Billy Neeley v. State of Indiana (mem. dec.), 66A03-1608-CR-1933

On July 14, 2015, Billy Neeley and Casey Carter, who were cohabiting and have two children together, got into an altercation at home in Pulaski County.
Neeley struck Carter one time with a closed fist, causing a cut to her chin that required hospital treatment; evidence also showed a possible bitten/puncture injury to the inside of her lip but no separate act was attributed to that injury.
The State charged Neeley with two Level 6 felonies: domestic battery and battery in the presence of a child, based on the single incident.
A jury convicted Neeley of both offenses; the trial court entered judgments and imposed concurrent executed sentences of 24 months with 12 months suspended on each count.
Neeley appealed, arguing his two convictions violate the Indiana Constitution’s double jeopardy prohibition because the same single act (the one punch) was the evidentiary basis for both convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions for domestic battery and battery in presence of a child violate Indiana double jeopardy (actual evidence test)	State acknowledged convictions may violate double jeopardy and requested vacatur of child-presence conviction	Neeley argued the single blow was the basis for both convictions and asked that one conviction be vacated	Court held there was a reasonable possibility the jury used the same evidentiary facts for both convictions and vacated the battery-in-presence-of-a-child conviction; domestic battery conviction and sentence affirmed

Garrett v. State, 992 N.E.2d 710 (Ind. Ct. App. 2013) (describes and applies the actual evidence test for double jeopardy under Indiana Constitution)
Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (explains how to determine whether two offenses are the same for double jeopardy purposes and remedies)
Spivey v. State, 761 N.E.2d 831 (Ind. 2002) (clarifies application of the actual evidence test)