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Judges reverse 2 convictions based on double jeopardy violations

December 19, 2014

Finding that the state relied on the same evidence to convict a man of three charges after he fired a gun at police while fleeing, the Indiana Court of Appeals ordered one of those convictions vacated and the other reduced.

The judges also reversed Christopher Duncan’s conviction of Class D felony identity deception because of insufficient evidence.

Police stopped the car Duncan was a passenger in for a routine traffic stop. Duncan, when getting out of the car, ran away from officers, who had smelled marijuana. One officer shot his TASER at Duncan as he saw Duncan fire at him. The gun was a 9mm, but Duncan claimed he thought it was a BB gun.

Duncan provided a false name and birth date to officers. Police later obtained a search warrant for a home and found Duncan’s Social Security card and birth certificate, 9 mm ammunition and some marijuana. Police also found marijuana in the car after the traffic stop.

Duncan appealed his convictions of Class C felony attempted battery by means of a deadly weapon, Class D felony identity deception, Class D felony pointing a firearm, Class D felony possession of marijuana, and Class D felony resisting law enforcement.

In Christopher Duncan v. State of Indiana, 09A05-1312-CR-613, the appeals court ordered the lower court to reverse the identity deception conviction because the state did not prove that George Frederick Walker, the name given by Duncan to police, was an actual person. The identity deception statute does not criminalize for the use of a fictitious name, Judge Ezra Friedlander pointed out.

The judges also remanded the case for the trial court to reverse Duncan’s conviction of pointing a firearm and reduce his resisting law enforcement conviction to a Class A misdemeanor due to double jeopardy principles. The state invited the jury to rely on the same evidence when convicting him of pointing a firearm and attempted battery with a deadly weapon. As such, there is a reasonable possibility that the jury relied on the same facts to convict Duncan of both offenses.

The resisting law enforcement conviction was elevated to a felony based on the use of a deadly weapon, which again was used to support both the enhancement of that charge and the attempted battery charge.

 

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