COA finds double jeopardy requires vacating criminal recklessness conviction

July 29, 2016

The Indiana Court of Appeals had to decide which of a man’s two convictions that violated double jeopardy prohibitions to vacate, and determined that his Level 6 felony criminal recklessness conviction should be vacated because it has the less severe penal consequence.

Jamel Owens was married to Candace Owens when the two got into an argument in September with 12-year-old J.D., whom his wife had custody, nearby. Jamel Owens poured lighter fluid on his wife and threatened to set her on fire, but did not. The state charged Owens with Level 6 felonies criminal recklessness, intimidation, and battery in the presence of a child, and Class B misdemeanor battery.

The court found him guilty as charged and merged the misdemeanor conviction into the felony battery conviction and sentenced Owens to two-year suspended sentences to be served concurrently on probation for each felony conviction. The court also entered a domestic violence determination and told him he is unable to now possess a firearm and ammunition.

Owens appealed, arguing his convictions of Level 6 felony criminal recklessness and battery in the presence of a child violate double jeopardy. He wanted the battery conviction vacated; the state requests the criminal recklessness conviction be vacated.

He received the same sentence for both and reducing the convictions to a less serious form will not cure the violation, Judge Rudolph Pyle wrote. At sentencing, the trial court entered a domestic violence determination that was based on Owens’ battery conviction. Thus, this conviction has more severe penal consequences than the criminal reckless conviction, since it prohibits Owens from owning a gun and ammunition.

The COA reversed the criminal reckless conviction and remanded for the trial court to vacate it. The case is Jamel Owens v. State of Indiana, 49A02-1601-CR-41.


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