Appeal from the Vanderburgh Circuit Court. The Honorable David D. Kiely, Judge. Cause No. 82C01-1310-FA-1075.
ATTORNEY FOR APPELLANT: Matthew J. McGovern, Anderson, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, Indiana.
Najam, Judge. Baker, J., and Friedlander, J., concur.
Statement of the Case
[¶1] Justin Brewer appeals his convictions for auto theft, as a Class D felony, and resisting law enforcement, as a Class D felony, following a jury trial. Brewer raises a single issue for our review, namely, whether his convictions violate Indiana's statutory prohibition against double jeopardy when Brewer had been convicted in the Commonwealth of Kentucky for the same or similar conduct. We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[¶2] On September 7, 2013, Brewer stole Mohammed Alnasser's orange Dodge Challenger in Vanderburgh County. Alnasser immediately reported the theft to 9-1-1 and described Brewer. Shortly thereafter, Evansville Police Department Officer Shawn Chapman observed Brewer driving the Challenger, and Officer Chapman attempted to initiate a traffic stop. But Brewer " slammed the accelerator" and " took off." Tr. at 188. Officer Chapman pursued Brewer at high speed, but Officer Chapman's vehicle did not have " near as much horse power" as the Challenger. Id. at 189.
[¶3] Meanwhile, Officer Chris Keller of the Henderson County, Kentucky, Sheriff's office received a call from the Evansville Police Department that a stolen orange Challenger was " coming or getting ready to come into Henderson." Id. at 170. Officer Keller positioned his vehicle to intercept Brewer, but Brewer " cut through [a] . . . parking lot at a high rate of speed" and fled from Officer Keller. Id. at 171. Eventually, Brewer lost control of the Challenger and struck a utility pole. He then surrendered to Officer Keller.
[¶4] In January of 2014, Brewer pleaded guilty in a Henderson County, Kentucky, court to, in relevant part, " Receiving Stolen Property" by " knowingly and unlawfully possessing property . . . knowing the property was stolen." Appellant's App. at 36, 40. Brewer also pleaded guilty to " Fleeing/Evading the Police by knowingly and unlawfully operating a motor vehicle with the intent to elude or evade in a manner that created a substantial risk of serious injury or death to any person or property." Id. at 37, 40. Both of those convictions were entered as felony convictions under Kentucky law.
[¶5] On August 5, 2014, an Indiana jury found Brewer guilty of auto theft, as a Class D felony, and resisting law enforcement, as a Class D felony, based on his September 7, 2013, offenses. On September 5, Brewer requested that the trial court vacate the jury's verdicts pursuant to Indiana Code Section 35-41-4-5. The trial court denied ...