[?]”
Transcript, Volume II at 30. Wyatt walked toward Phillips, punched him in the
face, and began to talk about a girl named Ashley, who Phillips claimed he did
not know. Wyatt then grabbed two knives lying on a table, approached
Phillips, and punched him again. As Phillips attempted to flee, Wyatt stabbed
him in his chest. The knife pierced Phillips’ lung, causing it to collapse.
Phillips then ran to a neighbor’s house to seek help.
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[4] The State charged Wyatt with Count 1, aggravated battery, a Level 3 felony;
Count 2, battery by means of a deadly weapon, a Level 5 felony; and Count 3,
battery resulting in serious bodily injury, a Level 5 felony. The State also
sought an habitual offender enhancement. The jury found Wyatt guilty as
charged and the trial court entered judgment of conviction on all counts. At
sentencing, the trial court merged Count 3 into Count 1 and sentenced Wyatt to
thirteen years in the Indiana Department of Correction on that count, enhanced
by nine years based upon the jury’s finding Wyatt is an habitual offender. The
trial court sentenced Wyatt to four years on Count 2, to run concurrently with
Count 1. Wyatt’s aggregate sentence is twenty-two years. Wyatt now appeals.
Discussion and Decision
[5] Wyatt argues his convictions for Count 1, aggravated battery, and Count 2,
battery by means of a deadly weapon, violate the state constitutional
prohibition against double jeopardy. Specifically, he contends Phillips’
testimony, the State’s charging information, and the prosecutor’s closing
arguments created a reasonable possibility the jury used the same evidentiary
facts to convict him of each crime.
[6] Article 1, Section 14 of the Indiana Constitution provides, “No person shall be
put in jeopardy twice for the same offense.”
[T]wo or more offenses are the “same offense” in violation of
Article I, Section 14 of the Indiana Constitution, if, with respect
to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one
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challenged offense also establish the essential elements of another
challenged offense.
Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration in original) (quoting
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We review double jeopardy
claims de novo. Strong v. State, 29 N.E.3d 760, 766 (Ind. Ct. App. 2015).
[7] Wyatt contends his convictions for aggravated battery and battery by means of
a deadly weapon violate the actual evidence test.
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.
Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal
quotation marks omitted). In determining whether there is a reasonable
possibility the jury used the same evidentiary facts in convicting a defendant of
two separate crimes, we require substantially more than a logical possibility.
Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “We evaluate the evidence
from the jury’s perspective and may consider the charging information, jury
instructions, and arguments of counsel.” Garrett, 992 N.E.2d at 720.
[8] Here, the charging information for Counts 1 and 2 state,
Count 1:
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The undersigned, being duly sworn upon his/her oath, says that
on or about December 6, 2015, in Vigo County, State of Indiana,
William D. Wyatt, Jr. did knowingly or intentionally inflict
injury on Bradley S. Phillips Jr. that created a substantial risk of
death, in violation of I.C. 35-42-2-1.5.
Count 2:
The undersigned, being duly sworn upon his/her oath, says that
on December 6, 2015, in Vigo County, State of Indiana, William
D. Wyatt, Jr. did knowingly or intentionally touch Bradley S.
Phillips Jr. in a rude, insolent, or angry manner, to-wit: stabbed
Bradley S. Phillips Jr.; said touching being committed with a
deadly weapon, to-wit: a knife, in violation of I.C. 35-42-2-1(b)(1)
and I.C. 35-42-2-1(f)(2).
Appellant’s Appendix, Volume 2 at 15.
[9] As to closing arguments, the State argued the same evidentiary fact, the
stabbing of Phillips, in support of each count. The prosecutor stated,
Count One (1), [Wyatt] knowingly or intentionally, inflicted
injury on Bradley Phillips, and that injury created a substantial
risk of death. We know he’s the one that stabbed him. . . . We
know that he grabbed the knives, and he stabbed Bradley
Phillips. Did that injury create a substantial risk of death? . . .
Were they life threatening? Yes. . . . Count Two (2), [Wyatt]
knowingly or intentionally touched Bradley Phillips in a rude,
insolent, or angry manner, and the offense was committed with a
deadly weapon. He stabbed him with a knife folks. Can’t, can’t
get any easier than that for you guys.
Tr., Vol. II at 192-93.
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[10] We agree with Wyatt his convictions are in violation of double jeopardy
principles. Wyatt’s single act of stabbing Phillips is an essential element of both
aggravated battery and battery by means of a deadly weapon. The only battery
that created a “substantial risk of death” was Wyatt’s act of stabbing Phillips.
Ind. Code § 35-42-2-1.5.1 This same act is also an essential element of battery
by means of a deadly weapon, and the prosecutor argued that same act
supported both counts. Therefore, in light of the evidence presented to the jury,
the charging information, and the prosecutor’s closing argument, we conclude
there is a “reasonable possibility” the jury used the same fact to establish the
essential elements of both aggravated battery and battery by means of a deadly
weapon. See Stafford v. State, 736 N.E.2d 326, 331-32 (Ind. Ct. App. 2000)
(finding a double jeopardy violation because evidence of putting a rope around
the victim’s neck constituted the basis for both charges, namely battery with a
deadly weapon and criminal confinement “being armed with a deadly weapon,
to wit: a rope”), trans. denied.
[11] A reviewing court may remedy a double jeopardy 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.”
Richardson, 717 N.E.2d at 54 (citation omitted). Both the State and Wyatt agree
his conviction for battery by means of deadly weapon should be vacated. See
1
Although there was other evidence presented that Wyatt also punched Phillips in the face at least twice, the
State did not present evidence this battery caused a serious risk of death.
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Brief of Appellee at 10. Therefore, to remedy the double jeopardy violation, we
reverse Wyatt’s conviction for battery by means of deadly weapon.
Conclusion
[12] Wyatt’s convictions for aggravated battery and battery by means of a deadly
weapon violate the state constitutional prohibition against double jeopardy.
Accordingly, we reverse Wyatt’s conviction for battery by means of a deadly
weapon and remand to the trial court with instructions to vacate that
conviction.
[13] Affirmed in part, reversed and remanded in part.
Vaidik, C.J., and Bailey, J., concur.
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