COVINGTON v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] After a jury found Lyfe Covington guilty on two counts of misdemeanor intimidation, the trial court entered judgments of conviction on both and merged them for sentencing. Covington appeals, arguing that his two convictions violate double jeopardy principles. Finding that Covington's convictions violate the Double Jeopardy Clause of the Indiana Constitution, we reverse and remand.

Facts and Procedural History

[2] Covington was scheduled to attend a new employee orientation at Allisonville Meadows Assisted Living (the “Facility”) in Fishers on September 24, 2023. However, when Covington did not show up at the scheduled time, the Facility's Human Resources (H.R.) representative recommended to Covington's prospective supervisor, Sean Reidy, “that it may not be a good idea to continue with [Covington's] employment.” Transcript at 91. Since Covington failed to attend orientation on at least two other occasions and “there were some issues” during the hiring process, Reidy agreed. Id. at 103.¹

[3] Reidy sent a text message to Covington to let him know that the Facility was “no longer interested in hiring” him. Exhibits at 9. Sometime after receiving this text, Covington arrived at the Facility but was not granted access beyond the lobby. Covington then called Reidy, demanding that he “come down here” so Covington could “beat [his] ass and ․ fu***** kill [him].” Tr. at 105-06. Reidy was not at the Facility at the time but, fearing for the safety of those in the building, called 911.

[4] The State charged Covington with two counts of intimidation, both Level 6 felonies.² On both counts, a jury found Covington guilty of the lesser included offenses of intimidation as a Class A misdemeanor.³ The trial court entered judgments of conviction on Counts I and II and merged the two convictions for sentencing. The court then imposed a sentence of two days executed with credit for time served, plus court costs and a $500 fine. This appeal ensued.

Discussion and Decision

[5] Covington argues his “convictions for both Counts [I] and [II] violate the double jeopardy clause of both the [United States] Constitution and the Indiana Constitution.” Appellant's Brief at 7. Finding the Double Jeopardy Clause of the Indiana Constitution dispositive, we focus our analysis there.

[6] To start, we note the State concedes that we “should remand this case with instructions to vacate the judgment of conviction for Count II.” Appellee's Br. at 7. The State frames the trial court's error as clerical, arguing “when one or more judgments of conviction are entered for one offense, the resulting double jeopardy violation is not cured by merging the convictions.” Id. at 6 (citing West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied). However, the record is not clear why the trial court merged Covington's convictions, let alone that it did so to avoid double jeopardy. Thus, we must determine whether Covington's convictions violate double jeopardy principles, which presents a question of constitutional law that we review de novo. Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020).

[7] Additionally, “[w]hile we sometimes accept concessions from the State regarding factual matters, ‘a question of law ․ is a matter for the courts, not the State, to decide.’ ” In re K.W., 247 N.E.3d 1250, 1261 (Ind. Ct. App. 2024) (quoting Hochstetler v. State, 215 N.E.3d 365, 371 (Ind. Ct. App. 2023), reh'g denied). We review a “conceded issue for prima facie error.” Id. “Prima facie error in this context means ‘at first sight, on first appearance, or on the face of it.’ ” Id. (quoting Salyer v. Wash. Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020)).

[8] Article 1, Section 14 of the Indiana Constitution provides, in part, that “[n]o person shall be put in jeopardy twice for the same offense.” This prohibition against double jeopardy “embod[ies] a substantive bar to multiple convictions or punishments for the same offense in a single trial.” Wadle, 151 N.E.3d at 235. When a single act or transaction results in multiple convictions under separate statutes, we engage in a multi-step process to determine whether the convictions violate double jeopardy. Id. at 247-250. The first step is to determine whether “either statute clearly permits multiple punishment, either expressly or by unmistakable implication[.]” Id. at 248. If so, “the court's inquiry comes to an end and there is no” double jeopardy violation. Id. Here, Covington received two convictions for a single act, i.e., calling Reidy to threaten him. While this act implicates Indiana Code section 35-45-2-1(a)(2)⁴ and (a)(4),⁵ the statute does not expressly authorize multiple convictions for a single threat.

