MEMORANDUM DECISION
Apr 07 2015, 10:01 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffry G. Price Gregory F. Zoeller
Peru, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jon Jerricco Haupert, April 7, 2015
Appellant-Defendant, Court of Appeals Case No.
85A02-1407-CR-510
v. Appeal from the Wabash Superior
Court.
State of Indiana, The Honorable Christopher M. Goff,
Judge
Appellee-Plaintiff.
Cause No. 85D01-1402-FD-124
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jon Jerricco Haupert (Haupert), appeals his conviction of
strangulation, a Class D felony, Ind. Code § 35-42-2-9(b) (2013); and battery
resulting in bodily injury, a Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(A)
(2013).
[2] We affirm but remand with instructions to correct a clerical irregularity.
ISSUES
[3] Haupert raises two issues on appeal, which we restate as follows:
(1) Whether Haupert’s conviction of both a Class D felony strangulation and a
Class A misdemeanor battery violate his constitutional right against double
jeopardy; and
(2) Whether the trial court properly enhanced Haupert’s sentence rather than
imposing a separate, consecutive sentence for his adjudication as a habitual
offender.
FACTS AND PROCEDURAL HISTORY
[4] Towards the end of January 2014, Haupert was arrested and incarcerated in the
Wabash County Jail on charges unrelated to the current proceedings. He was
housed in Cell Block C-1, which consists of seven cells and a common area
known as the “Day Room.” (Tr. p. 26). The Day Room contains a television
and tables and is primarily used for the inmates to congregate during the day.
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Because the cells in Cell Block C-1 could accommodate only fourteen inmates,
there were a few additional bunk beds in the Day Room in the event of
overcrowding. At that time, fifteen inmates were assigned to Cell Block C-1.
The jail’s policy requires that all of the cell spaces must be filled before the Day
Room beds may be utilized at night. Thus, only one inmate in Cell Block C-
1—Charles D. Smith (Smith)—had been sleeping in a Day Room bunk.
[5] On February 2, 2014, shortly before 10:00 p.m., Haupert informed Smith that
he wanted to sleep in the Day Room, so Smith would need to relocate to a cell.
Smith refused, explaining that he had “been there the longest” and “had no
plans to take a cell that night.” (Tr. p. 27). Haupert threatened that they could
“figure this out the easy way or the hard way[,]” but Smith was not persuaded.
(Tr. p. 83). Angered by Smith’s resistance, Haupert went into his cell and
changed from his personal gray sweatpants into a blue pair that had been issued
by the jail. According to Haupert, “blood don’t show up as easy on the, uh,
dark blue” and “if I was gonna ruin something it would have been State issue
where it didn’t cost me.” (Tr. p. 84). Haupert then went into the cell directly
across from Smith’s bunk because he was aware that this particular cell was in
“a blind spot” of the jail’s surveillance cameras. (Tr. p. 86). He “taunt[ed]
[Smith] to come in there” with the intent to “physically assault him.” (Tr. pp.
79, 81).
[6] Smith, however, continued reading on his bunk, so Haupert rushed out of the
cell and lunged at him. When Smith dodged to avoid being punched, Haupert
grabbed him around the neck and yanked him off the bunk. With Smith
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secured in a headlock, Haupert dragged him toward the cell, but Smith grabbed
onto the cell’s bars in an effort to avoid being pulled all the way in. Haupert
tightened his grip on the headlock, inhibiting Smith’s ability to breathe, and
also administered several blows to Smith’s rib cage with his knee. Smith
managed to break free and ran across the Day Room to push the emergency
button to summon a correctional officer.
[7] Assistant Jail Commander Duane Coburn responded and escorted Smith out of
Cell Block C-1. He contacted the Wabash County Sheriff’s Department, and
Deputy Eric Ryggs (Deputy Ryggs) arrived to investigate. Deputy Ryggs first
reviewed the surveillance footage and observed that Smith was “holding his left
side” following the altercation. (Tr. p. 67). Deputy Ryggs subsequently met
with Smith for an interview, at which point Smith “was still holding his left side
and appeared to be in a lot of pain.” (Tr. p. 67). Deputy Ryggs took
photographs of the red marks left on Smith’s neck as a result of the headlock.
[8] On February 19, 2014, the State filed an Information, charging Haupert with
Count I, strangulation, a Class D felony; and Count II, battery resulting in
bodily injury, a Class A misdemeanor. On March 6, 2014, the State filed an
Information alleging Haupert to be a habitual offender.
[9] On June 11, 2014, the trial court conducted a bifurcated jury trial. At the close
of the evidence, the jury returned a guilty verdict on both Counts. Thereafter,
Haupert pled guilty to the habitual offender charge. The trial court entered a
judgment of conviction on Counts I and II and adjudicated Haupert as a
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habitual offender. On July 7, 2014, the trial court held a sentencing hearing.
