Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 1 of 4

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

Megan Shipley

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sylvester Demus,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 7, 2018

Court of Appeals Case No.

49A04-1709-CR-2002

Appeal from the Marion Superior 

Court

The Honorable Jeffrey L. Marchal, 

Magistrate

Trial Court Cause No.

49G06-1610-F5-39427

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 2 of 4

[1] Sylvester Demus appeals his convictions for Level 5 Felony Domestic Battery1

and Level 5 Felony Battery,2 arguing that the convictions violate the prohibition 

against double jeopardy. The State concedes the issue, and we agree. We 

reverse in part and remand with instructions to vacate Demus’s Level 5 Felony

Battery conviction and resentence accordingly.

[2] On September 30, 2016, Demus hit his wife with an object, pushed her onto 

their bed, pinned her down, and threatened to kill her. The State filed eight 

criminal charges against Demus, including intimidation, domestic battery, and 

battery. The battery and domestic battery convictions were both enhanced to 

Level 5 felonies based on the same prior conviction. Furthermore, the State 

concedes that it “did not distinguish the facts that supported the domestic 

battery from the facts that supported the battery in its closing arguments.” 

Appellee’s Br. p. 5. After a jury trial, the jury hung on several counts but found 

Demus guilty of Level 6 felony domestic battery, Level 6 felony battery, and 

Level 6 felony intimidation; Demus then pleaded guilty to the enhancements of 

the domestic battery and battery counts, raising them both to Level 5 felonies. 

On August 3, 2017, the trial court sentenced Demus to concurrent sentences of 

545 days for each of the three convictions. Demus now appeals.

 

1

Ind. Code § 35-42-2-1.3.

2

I.C. § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 3 of 4

[3] Two convictions violate the double jeopardy clause of the Indiana Constitution 

if there is “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 challenged offense.” Richardson v. 

State, 717 N.E.2d 32, 53 (Ind. 1999). Here, there is a reasonable possibility that 

the jury used the same facts to find Demus guilty of both domestic battery and 

battery “because the charging information was generic and the State did not 

untangle the evidence. Each conviction was also enhanced by the same prior 

conviction.” Appellee’s Br. p. 6 (internal citation omitted).3 Therefore, these 

convictions violate the prohibition against double jeopardy.

[4] In some cases, we could ameliorate a double jeopardy violation by reducing one 

of the convictions to a misdemeanor. But the State acknowledges that in this 

case, even if we did so, Demus’s convictions “would still violate the common 

law double jeopardy principles that survived Richardson.” Id. n.1 (citing 

Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)); Guyton v. State, 771 

N.E.2d 1141, 1143 (Ind. 2002). Therefore, one of Demus’s convictions must be 

vacated altogether. Without the enhancements, battery is a Class B 

misdemeanor and domestic battery is a Class A misdemeanor, so if the 

enhancement were to be vacated on post-conviction review, battery would have 

less severe penal consequences. Accordingly, we direct the trial court to vacate 

 

3 The State notes that while Demus pleaded guilty to the enhancements, he did not waive his right to raise 

double jeopardy on appeal because he did not bargain for a benefit. Appellee’s Br. p. 6 (citing Crider v. State, 

984 N.E.2d 618, 623-24 (Ind. 2013)).
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2002 | March 7, 2018 Page 4 of 4

Demus’s battery conviction and resentence him accordingly. See Richardson, 

717 N.E.2d at 54-55 (noting that when faced with a double jeopardy violation, 

we generally vacate the conviction with the less severe penal consequences).

[5] The judgment of the trial court is reversed in part and remanded with 

instructions to vacate the battery conviction and resentence Demus accordingly.

Kirsch, J., and Bradford, J., concur.