FILED
Oct 02 2020, 8:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Geovany Diaz, October 2, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-203
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Shatrese M. Flowers, Judge
Trial Court Cause No.
49G02-1812-MR-042357
Vaidik, Judge.
Case Summary
[1] Geovany Diaz shot two men during a robbery. One victim died, the other
survived. Diaz was convicted of murder and Level 5 felony robbery with regard
to the deceased victim and Level 2 felony robbery resulting in serious bodily
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injury with regard to the surviving victim. He appeals his conviction for Level 5
felony robbery, arguing that it constitutes double jeopardy in light of his
conviction for murder. After Diaz filed his brief on appeal, our Supreme Court
decided Wadle v. State, in which it established a new framework for analyzing
double-jeopardy claims like the one made by Diaz. We find no double jeopardy
under either pre-Wadle law or the Wadle analysis and therefore affirm Diaz’s
convictions. We also affirm Diaz’s sentence of seventy-eight years in prison.
Facts and Procedural History
[2] The evidence most favorable to the State can be summarized as follows. On
November 30, 2018, Dejon Wooden posted a video on Instagram showing
Xanax pills that his friend Jesse Harris wanted to sell. Diaz, who knew
Wooden, sent him a message that he wanted to buy the pills. Wooden and
Harris went to Diaz’s apartment complex to complete the sale. Wooden was in
the driver’s seat, Harris was in the front passenger seat, and Diaz got into the
passenger-side back seat, behind Harris. After seeing the pills, Diaz said he
wanted to buy them and started counting his money. However, he then pointed
a handgun at Wooden and told him to “come off everything,” which Wooden
took to mean that Diaz “wanted all the pills and everything.” Tr. Vol. II p. 122.
Wooden grabbed Diaz’s arm that was holding the gun and pushed it down. In
doing so, Wooden was shot in the right shoulder. He opened his door and got
on the ground. Inside the car, Diaz shot Harris multiple times, killing him, and
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took his wallet and phone. He also took Wooden’s wallet and phone, as well as
the pills, and told Wooden to leave. Diaz was arrested shortly thereafter.
[3] The State filed six charges against Diaz: murder (knowingly killing Harris);
felony murder (killing Harris while committing robbery); Level 2 felony robbery
of Harris (elevated from a Level 5 felony because it resulted in serious bodily
injury); Level 2 felony robbery of Wooden (elevated from a Level 5 felony
because it resulted in serious bodily injury); Level 3 felony robbery of Wooden
(elevated from a Level 5 felony because Diaz was armed with a deadly
weapon); and Level 5 felony battery of Wooden (elevated from a Class B
misdemeanor because it was committed with a deadly weapon). The case
proceeded to a jury trial, and the jury found Diaz guilty on all six counts.
However, due to double-jeopardy concerns, the trial court entered only three
convictions: murder, Level 5 felony robbery of Harris (reduced from a Level 2
felony because Harris’s death supported both the serious-bodily-injury
enhancement and the murder charge), and, with regard to Wooden, Level 2
felony robbery resulting in serious bodily injury.
[4] In sentencing Diaz, the court found four aggravating circumstances: (1) Diaz’s
criminal history (four drug-related Level 6 felony convictions in 2017 and 2018,
a misdemeanor conviction for possession of marijuana, and a juvenile
adjudication for theft); (2) the fact that Diaz was serving community-corrections
sentences for prior convictions when he committed these offenses, which the
court found to be a “substantial aggravator”; (3) “the nature and the
circumstances of this offense”; and (4) the IRAS assessment indicated that Diaz
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presents a high risk of re-offending. Tr. Vol. IV p. 66. The court also found two
mitigating circumstances: Diaz has a substance-abuse problem and “a
prolonged period of incarceration would be an undue hardship on [Diaz’s]
dependents and his family.” Id. at 65-66. Finding that the aggravators outweigh
the mitigators, the court imposed an above-advisory sentence for each count:
fifty-eight years for the murder of Harris, five years for the Level 5 felony
robbery of Harris, and twenty years for the Level 2 felony robbery of Wooden.