[9] We next turn to the second step of the double jeopardy analysis and “apply our included-offense statutes to determine statutory intent.” A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024) (quoting Wadle, 151 N.E.3d at 248) (emphasis in original). Indiana Code section 35-38-1-6 provides that “[w]henever: (1) a defendant is charged with an offense and an included offense in separate counts; and (2) the defendant is found guilty of both counts; judgment and sentence may not be entered against the defendant for the included offense.” Our legislature has defined an “included offense” as

an offense that:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

I.C. § 35-31.5-2-168.

[10] Covington was charged under Count I for violating Indiana Code section 35-45-2-1(a)(2) by threatening to kill Reidy with the intent to place him in fear of retaliation for having lawfully rescinded the Facility's offer of employment to Covington. Count II charged Covington under Indiana Code section 35-45-2-1(a)(4) for making the same threat with the intent to place Reidy in fear that it would be carried out. As charged, both counts required proof of the same material elements because for Covington to have intended to place Reidy in fear of retaliation, he must have also intended to place Reidy in fear that the threat would be carried out. Consequently, Count II is included in Count I.

[11] Because Count II is included in Count I, we reach the third and final step of the double jeopardy analysis and “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 249. “[I]f the facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than as cumulative) sanctions.” Id. In this case, the same facts were used to charge and convict Covington of Counts I and II, specifically the evidence that Covington called Reidy and threatened to “beat [his] ass and ․ fu***** kill [him].” Tr. Vol. 2 at 105:20-22. The State properly presented Counts I and II as alternate theories of culpability, but the convictions on both counts cannot stand under double jeopardy principles because Covington threatened Reidy as part of a single continuous crime.

[12] “When two convictions are found to contravene Indiana double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation.” Noble v. State, 734 N.E.2d 1119, 1125 (Ind. Ct. App. 2000), trans. denied. If not, “one of the convictions must be vacated.” Id. “In the interest of efficient judicial administration, the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate.” Moala v. State, 969 N.E.2d 1061, 1065 (Ind. Ct. App. 2012).

[13] Covington's convictions are of equal severity, as they are both Class A misdemeanors. And because Covington was convicted of two counts of the least serious form of intimidation, neither conviction can be reduced further. Even if one conviction could be reduced, that would not cure the double jeopardy violation because both convictions arose from the same set of facts. See Noble, 734 N.E.2d at 1125-26 (holding that reduction of one battery conviction to lesser form would not cure the double jeopardy violation because it arose from same facts as remaining felony battery conviction).

[14] Consequently, we agree with Covington that one of his intimidation convictions must be vacated. Because the trial court merged the convictions for sentencing, there are no more or less severe penal consequences for vacating one instead of the other. Therefore, we determine that Count II should be vacated. See id. (vacating second battery conviction where sentences for two convictions were of equal length).

Conclusion

[15] For the foregoing reasons, we reverse and remand with instructions for the trial court to vacate Covington's conviction on Count II.

[16] Reversed and remanded.

FOOTNOTES

1.   Reidy's statement that there were “some issues” apparently refers to a text Covington sent to the Facility's H.R. representative informing her he had “pink roxy, 10's and 20's. They're twenty a pop[.]” Tr. at 26. Though the trial court ruled this text inadmissible at trial, Covington nonetheless draws our attention to it on appeal. See Appellant's Brief at 4-5 (“Covington also, seemingly by accident, texted his HR representative about having narcotics to sell.”).

2.   Ind. Code §§ 35-45-2-1(a)(2), (a)(4), b(1)(A).

3.   I.C. § 35-45-2-1(a)(2), (a)(4).

4.   Encompassing a threat made “with the intent: ․ (2) that another person be placed in fear of retaliation for a prior lawful act[.]” I.C. § 35-45-2-1(a)(2).

5.   Encompassing a threat made “with the intent: ․ (4) that another person be placed in fear that the threat will be carried out[.]” I.C. § 35-45-2-1(a)(4).

DeBoer, Judge.

Altice, C.J., and Pyle, J., concur