Pyle, J.
Jamel Owens (“Owens”) appeals, following a bench trial, his convictions for Level 6 felony criminal recklessness and Level 6 felony battery in the presence of a child. Owens argues, and the State concedes, that these convictions violate the Indiana Constitutional prohibition against double jeopardy. The parties, however, disagree on which of the two convictions should be vacated. Here, the trial court sentenced Owens to the same sentence on each conviction, but it also entered a domestic violence determination based on his battery conviction. …
….
In September 2015, Owens was married to and lived with Candace Owens (“Candace”). Twelve-year-old, J.D., of whom Candace had legal custody, also lived with them. On September 3, 2015, upon Candace’s return home from work, Owens got angry with Candace and questioned her about why it took her so long to get home. … The two again argued, and J.D. was in the house near where they were arguing. Owens then walked out to the garage, returned with a bottle of lighter fluid, and “sprayed it [on Candace] from the waist down.” (Tr. 14). Owens “then pulled out a lighter and said, ‘Since you don’t care about your life, . . . then why should I?’” (Tr. 16). As he held up the lighter, Candace asked, “‘So you’re really going to light me on fire? You’re really going to do this?’” (Tr. 16). Owens “stood there for a minute” and then walked back to the garage. (Tr. 16). When he returned to the house, Owens told Candace that he was not going to “light [her] on fire” and that he “really wanted to scare” her. (Tr. 16). Candace reported Owens’s actions to police one week later.
The State charged Owens with Count 1, Level 6 felony criminal recklessness; Count 2, Level 6 felony intimidation; Count 3, Level 6 felony battery; and Count 4, Class B misdemeanor battery. The trial court held a bench trial on December 16, 2015. … The trial court found Owens guilty as charged.
The trial court held the sentencing hearing immediately after the bench trial. … The trial court merged the Class B misdemeanor battery conviction into the Level 6 felony battery conviction and sentenced Owen on the remaining three convictions. For all three of Owens’s Level 6 felony convictions, the trial court imposed two (2) year suspended sentences to be served on probation and ordered that these sentences be served concurrently. The trial court also ordered Owens to have no contact with Candace or J.D., and it ordered him to participate in domestic violence counseling. Additionally, the trial court entered a domestic violence determination pursuant to INDIANA CODE § 35-38-1-7.7 and informed Owens that he was, therefore, prohibited him from possessing a firearm and ammunition. Owens now appeals.
….
Our Indiana Supreme Court has explained:
When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. If it will not, one of the convictions must be vacated. In the interest of efficient judicial administration, the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate.
Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999) (citation omitted).
The Richardson Court explained that when both convictions cannot stand, an appellate court should “vacate the conviction with the less severe penal consequences[.]” Id.
….
… Based on the undisputed double jeopardy violation and “being mindful of the penal consequences that the trial court found appropriate” in this case, we, therefore, reverse Owens’s conviction for Level 6 felony criminal recklessness conviction and remand to the trial court to vacate this conviction. …
Reversed and remanded with instructions.
Bradford, J., and Altice, J., concur.