MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Mar 09 2016, 9:14 am
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
Patricia Caress McMath Gregory F. Zoeller
Marion County Public Defender Office Attorney General
Indianapolis, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Johnson, March 9, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1508-CR-1090
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
The Honorable Marshelle
Broadwell, Commissioner
Trial Court Cause No.
49G17-1410-F6-47845
Vaidik, Chief Judge.
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Case Summary
[1] Michael Johnson contends that his convictions for strangulation, domestic
battery, and battery in the presence of a child, each a Level 6 felony, were all
based on a single act of choking and that two of them must therefore be vacated
pursuant to the Indiana Constitution’s ban on double jeopardy. We agree and
remand this matter to the trial court with instructions to vacate the convictions
and sentences for strangulation and battery in the presence of a child, leaving
intact only the conviction and sentence for domestic battery.
Facts and Procedural History
[2] On the morning of October 14, 2014, Johnson and his girlfriend, S.W., were
arguing in a bedroom of the house they shared, while S.W.’s four children were
in an adjacent bedroom. Tr. p. 118-26. S.W. was seated at the end of an air
mattress, and Johnson jumped on her and started choking her, which cut off her
breathing and caused her pain. Id. at 126-31. S.W. was eventually able to get
out from under Johnson and call 911. Id. at 132-38.
[3] The State charged Johnson with strangulation, domestic battery, and battery in
the presence of a child, all as Level 6 felonies.1 The strangulation charge stated:
1
The State also charged Johnson with battery of one of S.W.’s children and intimidation. The State
eventually dismissed the intimidation charge, but Johnson was convicted on the battery charge. Johnson
does not challenge that battery conviction on appeal, so we do not address it.
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On or about October 14, 2014, the following named defendant,
Michael Johnson, in a rude, insolent or angry manner, did
knowingly apply pressure to the throat or neck, or obstruct the
nose or mouth of [S.W.], another person, in a manner that
impeded the normal breathing or the blood circulation of the
other person[.]
Appellant’s App. p. 25. The domestic-battery charge stated:
On or about October 14, 2014, Michael Johnson did knowingly
in a rude, insolent or angry manner touch [S.W.], who…was
living with Michael Johnson as if a spouse of Michael
Johnson…, and further said touching resulting in bodily injury to
the other person, specifically pain, furthermore Michael Johnson
committed said offense in the physical presence of K.W., 13,
and/or P.W., 12, and/or S.T., 11, and/or H.T., 9, a child less
than sixteen (16) years of age, knowing that said child was
present and might be able to see or hear the offense[.]
Id. The battery in the presence of a child charge stated:
On or about October 14, 2014, Michael Johnson, a person at
least 18 years of age, did knowingly or intentionally touch
[S.W.], a family or household member (as defined in Indiana
Code Section 35-31.5-2-128), in a rude, insolent, or angry
manner, to-wit: pushing and/or poking and/or choking and said
offense was committed in the physical presence of K.W., 13,
and/or P.W., 12, and/or S.T., 11, and/or H.T., 9, a child less
than sixteen (16) years of age, knowing that said child was
present and might be able to see or hear the offense[.]
Id.
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[4] The case went to a jury trial. After the jury had been selected, the trial court
gave preliminary instructions that recited verbatim the charges against Johnson.
Tr. p. 76-78. Then the prosecutor made an opening statement in which he
described Johnson’s attack on S.W. as follows: “We’re here because on
October 14, 2014, he pushed [S.W.] back on the bed they shared, straddled her,
put his hands around her neck and squeezed.” Id. at 100. The State called
S.W. as its first witness, and she testified that Johnson “jumped on top” of her,
“straddled” her, and “started choking” her. Id. at 130. She also testified that
Johnson “hurt” her by “squeezing” her neck. Id. at 131. Later, in the
prosecutor’s very brief closing argument, he did not separately address the three
charges. He described Johnson’s attack on S.W. as follows: “[H]e strangled
her.” Id. at 371.
[5] The jury found Johnson guilty of all three charges, and the trial court entered
convictions on all three counts and imposed identical 365-day sentences for
each conviction, to run concurrently. Id. at p. 391, 449-451; Appellant’s App.
p. 14.
Discussion and Decision
[6] Johnson argues that his separate convictions for strangulation, domestic
battery, and battery in the presence of a child violate Article 1, Section 14 of the
Indiana Constitution, which provides, in part, that “[n]o person shall be put in
jeopardy twice for the same offense.” Johnson, who represented himself at trial
and at sentencing, does not assert that he raised this claim with the trial court.
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However, because double-jeopardy violations constitute fundamental error,
they may be raised for the first time on appeal. Garcia v. State, 686 N.E.2d 883,
884 (Ind. Ct. App. 1997).
[7] For purposes of Article 1, Section 14, two or more offenses constitute the “same
offense” if, with respect to either the statutory elements of the challenged crimes
or the actual evidence used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another challenged
offense. Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013). Johnson
contends that his convictions fail the actual-evidence test.
[8] “Under 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.” Id. “To find a double-jeopardy violation under this
test, we must conclude that 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. (quoting Richardson v. State, 717 N.E.2d 32, 53 (Ind.
1999)). “In determining the facts used by the fact-finder, it is appropriate to
consider the charging information, jury instructions, arguments of counsel and
other factors that may have guided the jury’s determination.” Hines v. State, 30
N.E.3d 1216, 1222 (Ind. 2015) (formatting altered).