On Count I, strangulation, the trial court imposed an executed sentence of five
years, which included a three-year enhancement for the habitual offender
adjudication. As to Count II, battery, the trial court ordered a concurrent one-
year sentence.
[10] Haupert now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Double Jeopardy
[11] Haupert claims that his conviction of both strangulation and battery violates his
constitutional right to be free from double jeopardy. The Double Jeopardy
Clause of the Indiana Constitution provides that “[n]o person shall be put in
jeopardy twice for the same offense.” IND. CONST. art. 1, § 14. The Indiana
Supreme Court has determined that, for purposes of double jeopardy, two
offenses are the same offense if, “with respect to either the statutory elements of
the challenged crimes or the actual evidence used to convict, the essential
elements of one challenged offense also establish the essential elements of
another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
On appeal, our court reviews de novo whether a defendant’s conviction violates
the Double Jeopardy Clause. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct.
App. 2005).
[12] In order to convict Haupert of strangulation, a Class D felony, the State had to
establish that he,
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in a rude, angry, or insolent manner, knowingly or intentionally:
(1) applie[d] pressure to the throat or neck of another person; or
(2) obstruct[ed] the nose or mouth of . . . another person;
in a manner that impedes the normal breathing or the blood
circulation of the other person.
[13] I.C. § 35-42-2-9(b) (2013). On the other hand, proving that Haupert committed
battery resulting in bodily injury, a Class A misdemeanor, required the State to
demonstrate that he “knowingly or intentionally touche[d] another person in a
rude, insolent, or angry manner,” which “result[ed] in bodily injury to any
other person.” I.C. § 35-42-2-1(a)(1)(A) (2013). The crimes of strangulation
and battery resulting in bodily injury “each contain an element not shared by
the other.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). Thus, Haupert
does not challenge his conviction under the statutory elements test; rather, he
asserts that his conviction violates the “actual evidence test.” See id. at 1233-34.
[14] Applying the actual evidence test, “we examine the actual evidence presented at
trial in order to determine whether each challenged offense was established by
separate and distinct facts.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).
We will find a double jeopardy violation only if there is “a reasonable
possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.” Id. There is no double
jeopardy violation if “the evidentiary facts establishing the essential elements of
one offense also establish only one or even several, but not all, of the essential
elements of a second offense.” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833
(Ind. 2002)). A “reasonable possibility” determination “turns on a practical
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assessment of whether the [fact finder] may have latched on to exactly the same
facts for both convictions.” Id. (alteration in original) (quoting Lee, 892 N.E.2d
at 1236). Our court must review “the evidence from the jury’s perspective and
may consider the charging information, jury instructions, and arguments of
counsel.” Id.
[15] Haupert argues that the charging Information and jury instructions “simply
quoted” the statutory language, and that the language defining the crimes of
strangulation and battery are “almost identical.” (Appellant’s Br. p. 8).
Haupert further asserts that the evidence supports a finding of battery resulting
in bodily injury, but there is insufficient evidence to prove that he strangled
Smith. As such, he posits that the jury improperly relied on the evidence that
establishes battery to also convict him of strangulation. We initially note that
Haupert’s argument of insufficient evidence based on Smith’s references to the
conduct as a “headlock” rather than a “strangle” is nothing more than a request
to reweigh evidence, which we decline to do. (Appellant’s Br. pp. 8-9).
Furthermore, we disagree with Haupert’s actual evidence analysis for two
reasons.
[16] First, we acknowledge that Haupert is correct that the charging Information
and the jury instructions do not explicitly distinguish that the headlock is the
basis for the strangulation charge and that the rib injury is the basis for the
battery charge. Instead, the Information and instructions clarify that the crime
of strangulation requires proof that Haupert applied pressure to Smith’s throat
or neck in a manner that impeded his normal breathing, whereas the crime of
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battery requires proof that Haupert touched Smith in a rude, insolent, or angry
manner resulting in bodily injury. Here, the jury was presented with distinct
evidence to independently support both offenses. By grabbing Smith in a
headlock and applying pressure to his throat, whereby Smith was unable to
breathe, Haupert completed the crime of strangulation. Beyond that, he
committed battery by using his right knee to repeatedly strike the left side of
Smith’s rib cage, resulting in “pain for a month and a half afterwards.” (Tr. p.
31).
[17] We are unpersuaded by Haupert’s contention that there is a reasonable
possibility that the jury construed the headlock as the rude, insolent, or angry
touching necessary to support a battery conviction. The jury was instructed to
“consider all the instructions together.” (Appellant’s App. p. 131). Relating to
the battery charge, the jury instruction defined “bodily injury” as “any
impairment of physical condition, including physical pain.” (Appellant’s App.
p. 136). Here, the bulk of the evidence demonstrating any type of “bodily
injury” concentrated on the kneeing of Smith’s ribs and the amount of pain it
caused. (Appellant’s App. p. 136). Deputy Ryggs testified that he observed
Smith clutching his left side in the surveillance footage—which the jury also
reviewed—as well as during the interview following the incident. Smith
testified that the level of pain to his ribs, “[o]n a scale from 1 to 10, I would say
it was a 7, right after it happened, 10 being I’m ready to die.” (Tr. p. 31).
