Eric Charles Kyle v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 13 2020, 9:17 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric Charles Kyle, April 13, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2848
v. Appeal from the
Vermillion Circuit Court
State of Indiana, The Honorable Jill Wesch, Judge
Appellee-Plaintiff. Trial Court Cause No.
83C01-1907-F3-5
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020 Page 1 of 4
[1] Eric Charles Kyle (“Kyle”) pleaded guilty to armed robbery1 as a Level 3 felony
and theft2 as a Class A misdemeanor. He was sentenced to an aggregate ten
years for his convictions and ordered to pay restitution to the victim in the
amount of five hundred dollars. He appeals his convictions and restitution
order contending that the convictions for robbery and theft violate double
jeopardy protections and that the order of restitution was not supported by
sufficient evidence.
[2] We vacate Kyle’s conviction for theft as a Class A misdemeanor and affirm his
robbery conviction and the trial court’s restitution order.
Facts and Procedural History
[3] On July 15, 2019, Kyle entered Casey’s General Store in Clinton, Indiana
armed with a BB gun which appeared to be a handgun. He demanded cash
from the store clerk. The clerk removed five hundred dollars from the store safe
and handed it to Kyle who then left the store. Kyle was arrested and charged
with armed robbery and theft. He pleaded guilty to both charges. The trial
court sentenced Kyle to ten years for the robbery and one year for the theft,
with the sentences to be served concurrently.
1
See Ind. Code § 35-42-5-1.
2
See Ind. Code § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020 Page 2 of 4
Discussion and Decision
[4] Kyle first contends that his dual convictions for robbery and theft violate double
jeopardy protections. We agree.
[5] As cited in Kyle’s brief, “Article I, Section 14 of the Indiana Constitution
provides, “No person shall be put in jeopardy twice for the same offense.”
Here, Kyle was convicted of robbery and theft. The charging instruments
disclose that both charges were predicated on the taking of $500.00 from
Casey’s General Store in Clinton, Indiana on July 15, 2019. The State
acknowledges in its brief that the evidence necessary to prove theft was also the
evidence needed to prove robbery.
[6] Two offenses are the same for the purpose of double jeopardy when the same
act constitutes a violation of the distinct statutory provisions which do not
require proof of an additional fact. Hall v. State, 493 N.E.2d 433, 435 (Ind.
1986). Here, Kyle committed a single act—the hold-up of the gas station—and
pleaded guilty to two offenses. Because the dual convictions violate double
jeopardy protections, we vacate Kyle’s conviction for theft.
[7] We also hold that the trial court did not abuse its discretion by ordering Kyle to
pay restitution. First, Kyle makes no argument that the trial court abused its
discretion in ordering the restitution. Second, as this Court held in Rich v. State,
890 N.E.2d 44, 49 (Ind. Ct. App. 2008), a restitution order must be supported
by sufficient evidence of the actual loss sustained by the victim of the crime. See
also, Lohmiller v. State, 884 N.E.2d 903, 916 (Ind. Ct. App., 2008).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020 Page 3 of 4
[8] Here, the monetary value of the loss sustained by Casey’s General Store was
easily ascertainable--the defendant stole $500.00 in U.S. currency. The
restitution request form, the probable cause affidavit, and the police report all
provide reasonable bases for determining the loss that Casey’s sustained, and
the trial court did not abuse its discretion in ordering Kyle to pay restitution in
this amount.
[9] Affirmed in part and Vacated in part.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2848 | April 13, 2020 Page 4 of 4