Najam, J.
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Statement of the Case
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
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[Ed.: Brewer stole a car in Vanderburgh County, then evaded Evansville police in a high-speed chase. He crossed into Kentucky, where he surrendered after crashing while attempting to evade authorities there.]
In January of 2014, Brewer pleaded guilty in a Henderson County, Kentucky, court to, in relevant part, “Receiving Stolen Property” … [and] “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.”…
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 Brewer’s motion and entered judgment and sentence accordingly. This appeal ensued.
Discussion and Decision
Brewer asserts that his Indiana convictions and his Kentucky convictions contravene Indiana’s statutory prohibitions against double jeopardy. [I.C. § 35-41-4-5.] As we have explained:
Although the Indiana and United States Constitutions provide no protection from double jeopardy as between “dual sovereigns,” Indiana has provided statutory protection against double jeopardy in such situations. See State v. Allen, 646 N.E.2d 965, 967-68 (Ind. Ct. App. 1995), trans. denied. …
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Swenson v. State, 868 N.E.2d 540, 542 (Ind. Ct. App. 2007).
Brewer asserts that his January 2014 Kentucky convictions for receiving stolen property and fleeing/evading the police bar Indiana’s prosecution of him for, respectively, auto theft and resisting law enforcement. The State concedes that Brewer’s Kentucky conviction for receiving stolen property prohibited Indiana’s prosecution of him for auto theft. Accordingly, we reverse the trial court’s entry of conviction against Brewer for that offense and remand with instructions that the court vacate Brewer’s conviction and sentence for auto theft, as a Class D felony.
However, we agree with the State that Brewer’s Kentucky conviction for fleeing/evading the police does not prohibit Indiana from prosecuting Brewer for resisting law enforcement. …
… The statute only applies when “the alleged conduct constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction.” I.C. § 35-41-4-5. That is not the case with respect to his Kentucky conviction for fleeing from the Kentucky officer and his Indiana conviction for resisting Indiana’s law enforcement. Brewer’s act of fleeing/evading Officer Keller of the Henderson County, Kentucky, Sheriff’s Department was an offense wholly within the jurisdiction of the Commonwealth; Indiana has no jurisdiction to prosecute Brewer for his act of fleeing/evading a Kentucky officer within Kentucky. Likewise, Brewer’s offense of resisting Officer Chapman of the Evansville, Indiana, Police Department was wholly within Indiana’s jurisdiction; Brewer cites no authority for the proposition that Kentucky could—or did—prosecute him for his act of resisting Indiana’s law enforcement within Indiana. [Citation omitted.] Thus, the alleged conduct underlying Brewer’s Indiana conviction for resisting law enforcement is not “within the concurrent jurisdiction of Indiana and another jurisdiction.” I.C. § 35-41-4-5. Accordingly, the double jeopardy statute did not prohibit Indiana’s prosecution of Brewer for this offense.
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Affirmed in part, reversed in part, and remanded with instructions.
Baker, J., and Friedlander, J., concur.