Accordingly, in finding Haupert guilty of battery, we find it likely that the jury
relied on the distinct fact that Smith sustained bodily injury as a result of being
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kneed in the ribs, notwithstanding the headlock. See Goldsberry, 821 N.E.2d at
459 (“The appellant must show more than a remote or speculative possibility
that the same facts were used.”).
[18] Second, in its closing argument, the State summarized that “Mr. Haupert
intended everything that you saw in that video. Everything he did to Mr.
Smith. He was angry. He grabbed him. He kneed him. He strangled him. He
cut off his airway.” (Tr. pp. 91-92). Although the State did not specify which
evidence should be used to find Haupert guilty of each offense, it emphasized
that Haupert committed several distinct acts in the course of the skirmish.
Moreover, in the defense’s closing argument, Haupert’s counsel specifically
identified “the evidence that was distinct to each crime.” Lee, 892 N.E.2d at
1237. In particular, the defense clarified for the jury that
the legislature sets up the elements of the crime of Battery. And that’s
what they define Battery is. A rude or insolent touching causing
injury. Causing pain. You saw the knee in the ribs. I certainly think
that would hurt. Mr. Smith told ya it hurt and that seems logical. . . .
Now he also used words like, well, my air was cut off when I grabbed
the bar or he didn’t really know when his air was cut off. Now he also
says he panicked, you know. . . . But in order to convict Mr. Haupert
of Strangulation you need to be convinced that it wasn’t panic. . . . It
was the fact that Mr. Haupert cut off, applied pressure and cut off his
airflow. . . . Now, strangulation is, for someone to intend to strangle
another person, I mean, that’s . . . above and beyond one to hit or
strike. Strangulation is a much more intimate form of violence.
(Tr. p. 94). As a practical matter, taking into consideration the charging
Information, the jury instructions, the closing arguments, and the evidence
itself, we do not find a “reasonable possibility” that the jury relied on the same
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evidentiary facts to establish the essential elements of both strangulation and
battery. Garrett, 992 N.E.2d at 719. Therefore, Haupert’s conviction does not
violate the Indiana Double Jeopardy Clause.
II. Habitual Offender Enhancement
[19] Haupert also claims that “the language used by the trial court in the enhanced
sentence is contrary to that required by applicable case law.” (Appellant’s Br.
p. 10). In the Abstract of Judgment, the trial court indicated that Haupert was
sentenced to three years for the habitual offender adjudication, which was to be
served “consecutive” to his two-year sentence under Count I. (Appellant’s
App. p. 10). According to Haupert, the trial court erred by imposing
consecutive sentences instead of simply noting that Haupert had received a five-
year enhanced sentence for his conviction of Class D felony strangulation.
(Appellant’s Br. p. 11). 1
[20] Our supreme court has previously established that the imposition of “a separate
consecutive sentence” for a habitual offender adjudication “is an irregularity”
because a “habitual offender conviction allows enhancement of a sentence for a
substantive offense, not a separate sentence.” Hazzard v. State, 642 N.E.2d
1368, 1371 (Ind. 1994) (citing Armstead v. State, 538 N.E.2d 943, 944 (Ind.
1989)). In the present case, the trial court indicated during the sentencing
1
Having determined that Haupert’s conviction of Class D felony strangulation will not be vacated because
there is no double jeopardy violation, we need not address Haupert’s assertion that “there is no predicate for
the habitual offender enhancement.” (Appellant’s Br. p. 10).
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hearing that it would be imposing a consecutive sentence for the habitual
offender adjudication, but the State reminded the court that it is considered “an
enhanced sentence that is an additional fixed term” rather than “a consecutive
sentence.” (Tr. p. 131). As a result, in its Sentencing Order, the trial court
“enhanced [Haupert’s] sentence, as to [Count] I, by an additional [three] years
imprisonment for a total sentence, as to [Count] I, of [five] years with none
suspended.” (Appellant’s App. p. 12). It is therefore clear that the trial court
ordered a properly enhanced sentence. However, we must remand with
instructions for the trial court to correct the Abstract of Judgment to reflect that
the habitual offender adjudication merits an enhancement to the sentence on
Count I rather than a separate, consecutive sentence.
CONCLUSION
[21] Based on the foregoing, we conclude that Haupert’s conviction of strangulation,
a Class D felony, and battery resulting in bodily injury, a Class A misdemeanor,
does not violate Indiana’s Double Jeopardy Clause. We further conclude that
the trial court imposed a properly enhanced sentence on Count I but
erroneously indicated in the Abstract of Judgment that the enhancement was a
separate, consecutive sentence.
[22] Affirmed but remanded with instructions to correct a clerical irregularity.
[23] Vaidik, C. J. and Baker, J. concur
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