Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 1 of 5

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

R. Thomas Lowe

Lowe Law Office

New Albany, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael Wayne Vest,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 25, 2019

Court of Appeals Case No.

18A-CR-2469

Appeal from the Clark Circuit 

Court

The Honorable Andrew Adams, 

Judge

Trial Court Cause No.

10C01-1702-F5-37

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 2 of 5

Case Summary

[1] In June of 2018, Michael Wayne Vest was convicted of, inter alia, Level 5 

felony robbery and Class A misdemeanor theft. Vest contends, and the State 

agrees, that his convictions violate the prohibition against double jeopardy 

pursuant to Article 1, Section 14 of the Indiana Constitution. We agree and 

vacate Vest’s theft conviction. 

Facts and Procedural History

[2] On February 4, 2017, Haley Beyl was sitting in her vehicle waiting for her shift 

at Logan’s Steakhouse in Clarksville to start when Vest opened her driver’s-side 

door and demanded that she “get out of the car.” Tr. Vol. II p. 110. Vest then 

stated, “I have a gun, get out of the car. I need your car.” Id. Vest eventually 

pulled Beyl from the vehicle and drove away. A few hours later, Beyl’s vehicle 

was discovered parked at a motel, and Vest was apprehended by police in 

possession of Beyl’s car keys and bank card.

[3] On February 7, 2017, the State charged Vest with Count I, Level 5 felony 

robbery; Count II, Level 6 felony auto theft; Count III, Level 6 felony unlawful 

possession of a syringe; and Count IV, Class A misdemeanor theft and alleged 

him to be a habitual offender. On June 5, 2018, a jury trial was held, and Vest 

was found guilty as charged and admitted to being a habitual offender. The trial 

court dismissed Count II, finding that it was a lesser-included offense of Count 

I. The trial court sentenced Vest on Count I to six years with two years 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 3 of 5

suspended to probation, on Count III to two-and-one-half years, on Count IV to 

one year, and six years on the habitual offender enhancement. The trial court 

further ordered that Counts I, III, and IV be served concurrently, for an

aggregate sentence of twelve years of incarceration with two of those years 

suspended to probation. 

Discussion and Decision

[4] Vest contends, and the State agrees, that his convictions for Level 5 felony 

robbery and Class A misdemeanor theft violate the prohibition against double 

jeopardy. Whether convictions violate double jeopardy is a question of law 

which we review de novo. Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 

2012).

Article 1, Section 14 of the Indiana Constitution provides that 

[n]o person shall be put in jeopardy twice for the same offense. In 

Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our Supreme 

Court concluded that two or more offenses are the same offense 

in violation of Article 1, Section 14 if, with respect to either the 

statutory elements of the challenged crimes or the actual evidence 

used to obtain convictions, the essential elements of one 

challenged offense also establish the essential elements of another 

challenged offense. 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. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 4 of 5

Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (internal citations 

and quotations omitted). “Application of the actual evidence test requires the 

reviewing court to identify the essential elements of each of the challenged 

crimes and to evaluate the evidence from the jury’s perspective, considering 

where relevant the jury instructions, argument of counsel, and other factors that 

may have guided the jury’s determination.” Spivey v. State, 761 N.E.2d 831, 832

(Ind. 2002).

[5] We agree with both Vest and the State that his convictions violate the 

prohibition against double jeopardy. During closing argument, the prosecutor 

stated that 

the list goes on and on of situations where, when you commit an 

act, you might be in violation of different statutes. And there are 

a variety of legal reasons for doing this that I won’t go into now, 

but it’s common for Prosecutors to charge the different statutes 

that are violated. And that’s what’s been done in this case. 

Essentially, there was a robbery of her, her car and what was in it 

and that’s the first Count. And then this auto theft and this theft 

are alternative Counts that are also statutes that were violated 

when this happened. And what will happen, as a matter of law, is 

I, as a Prosecutor, will say, yes, this conduct violated all of these 

statutes, so please come back and convict on each of those. 

When you go to the jury room, please find him guilty of each. 

Because, as a matter of law, what will happen is when the Judge 

comes time to sentence him and enter convictions, he will only 

enter convictions on the most highest on that Count and not the 

other two (2), if you convict on them. And so, it’s not like he’s 

going to get sentenced and convicted on multiple things based on 

the same incident ultimately. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2469| June 25, 2019 Page 5 of 5

Tr. Vol. II pp. 221–22. Given the prosecutor’s closing argument, we agree with 

the parties that there is a reasonable possibility that the evidentiary facts used by 

the fact-finder to establish the essential elements of robbery were also used to 

establish the essential elements of theft. 

[6] Vest’s conviction for Class A misdemeanor theft is vacated.

Crone, J., and Tavitas, J., concur.