Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Scott King

King Brown & Murdaugh LLC

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Marjorie Lawyer-Smith

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Garrett DaVarris Smith, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 13, 2020

Court of Appeals Case No.

19A-CR-1525

Appeal from the Lake Superior

Court

The Honorable Salvador Vasquez, 

Judge

Trial Court Cause No.

45G01-1612-MR-7

Friedlander, Senior Judge.

[1] Garrett DaVarris Smith, Jr. appeals his convictions of aggravated battery, a 

Level 3 felony, and criminal recklessness, a Level 5 felony, asserting that his 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020 Page 2 of 7

convictions violate his right against double jeopardy. Concluding that Smith’s 

rights were not violated, we affirm.

[2] The pertinent facts of this case can be summarized as follows: Smith was at the 

residence of his friends Davon and Davion Snow. At some point after Smith’s 

arrival, Davon told him to leave and escorted him to the door. Smith exited,

and Davon closed the door. Shots were then fired through the door, at least 

one of which struck Davon in his hand and leg.

[3] As a result of this incident, the State charged Smith with aggravated battery, a 

Level 3 felony;

1

battery causing serious bodily injury, a Level 5 felony;

2

battery

with a deadly weapon, a Level 5 felony; and criminal recklessness, a Level 5 

felony.3 A jury found Smith guilty as charged on all four counts. The court 

entered judgment on the aggravated battery, declined to enter judgment on the 

other two battery offenses, and reserved judgment until sentencing on the 

criminal recklessness offense. The court subsequently entered judgment on the 

criminal recklessness charge and sentenced Smith to an aggregate term of ten 

years on the two convictions. Smith now appeals his convictions claiming that 

the jury relied upon the same evidence in finding him guilty of aggravated 

battery as it did in finding him guilty of criminal recklessness.

1

Ind. Code § 35-42-2-1.5 (2014).

2

Ind. Code § 35-42-2-1 (2016).

3

Ind. Code § 35-42-2-2 (2014).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020 Page 3 of 7

[4] The Indiana Constitution provides in part that “[n]o person shall be put in 

jeopardy twice for the same offense.” IND. CONST. art. I, § 14. Two or more 

offenses are the same offense in violation of the double jeopardy clause 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 challenged offense also establish the essential elements of another 

challenged offense. Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In this case, 

Smith claims a violation only under the actual evidence test, alleging that there 

was no evidence of a victim other than Davon.

[5] With regard to 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. Id. To show that two challenged 

offenses constitute the same offense under the actual evidence test, a defendant 

must demonstrate a reasonable possibility that the evidentiary facts used by the 

factfinder to establish the essential elements of one offense may also have been 

used to establish the essential elements of a second offense. Id. A “reasonable 

possibility” requires “substantially more than a logical possibility” and involves 

a practical assessment of whether the factfinder “may have latched on to exactly 

the same facts for both convictions.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 

2008). Further, our State’s double jeopardy clause is not violated when the 

evidentiary facts establishing the essential elements of one offense also establish 

only one, or even several, but not all, of the essential elements of a second 

offense. Spivey v. State, 761 N.E.2d 831 (Ind. 2002). In applying the actual 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020 Page 4 of 7

evidence test, we evaluate the evidence from the factfinder’s perspective, and 

we may consider the charging information, jury instructions, and arguments of 

counsel. Newgent v. State, 897 N.E.2d 520 (Ind. Ct. App. 2008).

[6] In the second amended information, the State alleged that Smith committed 

aggravated battery by knowingly or intentionally inflicting injury on Davon that 

created a substantial risk of death or caused protracted loss or impairment of the 

function of a bodily member or organ. Appellant’s App. Vol. 2, p. 214; see Ind. 

Code § 35-42-2-1.5. The State also alleged that Smith committed criminal 

recklessness by recklessly, knowingly, or intentionally performing an act that 

created a substantial risk of bodily injury to another person by shooting a 

firearm into an inhabited dwelling. Appellant’s App. Vol. 2, p. 214; see Ind. 

Code § 35-42-2-2. Further, the charging information was included as a final 

instruction to the jury. Appellant’s App. Vol. 2, pp. 162-63.

