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On August 3, 2012, under Cause Number 15D01-1202-CM-111 (“Cause No. 111”) in the Dearborn County Superior Court 1, Luke was found guilty of four counts of public indecency as class A misdemeanors … [committed against] T.R., R.B., C.B., and K.R.[, employees of a pharmacy next door to his home.]… The court issued no contact orders pertaining to R.B., T.R., and C.B. (collectively, the “No Contact Order”), each of which stated that contact “includes, but is not limited to, acts of harassment, stalking, intimidation, threats, and physical force of any kind.” [Record citations omitted throughout.]
In May of 2013, while Luke was on probation and under the No Contact Order, the female Pharmacy employees began seeing him on a “daily basis” on his porch and in his driveway while they were arriving at or leaving work. During that summer, Luke would wear a full dress suit and stand in his yard wearing dark sunglasses, which intimidated and frightened the employees, and the Pharmacy experienced a number of incidents of vandalism, including broken windows, a broken glass door, a broken window in an outbuilding, and a broken windshield on the Pharmacy’s delivery van, in which marbles were used to break the glass. A truck belonging to T.R.’s boyfriend was vandalized with flattened tires and the words “[p]unk bitch” scratched into the truck’s paint. Luke later admitted committing these acts to a friend ….
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On December 23, 2013, Luke was sentenced in another case, Cause Number 15D01-1308-FD-507 (“Cause No. 507”), … for a conviction for criminal mischief as a class A misdemeanor. … The court issued another no contact order regarding K.R., T.R., R.B., and C.B. …
Between January 3 and January 7, 2014, the Pharmacy employees again observed Luke outside the house and on the driveway staring at them at the Pharmacy. Luke was “always outside” despite the “freezing” weather. On January 8, 2014, Officer Jack Prarat … approached Luke, and Luke stated that the police had already been to his house earlier in the week and told him not to be outside, that he called his attorney about the matter who also told him not to be outside, and that “he was going to tell [Officer Prarat] the same thing he told the police earlier in the week[:] he was going to be outside and come summer he was going to be out even more and the girls at the pharmacy just needed to get used to it.”
On January 10, 2014, the State charged Luke in [“Cause No. 11”] with three counts of invasion of privacy as class D felonies for violating the No Contact Order issued to protect R.B., T.R., and C.B. between January 3, 2014, and January 7, 2014. [Footnote omitted.] …
On February 24, 2014, the State filed a charging information under [“Cause No. 19”] which, as amended on August 14, 2014, charged Luke with stalking as a class C felony and eight counts of criminal mischief as class A misdemeanors. Count I, stalking, alleged that, between January 24, 2012, and February 19, 2014, Luke stalked C.B., R.B., T.R., and/or K.R. and that such stalking violated the No Contact Order under Cause No. 111.
[Luke was convicted as charged in both Cause No. 11 and Cause No. 19, and he appealed.] ….
… Luke argues that the State tried the stalking case in Cause No. 19 in such a manner that the evidence previously used to prove the charges of invasion of privacy in Cause No. 11 became factually included in the stalking conviction. …
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The State’s case-in-chief at trial in Cause No. 11 focused on proving that Luke violated the No Contact Order (and therefore committed three counts of invasion of privacy) by harassing T.R., C.B., and R.B. between January 3 and January 7, 2014. … [All three victims testified that Luke’s conduct during that time scared and intimidated them, and Officer Prarat testified to Luke’s defiant statements on January 8. The State also presented surveillance taped depicting Luke, the multiple acts of vandalism against the pharmacy and T.R.’s boyfriend’s vehicle, and a letter Luke gave to a deputy prosecutor that stated in part: “I figured broken windows and flat tires would suffice as a humane wake up call.”]
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This same evidence of harassment was used by the State in Cause No. 19 as a part of its broader case that Luke stalked T.R., K.R., R.B., and C.B. between January 24, 2012, and February 19, 2014. …
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This Court has addressed a similar set of facts in Burton v. State, 665 N.E.2d 924 (Ind. Ct. App. 1996). …
Just as in Burton, the sole bases of Luke’s invasion of privacy convictions were also presented to prove that Luke was guilty of stalking. … Although the State presented substantially more evidence at the stalking trial in Cause No. 19 occurring over a longer time period, included in that evidence was all of the evidence presented in … Cause No. 11. Consequently, we find that there exists a reasonable probability that the jury in Cause No. 19 used the same facts to reach its conviction for stalking that were used to convict Luke of the invasion of privacy counts charged in Cause No. 11, and we conclude that such convictions violate the actual evidence test under double jeopardy principles.
Having so determined, we must decide what the appropriate remedy is under these circumstances. Ordinarily, the proper remedy would be to vacate the lesser offenses of invasion of privacy. [Citation omitted.] In his brief, Luke directs our attention to Ind. Code § 35-41-4-3(a)(1) which provides that:
A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if:
(1) the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.) . . . .
As noted, Luke’s convictions for stalking and invasion of privacy constituted the “same offense” for double jeopardy purposes, and the facts presented in prosecuting the invasion of privacy charges in Cause No. 11 were also presented when the State prosecuted Luke for stalking in Cause No. 19. The Cause No. 11 trial commenced on July 22, 2014, and Luke was found guilty on July 30, 2014. The trial in Cause No. 19 commenced on August 15, 2014, and Luke was found guilty on August 21, 2014.
Based upon Ind. Code § 35-41-4-3(a)(1), the proper remedy is to vacate Luke’s conviction for stalking. We therefore remand to the Dearborn Circuit Court with instructions to vacate Luke’s stalking conviction and resentence accordingly. [Citation omitted; footnote omitted.]
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Affirmed in part, reversed in part, and remanded.
Riley, J., concurs.
Altice, J., concurs in part and concurs in result as to issue I.
Altice, Judge, concurring in part and concurring in result as to issue I.
With respect to the first issue, I agree with my colleagues that Luke’s conviction for stalking cannot stand because his dual convictions for stalking and invasion of privacy violated the actual evidence test and, thus, constituted a double jeopardy violation. I do not agree, however, with the majority’s reliance on Ind. Code Ann. § 35-41-4-3(a)(1). This statute is not applicable because the subsequent prosecution for stalking was not “for commission of the same offense” (i.e., invasion of privacy) for which Luke had already been convicted. I.C. § 35-41-4-3(a). [Footnote omitted.] These are different statutory offenses and double jeopardy issues arose here only because the State failed to parse the evidence and carefully establish each with different evidence.
The circumstances presented in this case would more likely fall under I.C. § 35-41-4-4, which … [w]e have held … acts to bar a subsequent prosecution only when the defendant seeks dismissal prior to commencement of the second trial. [Citation omitted.] Luke did not file a motion to dismiss and, therefore, waived any statutory claim that the subsequent prosecution was barred.
Statutes aside, I think it suffices to say that the subsequent conviction for stalking violated principles of double jeopardy and should be vacated.