Court of Appeals of Indiana | Memorandum Decision 19A

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### 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.
A TTORNEY FOR A PPELLANT Scott King King Brown & Murdaugh LLC Merrillville, Indiana A TTORNEY S FOR A PPELLEE 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 1 3 , 2020 Court of Appeals Ca se No. 19A

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- 1525 Appeal from the Lake Superior Court The Honorable Salvador Vasquez, Judge Trial Court Cause No. 45G01

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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 hisCourt of Appeals of Indiana | Memorandum Decision 19A

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convictions violate his right against doubl e jeopardy. Concludi ng that Smith’s rights were not violated, w e affirm.

[2] The pertinent facts of th is case can be summarized as f ollows: Smith was at the residence of his friend s Davon and Davion Snow. At some point after Smith’s arrival, Davon told him to leave and e s corted 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, t he 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 weap on , a Level 5 felony; and criminal recklessness, a Level 5 felony. 3 A jury found Smith guilty as charged o n all four counts

. T he cour t 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

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- 1.5 ( 2014)

. 2 Ind. Code § 35

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- 1 (201 6 )

. 3 Ind. Code § 35

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[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 i f, 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 , 71 7 N.E.2d 32 (Ind. 1999) . In th is case, Smith claims a violation only under the actual evidence test , alleging that there was no evidence of a victim o ther than Davon

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[5] With regard to the actual evidence test, we examine the actual evidence presented at tr ial 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 possi bility 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 doub le 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. 20 02) . In applying the actualCourt of Appeals of Indiana | Memorandum Decision 19A

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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)

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[6] In th e 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 b odily me mber or organ

. Appellant’s App. Vol. 2, p. 214; see Ind. Code § 35

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. The State also alleged that Smith committed criminal recklessness by recklessly, knowingl y, or intentionally perform ing an act that created a substantial risk of bodily injury t o another person by shooting a firearm into an inhabited dwelling. Appellant’s App. Vol. 2, p. 214 ; see Ind. Code § 35

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. Further, t he charging information was included as a final instruction to the jury. Appellant’s App. Vol. 2, pp. 162

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[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 t he 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. OnceCourt of Appeals of Indiana | Memorandum Decision 19A

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Davon closed the do or, 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 c ause him problems. Investigation of the scene revealed three bullet holes in the door, and one bul let was recovered from Davon’s thigh.

[8] T he 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 creat ing a substantial risk of bodily injury to other pe ople by shooting into an occupi ed 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 substanti al 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, a lthough the evidence showed that at least one of the shots hit Davon , th e r emain der created risk of injury to the other people occupying the dwelling

. Th us , th e 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

an d 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 se parate victims

— Smith’s actCourt of Appeals of Indiana | Memorandum Decision 19A

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inflicted significant injury on Davon, and it also created a substantial risk of injury to anyone in the house.

[9] S mith raises the additional argument that his convictions violate the “very same act” test

. I n addition to the constitutional test prescribe d 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 constitutio nal test set forth in Richardson .” Guyton v. State , 771 N.E.2d 1141, 1143 (Ind. 2002)

. O ne such rule o ur 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)

. T he 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 jeopard y vi o lation has occurred under the very same act test. Bradley , 113 N.E.3d 742

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[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. A s w e explained in our discussion of the actual evidence test, there were multiple shots fired with different victims. At le ast one of the shots fired hit Davon, causing him serious injury andCourt of Appeals of Indiana | Memorandum Decision 19A

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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 victi ms, 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. 20 19 ) ( 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

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[11] Judgment affirmed.
Bradford, C.J., and Vaidik, J., concur.