The court ordered the two sentences relating to Harris to run concurrent to each
other but consecutive to the sentence relating to Wooden, for a total sentence of
seventy-eight years.
[5] Diaz now appeals.
Discussion and Decision
I. Double Jeopardy
[6] Diaz first contends that his convictions for both the murder and Level 5 felony
robbery of Harris constitute double jeopardy because his acts “occurred over the
course of a few very brief moments” and were really “one action.” Appellant’s
Br. p. 13. He argues that the convictions violate the double-jeopardy clause of
the Indiana Constitution under the actual-evidence test established by our
Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Alternatively,
he asserts that the two convictions are impermissible under the common-law
continuous-crime doctrine.
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[7] A few weeks after Diaz filed his brief, our Supreme Court issued two opinions
that significantly altered the approach to claims of double jeopardy that, as
here, are based on multiple convictions in a single prosecution. See Wadle v.
State, 151 N.E.3d 227 (Ind. 2020); Powell v. State, 151 N.E.3d 256 (Ind. 2020).
The Court distinguished these claims of “substantive double jeopardy” from
claims of “procedural double jeopardy”—where a defendant is charged with the
same offense in successive prosecutions. Previously, claims of substantive
double jeopardy could be made under constitutional tests established in
Richardson (including the actual-evidence test) or under a variety of statutory
and common-law rules (including the continuous-crime doctrine). In Wadle and
Powell, however, the Court did away with the existing rules and tests for claims
of substantive double jeopardy and set forth new tests for such claims, with a
focus on statutory interpretation. See Wadle, 151 N.E.3d at 247 (“[W]e now
proceed to articulate an analytical framework in which to resolve claims of
substantive double jeopardy.”); Powell, 151 N.E.3d at 263-65.
[8] Having reviewed Diaz’s convictions under both the old law and the new law,
we see no double-jeopardy violation under either. We reiterate that Wadle did
away with the “old law” on claims of substantive double jeopardy, including
the Richardson constitutional tests and all common-law rules like the
continuous-crime doctrine. We address pre-Wadle law here only because there
are outstanding questions about whether Wadle should be applied retroactively.
Our conclusion that there is no double jeopardy in this case under either Wadle
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or the “old law” allows us to avoid that potentially sticky issue, which has not
been briefed here.
A. Pre-Wadle law
[9] Diaz’s convictions for the murder and Level 5 felony robbery of Harris do not
violate the actual-evidence test or the continuous-crime doctrine.
[10] Under the actual-evidence test, the defendant must demonstrate “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, 717 N.E.2d at
53. No such possibility exists here. The murder conviction was based on the
evidence that Diaz killed Harris. That evidence, alone, could not have been
used to find Diaz guilty of robbery, since robbery requires the taking of
property. See Ind. Code § 35-42-5-1. Likewise, the robbery conviction was based
on the evidence that Diaz took property from Harris by using force. That
evidence, alone, could not have been used to find Diaz guilty of murder, since
murder requires a killing, i.e., death. See Ind. Code § 35-42-1-1. The actual-
evidence test is not violated when “each conviction required proof of at least
one unique evidentiary fact.” Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002);
see also Carrico v. State, 775 N.E.2d 312, 314 (Ind. 2002) (finding that defendant’s
convictions for murder and robbery did not violate the actual-evidence test
because the defendant’s killing of the victim by shooting him “established one
element of robbery (force) but not all”).