[7] The evidence presented at trial showed that Smith and brothers Davon and 

Davion Snow were friends from school, and Smith often stayed at the Snow 

residence. On the evening of November 30 and into the early morning hours of 

December 1, 2016, Smith was at the Snow residence. Present in the residence 

at the time were Davon; Davion; their brother, Stacy Crouch; the boys’ mother; 

and Smith. Smith entered the house, fixed himself some food, and sat on the 

couch. Davion was playing a game on the computer. He overheard Davon 

and Smith exchange words, and, at some point, Davon told Smith that he was 

not allowed to remain at the home. As Smith got up to leave, he took his 

handgun from under the couch, and Davon escorted him to the door. Once
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Davon closed the door, several shots were fired through it. Davon was shot in 

his hand and leg, and both injuries required surgery. The injuries to Davon’s 

hand continue to cause him problems. Investigation of the scene revealed three 

bullet holes in the door, and one bullet was recovered from Davon’s thigh.

[8] The basis of the aggravated battery is Smith’s act of shooting Davon and 

causing him serious injury and impairment. In contrast, the basis of the 

criminal recklessness charge is Smith’s act of creating a substantial risk of bodily 

injury to other people by shooting into an occupied home. The charging 

information for criminal recklessness made no mention of Davon and was 

based on the act of shooting into the occupied dwelling, thus creating a 

substantial risk of injury to anyone who was inhabiting the dwelling at the time.

The evidence at trial was clear that, in addition to Davon, his brothers Davion

and Stacy and their mother were all present in the home at the time Smith fired 

the shots through the front door. Smith fired several shots, and, although the 

evidence showed that at least one of the shots hit Davon, the remainder created 

risk of injury to the other people occupying the dwelling. Thus, the convictions 

for the two offenses involve separate victims. See Rawson v. State, 865 N.E.2d 

1049 (Ind. Ct. App. 2007) (holding no double jeopardy violation because

convictions involved separate victims where conviction for attempted 

aggravated battery was based on defendant shooting at victim while victim fled 

and conviction for criminal recklessness was based on defendant shooting in 

direction of victim’s home), trans. denied. Consequently, there is no double 

jeopardy violation here because there were separate victims—Smith’s act 
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inflicted significant injury on Davon, and it also created a substantial risk of 

injury to anyone in the house.

[9] Smith raises the additional argument that his convictions violate the “very same 

act” test. In addition to the constitutional test prescribed in Richardson, the 

Indiana Supreme Court has “long adhered to a series of rules of statutory 

construction and common law that are often described as double jeopardy[ ] but 

are not governed by the constitutional test set forth in Richardson.” Guyton v. 

State, 771 N.E.2d 1141, 1143 (Ind. 2002). One such rule our supreme court has 

identified is the very same act test, which is distinct from the actual evidence 

test. Bradley v. State, 113 N.E.3d 742 (Ind. Ct. App. 2018), trans. denied (2019).

The very same act test applies “when the defendant’s ‘behavior’ underlying one 

offense is ‘coextensive with the behavior . . . necessary to establish an element 

of’ another offense.” Id. at 752 (quoting Taylor v. State, 101 N.E.3d 865, 872 

(Ind. Ct. App. 2018)). Although the “reasonable possibility” language is most 

commonly associated with the actual evidence test, see Lee, 892 N.E.2d at 1236, 

that language has also been used to determine whether a double jeopardy 

violation has occurred under the very same act test. Bradley, 113 N.E.3d 742.

[10] Smith contends that his convictions violate the very same act test because his 

act of shooting at the Snow home was the underlying behavior for both. The 

flaw in this argument is that Snow did not fire just one shot through the door of 

the Snow residence; he fired several shots. As we explained in our discussion of 

the actual evidence test, there were multiple shots fired with different victims. 

At least one of the shots fired hit Davon, causing him serious injury and 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1525 | April 13, 2020 Page 7 of 7

impairment. The remaining shots fired into the home caused substantial risk of 

injury to the remaining occupants, other than Davon. Thus, there were 

different shots with different victims, and, as such, there is not a reasonable 

possibility that Snow’s behavior underlying his aggravated battery conviction 

formed the evidentiary basis underlying his criminal recklessness conviction. 

See Wilcoxson v. State, 132 N.E.3d 27 (Ind. Ct. App. 2019) (rejecting argument 

that two attempted murder convictions violated very same act test where, in 

addition to firing one shot that went through window, defendant also fired 

fifteen other shots), trans. denied.

[11] Judgment affirmed.

Bradford, C.J., and Vaidik, J., concur.