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Smith v. State

Court of Appeals of Indiana

July 17, 2019

Jesse L. Smith, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Vigo Superior Court The Honorable Sarah K. Mullican, Judge Trial Court Cause No. 84D03-1803-F3-929

          ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] Jesse Smith ("Smith") appeals his conviction for Level 6 felony criminal recklessness, [1] claiming that his convictions for Level 3 felony attempted aggravated battery and Level 6 felony criminal recklessness violate Indiana's Double Jeopardy Clause. Concluding that the actual evidence presented at trial supports separate convictions, we affirm Smith's conviction.

         [¶2] We affirm.

         Issue

         Whether Smith's convictions violate Indiana's double jeopardy prohibition.

         Facts

         [¶3] Smith and Orville Johnson ("Johnson") were both dating Smith's brother's estranged wife Roxanne Smith ("Roxanne"). On the night of March 16, 2018, Johnson and Smith planned to meet up and fight each other at a local Family Video store in Terre Haute. However, the two mistakenly traveled to different Family Video store locations. When they spoke on the phone trying to figure out where the other one was, Johnson called off the fight and told Smith that he was going to a McDonald's restaurant instead to get something to eat.

         [¶4] Johnson then went to a nearby McDonald's with some friends, including Jlee Betz ("Betz"). While at the McDonald's, Johnson spoke to Smith on the phone again, and the two men started arguing. Smith soon arrived at the McDonald's accompanied by Roxanne.

         [¶5] Once Johnson and his friends realized that Smith had come to the McDonald's, they stepped outside to confront him. By this time, Smith and Roxanne had entered the McDonald's drive-thru line. Johnson and his friends waited for Smith to finish at the drive-thru window, and then Betz walked up to Smith's truck. Smith pointed a gun at him and told him not to come any closer. As Betz turned around and retreated to the curb, he heard a gunshot and the squeal of Smith's vehicle tires behind him. Johnson heard Smith fire multiple gunshots.

         [¶6] Betz then turned back around to face Smith's truck. Betz pulled out his gun and fired twice at Smith. Smith sped his truck out of the parking lot onto Lafayette Street, drove away from the restaurant, and then made a U-turn so that he could return to the scene. Smith drove back by the McDonald's, aimed toward the building and fired his gun multiple times, shattering one of the McDonald's windows. As this happened, Betz tried to protect bystanders both in ...


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