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[11] Diaz’s argument under the continuous-crime doctrine also fails. The doctrine
defines those instances where a continuous course of conduct amounts only to a
single chargeable crime. Hines v. State, 30 N.E.2d 1216, 1219 (Ind. 2015). It does
not seek to reconcile the double-jeopardy implications of two distinct
chargeable crimes. Id. It is implicated only where the defendant is convicted of
(1) multiple counts of the same statutory offense (e.g., multiple counts of
battery) or (2) an offense and an included offense, i.e., “a crime for which all of
the elements necessary to impose criminal liability are also elements found in”
the other crime. Id. at 1220-21. Here, Diaz was not convicted of multiple counts
of murder or multiple counts of robbery with regard to Harris, and each offense
requires an element the other does not (murder requires a killing, robbery
requires the taking of property). Murder and robbery are two distinct chargeable
crimes to which the continuous-crime doctrine does not apply.1
B. Wadle analysis
[12] Wadle established the new double-jeopardy framework to be applied when, as
here, “a single criminal act or transaction violates multiple statutes with
common elements.” 151 N.E.3d at 247. (Powell, on the other hand, established
the framework to be applied “when a single criminal act or transaction violates
1
Diaz also cites the “very same act” rule, which prohibits “[c]onviction and punishment for a crime which
consists of the very same act as another crime for which the defendant has been convicted and punished.”
Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). However, he doesn’t develop an argument under the rule.
See Appellant’s Br. p. 12. Therefore, he waived any such claim. See Ind. Appellate Rule 46(A)(8)(a) (“The
argument must contain the contentions of the appellant on the issues presented, supported by cogent
reasoning.”). Waiver notwithstanding, Diaz’s robbery conviction could not have been based on the “very
same act” as his murder conviction, since the robbery conviction required the taking of property.
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a single statute and results in multiple injuries.” 151 N.E.3d at 263.) The Court
summarized the test as follows:
[W]hen multiple convictions for a single act or transaction
implicate two or more statutes, we first look to the statutes
themselves. If either statute clearly permits multiple punishment,
whether expressly or by unmistakable implication, the court’s
inquiry comes to an end and there is no violation of substantive
double jeopardy. But if the statutory language is not clear, then a
court must apply our included-offense statutes to determine
whether the charged offenses are the same. See [Ind. Code] § 35-
31.5-2-168. If neither offense is included in the other (either
inherently or as charged), there is no violation of double
jeopardy. But if one offense is included in the other (either
inherently or as charged), then the court must examine the facts
underlying those offenses, as presented in the charging
instrument and as adduced at trial. If, based on these facts, the
defendant’s actions were “so compressed in terms of time, place,
singleness of purpose, and continuity of action as to constitute a
single transaction,” then the prosecutor may charge the offenses
as alternative sanctions only. But if the defendant’s actions prove
otherwise, a court may convict on each charged offense.
Wadle, 151 N.E.3d at 253.
[13] Applying the test here, we first observe that neither the murder statute nor the
robbery statute clearly permits (or prohibits) multiple punishment for the
murder and robbery of the same victim. The murder statute simply provides
that “[a] person who: knowingly or intentionally kills another human being . . .
commits murder, a felony.” I.C. § 35-42-1-1(1). The robbery statute provides
that “[a] person who knowingly or intentionally takes property from another
person or from the presence of another person: (1) by using or threatening the
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use of force on any person; or (2) by putting any person in fear; commits
robbery, a Level 5 felony.” I.C. § 35-42-5-1.
[14] Therefore, we move to the second step of the test: determining whether either
offense is included in the other (“either inherently or as charged”) under the
included-offense statute, Indiana Code section 35-31.5-2-168. If not, there can
be no double jeopardy.
[15] Section 35-31.5-2-168 defines “included offense” as an offense that:
(1) is established by proof of the same material elements or less
than all the material elements required to establish the
commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or
public interest, or a lesser kind of culpability, is required to
establish its commission.
I.C. § 35-31.5-2-168. Subsection (1) is not implicated here. Murder is not
established by proof of Level 5 felony robbery because murder requires a killing
and Level 5 felony robbery does not. Likewise, Level 5 felony robbery is not
established by proof of murder because robbery requires the taking of property
and murder does not. Subsection (2) does not apply either, because Diaz was
not charged with or convicted of any attempt crime. And subsection (3) does
not apply because murder and Level 5 felony robbery differ in more respects
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than just the degree of harm or culpability required. As just noted, each offense
requires some conduct the other does not (i.e., murder requires a killing, Level 5
felony robbery requires the taking of property).
