Sua sponte review by COA leads to conviction reversal

November 26, 2018

A man convicted of trying to steal a catalytic converter got his misdemeanor overturned after the Indiana Court of Appeals reviewed the matter, sua sponte, and ruled the same evidence was the fuel for two convictions.

Trey Smith was stopped by Columbus police officers on the evening of Dec. 6, 2017, because he matched the description of a man who had allegedly tried to remove a catalytic converter from a car parked in a lot. Confronted by law enforcement, Smith said he had been visiting at a residence down the street. However, when Officer Ron May went to the residence, the owner said he did not know Smith.

Subsequently, Smith was arrested and charged with Level 6 felony attempted theft and Class B misdemeanor criminal mischief. During trial, Smith objected to May’s testimony on hearsay grounds. The court permitted the testimony and the jury found Smith guilty as charged.

On appeal, Smith argued the Bartholomew Superior Court abused its discretion in admitting May’s testimony. Although the Court of Appeals agreed the testimony was hearsay, it found the error was harmless because other evidence supported Smith’s conviction for attempted theft.

However, the Court of Appeals then addressed on its own whether Smith’s convictions violated his right to be free from double jeopardy. The unanimous panel concluded Smith was being punished for the same act.

“Here, Smith’s behavior underlying the attempted theft is coextensive with the behavior necessary to establish an element of criminal mischief,” Judge Najam wrote for the court in Trey A. Smith v. State of Indiana, 18A-CR-1023. “In particular, the only evidence showing that Smith took a substantial step toward theft of the catalytic converter from (the victim’s) car was his partial removal of it. … And that same behavior was also the only evidence that Smith had damaged or defaced (the) car, which was the basis for his criminal mischief conviction.”

The Court of Appeals reversed Smith’s criminal mischief conviction and remanded to the Bartholomew Superior Court with instructions to vacate it.




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