[9] Johnson argues that the convictions for strangulation, domestic battery, and
battery in the presence of a child were all based on the same exact evidence—
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the choking—and that two of them must be vacated. In response, the State
does not dispute that multiple convictions based on the choking would fail the
actual-evidence test. Instead, it asserts that, while the strangulation conviction
was based on the choking, the domestic battery and battery in the presence of a
child convictions were based on a separate “touching” by Johnson, specifically,
“pushing” S.W. back onto the mattress as he went to choke her. Appellee’s Br.
p. 7, 9. The State purports to concede that the latter two convictions violate the
actual-evidence test, see Appellee’s Br. p. 9 n.9, but otherwise would have us
affirm the domestic-battery conviction (based on the alleged “pushing”) and the
strangulation conviction (based on the choking).
[10] The first problem with the State’s position is that the domestic-battery
conviction could not have been based on the alleged “pushing.” The domestic-
battery statute requires that a touching result in bodily injury, see Ind. Code §
35-42-2-1.3(a), and the State does not assert that anything other than the
choking caused injury (pain) to S.W. See Tr. p. 131. Therefore, the domestic-
battery conviction had to have been based on the same choking as the
strangulation conviction. As noted above, the State does not dispute that this
constitutes a double-jeopardy violation that requires the vacating of one of the
convictions. The State asks that we preserve the domestic-battery conviction if
we find any double-jeopardy problems, and Johnson does not argue otherwise
in his reply brief. Therefore, we will remand this matter to the trial court to
vacate the conviction and sentence for strangulation.
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[11] But first we must return to the State’s argument that the battery in the presence
of a child conviction was based on the alleged “pushing” and should be
affirmed notwithstanding any conviction based on the choking. We disagree
with the State and conclude that there is a very reasonable possibility that all of
the convictions were based on the choking, so that only one conviction can
stand. See Frazier, 988 N.E.2d at 1262.
[12] Looking first at the charging information, the State based the battery in the
presence of a child count on Johnson’s alleged “pushing and/or poking and/or
choking” of S.W. Appellant’s App. p. 25 (emphasis added). This charge’s
specific reference to “choking” obviously left open the possibility that the jury
could find Johnson guilty of battery in the presence of a child based on the
choking. The trial court’s instructions to the jury did nothing to eliminate this
possibility; the instructions simply incorporated the charging information
verbatim. Tr. p. 77-78. The only time that the prosecutor arguably
distinguished the choking and the alleged “pushing” was during his opening
statement, when he said that Johnson “pushed [S.W.] back on the bed they
shared, straddled her, put his hands around her neck and squeezed.” Id. at 100.
However, the State does not contend that it actually presented any evidence to
the jury that Johnson “pushed” S.W. separately from choking her. It cites two
pages of the trial transcript that include S.W.’s description of the attack, see id.
at 129-130, but nowhere in that description did S.W. use the word “push” or
any variations of the word “push.” To the contrary, the transcript pages cited
by the State establish that any contact before or during the choking was
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incidental to and part of the act of choking. Finally, the prosecutor emphasized
the centrality of the choking during his closing argument, when he used just
three words to describe Johnson’s attack on S.W.: “[H]e strangled her.” Id. at
371.
[13] Having reviewed the record as a whole, we are convinced that there is a
reasonable possibility that the jury found Johnson guilty of both domestic
battery and battery in the presence of a child based on the choking. As such,
one of the convictions must be vacated. The State again asks us to preserve the
domestic-battery conviction, and Johnson again lodges no objection to that
result. Therefore, in remanding this matter, we also instruct the trial court to
vacate the conviction and sentence for battery in the presence of a child.
Conclusion
[14] We affirm Johnson’s conviction for domestic battery but remand this matter to
the trial court with instructions to vacate his convictions and sentences for
strangulation and battery in the presence of a child.2
2
After he was sentenced, Johnson accepted the trial court’s offer to appoint an attorney to represent him on
appeal. Tr. p. 451. However, Johnson himself has sent the Clerk of this Court several documents in which
he complains about the performance of the attorney and asks for a different attorney or permission to proceed
without counsel: a “Motion for Extension of Time to Prepare Brief” postmarked December 23, 2015, a
“Motion for Appellant to Proceed Pro-Se” postmarked January 19, 2016, a “Motion for Appellant’s Counsel
to Send a Copy of the Records of Proceedings & Transcripts” postmarked January 19, 2016, a “Petition by
Rule 66. Relief Available on Appeal” postmarked February 3, 2016, and a “Motion by Second Rendering
Requesting to Remove Appellant Counsel and Proceed as Pro-Se or Appoint a New Appellant Counsel”
postmarked February 16, 2016. For a variety of reasons, we decline to grant Johnson any of the relief he
seeks. First, because the trial court appointed the attorney, Johnson should have directed these requests to
the trial court. Second, he waited almost five months after his attorney was appointed—in fact, until after
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Bailey, J., and Crone, J., concur.
she filed her opening brief—to ask to have her removed. Third, Johnson does not have a constitutional right
to represent himself on appeal. See, e.g., Stroud v. State, 809 N.E.2d 274, 281 (Ind. 2004). Fourth, if Johnson
believes that his attorney has performed deficiently and that he has been prejudiced as a result, he has the
option of filing a petition for post-conviction relief. Fifth, and most importantly, Johnson has not presented a
coherent argument that would justify removal of his current attorney. Therefore, by a separate order issued
today, we (1) direct the Clerk of this Court to mark the motions and the petition as filed but (2) deny all of the
relief requested.
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