[16] Because neither murder nor Level 5 felony robbery is included in the other,
Diaz’s convictions do not constitute double jeopardy under Wadle, and there is
no need to further examine the specific facts of the case under the third step of
the test.
II. Sentence
[17] Diaz also argues that the trial court should have found his age to be a mitigating
factor and that, in any event, his total sentence of seventy-eight years is
inappropriate.
A. Age as a mitigator
[18] We first address Diaz’s argument that his age—twenty-one at the time of the
offenses, twenty-two at the time of sentencing—is a mitigating factor. “Our trial
courts enjoy broad discretion in identifying aggravating and mitigating factors,
and we will reverse only for an abuse of that discretion.” McCoy v. State, 96
N.E.3d 95, 99 (Ind. Ct. App. 2018).
[19] Diaz’s contention is that people in his age range “have a unique opportunity
and incentive to rehabilitate themselves during their time in DOC.” Appellant’s
Br. p. 15. As the State notes, however, “In three short years since becoming a
legal adult, [Diaz] has obtained four felony convictions, had the opportunity to
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be on probation which was revoked, had the opportunity to be on home
detention, which [Diaz] violated, and committed the most serious crime with
one of the highest penalties in the State of Indiana.” Appellee’s Br. p. 22. Given
that history, we cannot say that the trial court abused its discretion by not
finding Diaz’s age to be a mitigator.2
B. Inappropriateness
[20] Diaz also argues that his seventy-eight-year sentence is inappropriate and asks
us to revise it under Indiana Appellate Rule 7(B), which provides that an
appellate court “may revise a sentence authorized by statute if, after due
consideration of the trial court's decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” “Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
2
In addition to his age, Diaz asserts that “[e]vidence provided established that [he] was uniquely
remorseful.” Appellant’s Br. p. 15. He does not develop this argument any further or cite anything in the
record to support it. As such, it is waived. See App. R. 46(A)(8)(a) (“The argument must contain the
contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be
supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied
on, in accordance with Rule 22.”).
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persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016).
[21] For the murder of Harris, Diaz faced a sentencing range of forty-five to sixty-
five years, with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3.
The trial court imposed an above-advisory term of fifty-eight years. For the
Level 5 felony robbery of Harris, Diaz faced a sentencing range of one to six
years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). The
court imposed an above-advisory term of five years but ordered it to run
concurrent to the murder sentence. For the Level 2 felony robbery of Wooden,
Diaz faced a sentencing range of ten to thirty years, with an advisory sentence
of seventeen-and-a-half years. Ind. Code § 35-50-2-4.5. The court imposed an
above-advisory term of twenty years, to run consecutive to the fifty-eight-year
sentence for murder.
[22] Diaz’s argument focuses on the nature of his offenses:
[T]he facts of the case demonstrate that the death of Jesse Harris
was not planned. Viewed in a light most unfavorable to Diaz, the
facts suggest that this was a poorly planned robbery gone horribly
wrong. While the death of an individual is not entirely
unforeseeable when guns enter into a drug deal involving large
sums of money, no evidence indicates that the death [of] either
Harris or [Wooden] was the intent or purpose of Diaz. Diaz had
no reason to seek to kill Jesse Harris. It was only when, again
when taken in a light most unfavorable to Diaz, Harris and
[Wooden] began to fight back that shots were fired and Harris
was killed.
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Appellant’s Br. pp. 14-15. He makes no mention whatsoever of his criminal
history, which includes four felony convictions in the two years before these
offenses, or of the fact that he was actively serving community-corrections
sentences for those convictions when he committed these offenses. The trial
court properly found the latter to be a “substantial aggravator.” This history
reflects poorly on Diaz’s character and supports the above-advisory sentences
imposed by the trial court, even if the nature of the offenses does not.
Moreover, the existence of multiple victims supports the imposition of
consecutive sentences. See Myers v. State, 27 N.E.3d 1069, 1082 (Ind. 2015),
reh’g denied. Diaz has failed to convince us that his sentence is inappropriate.
[23] Affirmed.
Bailey, J., and Weissmann, J., concur.
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