COA rejects double jeopardy argument in McDonald’s shooting

A man convicted in a shooting at a Vigo County McDonald’s has lost his appeal of his criminal recklessness conviction, with the Indiana Court of Appeals rejecting his double jeopardy argument.

In Jesse L. Smith v. State of Indiana, 18A-CR-2597, Jesse Smith and Orville Johnson made plans in March 2018 to fight each other because both men were dating the same woman — Roxanne Smith, the estranged wife of Smith’s brother. The men had decided to meet at a Family Video store in Terre Haute, but when they each went to a different store location, Johnson called off the fight.

Instead, Johnson went to a McDonald’s restaurant to get something to eat, and while at the restaurant, he got into a phone argument with Jesse. Jesse then showed up at the McDonald’s and went through the drive-thru with Roxanne.

Once out of the drive-thru, Johnson’s friend Jlee Betz approached Jesse’s vehicle, prompting Jesse to pull a gun. Jesse told Betz not to come any closer, and Betz said he then heard a gunshot and the squeal of tires.

In turn, Betz pulled out his gun and fired twice at Jesse, which led to Jesse firing multiple times toward the restaurant, shattering one of its windows. The latter shooting occurred after Jesse had driven his car onto nearby Lafayette Street.

Smith was found the next day hiding in the basement at the home of one of Roxanne’s friends. He was subsequently charged with multiple felony and misdemeanor counts, including Level 3 felony attempted aggravated battery and Level 6 felony criminal recklessness.

Smith was found guilty as charged, but on appeal he argued the attempted aggravated battery and criminal recklessness convictions were double jeopardy violations. But the Court of Appeals disagreed, with Judge Rudolph Pyle III writing that the prosecutor’s closing arguments presented separate and distinct facts for each of those charges.

“In its closing arguments, the State cited only the aggression Smith showed toward Betz as evidence of attempted aggravated battery, specifically highlighting the parking lot shooting (not the Lafayette Street shooting),” Pyle wrote for the unanimous panel. “By contract, when discussing the criminal recklessness charges, the State pointed additionally to the Lafayette Street shooting and the recklessness Smith exhibited toward bystanders by firing at the McDonald’s building itself and shattering a window.

“For that reason, we cannot conclude, in our assessment of the evidence, that the jury ‘latched on to exactly the same facts for both convictions,’” Pyle continued, quoting Garrett v. State, 992 N.E.2d at 719-20 (Ind. 2013). “Thus, there was not a reasonable probability that the jury used the same evidentiary facts when finding Smith guilty of both offenses.”

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