Trey A. Smith, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Bartholomew Superior Court The Honorable James D.
Worton, Judge Trial Court Cause No. 03D01-1712-F6-6683
Attorney for Appellant Michael P. DeArmitt Columbus, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Jesse R. Drum Laura R. Anderson Deputy Attorneys
General Indianapolis, Indiana
of the Case
Trey Smith appeals his convictions for theft, as a Level 6
felony, and criminal mischief, as a Class B misdemeanor,
following a jury trial. Smith presents a single issue for our
review, namely, whether the trial court abused its discretion
when it admitted certain testimony over his objections. We
also address a second issue sua sponte, namely,
whether Smith's convictions violate his right to be free
from double jeopardy. We affirm in part, reverse in part, and
remand with instructions.
and Procedural History
On December 6, 2017, at approximately 8:20 p.m., Melissa
Shafer left her office and walked out to the parking lot,
where she found a man lying on the ground next to her car.
Shafer asked the man what he was doing, but he did not reply.
She asked him a second time, and he responded, "Let me
get out of your way." Tr. at 25. Shafer then saw the man
pull up a tarp and gather some tools, and he ran past her
toward the office building and out of sight. Shafer got in
her car and started the engine. She immediately noticed that
the engine was "very loud" and she "knew the
mechanics had been messed with." Id. at 27.
Accordingly, she promptly called 9-1-1 and gave a description
of the man she had seen next to her car. She saw that the man
was wearing "dark colored or black pants and a black zip
up hoodie with white lettering on the back of it."
Id. at 34. A police officer arrived at the scene
within three to five minutes and found that the catalytic
converter on Shafer's car had been cut and was
"hanging down and touching the ground."
Id. at 51.
Within three minutes of hearing the suspect's description
over his radio, Officer Ron May of the Columbus Police
Department, who was patrolling in the area, saw a man fitting
the suspect's description "jogging across the road
in a southeasterly direction" near the intersection of
U.S. 31 and Washington Street. Id. at 39. Officer
May saw the man near a Village Pantry, but he lost sight of
him. Officer May soon saw the man again walking to the south
of a nearby building. Officer May then stopped and talked to
the man, who identified himself as Smith.
Officer May asked Smith "where he was coming from,"
and Smith replied that he had just been at Chris
Chaplin's residence at 3220 Washington Street.
Id. at 43. While Officer May was talking to Smith,
Officer Tony Kummer, who had responded to the scene at
Shafer's office parking lot, drove Shafer to the location
where Officer May and another officer were talking to Smith.
Shafer identified Smith as the man she had seen next to her
car. Officers arrested Smith. At some point, Officer May went
to the residence at 3220 Washington Street and talked to the
owner, who stated that he did not know Smith.
The State charged Smith with attempted theft, as a Level 6
felony, and criminal mischief, as a Class B misdemeanor. At
Smith's ensuing jury trial, Officer May testified in
relevant part that he had found no one at the residence at
3220 Washington Street who knew Smith, and Smith timely
objected to that testimony on hearsay grounds. The trial
court permitted the testimony over Smith's objections.
The jury found him guilty as charged, and the trial court
entered judgment of conviction and sentenced him accordingly.
This appeal ensued.
Smith contends that the trial court abused its discretion
when it admitted Officer's May's testimony as
evidence over Smith's hearsay objections. We review a
trial court's evidentiary rulings "for an abuse of
discretion." Snow v. State, 77 N.E.3d 173, 176
(Ind. 2017). "An abuse of discretion occurs when the