George Landy, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
Court of Appeals Case No. 49A02-1704-CR-769
COURT OF APPEALS OF INDIANA
November 9, 2017
Appeal from the Marion Superior Court, The Honorable Barbara Cook Crawford, Judge, Trial Court Cause No. 49G09-1606-F6-23235
Altice, Judge.
Pursuant to
ATTORNEY FOR APPELLANT
Kimberly A. Jackson
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
Case Summary
[2] We affirm in part, reverse in part, and remand.
Facts & Procedural History
[3] On June 12, 2016, David Chic reported stolen his 2005 BMW, which he had purchased earlier that year for $13,000. Indianapolis Metropolitan Police Officer Albert Teaters was on patrol around 1:30 a.m. on June 14, 2016, when he encountered the BMW heading northbound near the intersection of Dr. Martin Luther King, Jr. Street and 21st Street. Landy was driving the BMW.
[4] After checking the plate and discovering that the vehicle had been reported stolen, Officer Teaters radioed for backup while following the BMW. The BMW began accelerating and made a right turn onto Fall Creek Boulevard. It then abruptly turned left onto Paris Avenue and accelerated to over eighty miles per hour. Officer Teaters activated his lights and sirens, but the BMW continued at a high rate of speed for several blocks without slowing at stop signs. The BMW then careened off the road as Paris Avenue ended at 28th Street. It then violently struck two parked vehicles and pushed them toward
[5] Within seconds of the collision, Officer Teaters parked and exited his patrol car. Landy then opened the driver‘s side door of the BMW and ran from the scene. Officer Teaters chased Landy while ordering him to stop. He eventually tased Landy to gain control of him in a dark alley.
[6] Landy was arrested and charged with the eight counts: Count I, Level 6 felony resisting law enforcement; Count II, Class A misdemeanor resisting law enforcement; Counts III through V, Class A misdemeanor criminal mischief; Counts VI and VII, Class B misdemeanor leaving the scene of an accident; and Count VIII, Class B misdemeanor unauthorized entry of a motor vehicle. At his jury trial on December 7, 2016, the jury found him guilty as charged. That same day, the trial court entered judgments of conviction on all eight counts.
[7] The sentencing hearing took place on March 13, 2017, at which the trial court vacated the conviction on Count IV “based on Double Jeopardy“. Transcript Vol. 2 at 149. The trial court observed (incorrectly) that Count VII had been dismissed prior to trial.2 The sentencing order, however, is ambiguous with respect to Count VII. It lists the disposition of Count VII twice, once as
Discussion & Decision
Double Jeopardy
[8] Landy argues that a number of his convictions violate principles of double jeopardy found in
[9] Under Indiana‘s Double Jeopardy Clause, a defendant may not be convicted of two offenses if with respect to the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Layman v. State, 42 N.E.3d 972, 980 n.7 (Ind. 2015). This analysis requires a consideration of whether the evidentiary facts used to establish the essential elements of one offense may also have been used to establish all of the essential elements of the second challenged offense. See Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002).
[11] With respect to his dual convictions for leaving the scene of an accident (Counts VI and VII), Landy contends that the same actual evidence was used to establish these counts. The State does not dispute this argument, and simply notes that Count VII was dismissed. As addressed above, it is not clear that Count VII was in fact dismissed. Further, conviction on both counts of leaving the scene of an accident clearly constitutes a double jeopardy violation because both counts were based on Landy‘s flight after the accident. It is of no moment that multiple cars were involved in the single accident. See Wood v. State, 999 N.E.2d 1054, 1065 (Ind. Ct. App. 2013) (defendant‘s three convictions for leaving the scene of an accident subjected him to double jeopardy, “as he was punished three times for an act - leaving the scene of an accident - he committed only once“), trans. denied. On remand, the trial court is directed to vacate the conviction and sentence on Count VII.
[12] We turn now to the convictions for resisting law enforcement. Landy was convicted of Level 6 felony resisting (Count I) based on his fleeing from Officer Teaters while driving a vehicle. He was also convicted of Class A misdemeanor
[13] Similarly, Landy challenges his two convictions for criminal mischief under the continuing crime doctrine. Counts III and V charged Landy with damaging the vehicles of Chic and Robinson, respectively. He notes that the damage to both vehicles was caused by the same collision.
[14] A person commits criminal mischief when that person “recklessly, knowingly, or intentionally damages...property of another person without the other person‘s consent“.
Sufficiency of the Evidence
[16] Landy challenges the sufficiency of the evidence with respect to Count V, criminal mischief involving Robinson‘s Volvo.3 He contends that his conviction should be reduced from a Class A misdemeanor to a Class B misdemeanor because the State failed to establish that his actions resulted in at least $750 in damages to Robinson‘s vehicle. See
[17] When we consider a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and
[18] The State offered photographic evidence of the damage to Robinson‘s vehicle. State‘s Exhibit 7 shows extensive damage to both driver‘s side doors of the Volvo station wagon. In the photograph, the frame of the driver‘s door is broken with a portion jutting in toward the driver‘s seat, the entire door is caved in, and the side mirror is broken off. The rear driver‘s side door is also smashed inward, and the vehicle is clearly not drivable. Landy acknowledged during his testimony that the picture evidenced “[v]ery significant” damage to the Volvo. Transcript Vol. 2 at 94. He also agreed with the State on cross examination that it would likely “cost more than [$750] to fix those cars“. Id.
[19] While the State did not present testimony establishing the precise amount of damage to the Volvo, we conclude that the photographic evidence, along with Landy‘s testimony, constituted sufficient evidence for the jury to determine that the damage caused was at least $750. Indeed, the damage depicted in the photograph is so significant as to permit a reasonable inference that the damage amount for the Class A misdemeanor offense has been established. Cf. Halsema v. State, 823 N.E.2d 668, 673-74 (Ind. 2005) (“jury may rely on its collective common sense and knowledge acquired through everyday experiences” and, thus, the quantity of a drug or controlled substance may be “so large as to permit a reasonable inference that the element of weight has been established“).
[20] On remand, the trial court is directed to vacate the convictions and sentences entered on Counts II and VII. Landy‘s convictions on Counts I, III, V, VI, and VIII stand.
[21] Judgment affirmed in part, reversed in part, and remanded.
Baker, J. and Bailey, J., concur.