FILED
Jul 08 2016, 8:51 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ann M. Sutton Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Agency Appellate Division
Indianapolis, Indiana Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ariel Gomez, July 8, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1511-CR-2000
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Hugh Patrick
Appellee-Plaintiff. Murphy, Magistrate
Trial Court Cause No.
49G16-1506-CM-21813
Brown, Judge.
Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016 Page 1 of 16
[1] Ariel Gomez appeals his three convictions for domestic battery as class A
misdemeanors. Gomez raises two issues which we revise and restate as:
I. Whether the evidence is sufficient to support his
convictions; and
II. Whether his convictions violate the continuous crime
doctrine.
We affirm in part and reverse in part.
Facts and Procedural History
[2] Gomez and Maria Chavez were married in 1995, and Gomez filed a petition
for dissolution of marriage on October 28, 2014. Chavez and Gomez owned
property on Rochester Avenue in Indianapolis (the “Rochester Property”).1 On
December 16, 2014, the dissolution court entered a preliminary order which
ordered that Gomez would have temporary possession of “rental property
rents.”2 Exhibits at 12.
[3] On May 16, 2015, the dissolution court held a final dissolution hearing at
which Gomez appeared in person and by counsel, Chavez appeared pro se, and
a Spanish interpreter appeared. Chavez believed that the Rochester Property
had been “granted to [her] legally by the Judge,” and it was her “understanding
1
The parties also owned parcels on Alton Avenue and King Avenue.
2
The preliminary order did not specifically identify the rental properties by address or otherwise.
Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016 Page 2 of 16
from the Judge that [she] had possession” of the property. Transcript at 8.3
According to Chavez, on June 21, 2015, she learned that Gomez had “lied to
the Judge saying the [Rochester Property] was rented when it wasn’t rented,”
that Gomez “had it ready to be rented after the Judge had granted it to [her],”
and that she “found out that he was going to get in the house, the person who
was going to rent the house, and [she] had to wait until the contract expired to
be able to take over the house.” Id. at 10. That day, Chavez called one of her
friends to see if her son, Amilcar Melendez, could help her “change the locks of
the house so he wouldn’t have access to it.” Id.
[4] Chavez and Melendez were at the Rochester Property when a woman and her
boyfriend arrived in a truck. Chavez “told the renter that if he had received any
deposit to ask for that because the house was not for rent because [Chavez] was
3
The record does not contain a transcript of the May 16, 2015 hearing in the dissolution action.
Subsequently, on June 24, 2015, the dissolution court entered a Decree of Dissolution of Marriage. Under a
heading for asset and debt division, the decree found that the Rochester Property and the properties on Alton
Avenue and King Avenue were jointly titled and had no mortgages or liens and stated, “[d]uring the
pendency of this matter, [Gomez] has been renting out the King Property for $400 a month, and he has been
renting out the Rochester Property for $450 a month” and “[t]he Court finds that [Gomez] collected $6,800
in rental proceeds during the pendency of this matter.” Exhibits at 16. The decree awarded the Rochester
Property to Chavez, and it awarded the $6,800 of rental proceeds and the properties on Alton Avenue and
King Avenue to Gomez. The court ordered that Gomez “shall sign a quitclaim deed transferring his interest
in the Rochester Property” to Chavez, ordered that Chavez “shall have immediate possession of the
Rochester Property, subject to the current lease,” and ordered that Gomez “shall provide [Chavez] with a
copy of the current lease for the Rochester Property, and [Chavez] shall be entitled to the rental proceeds for
the Rochester Property until the expiration of the lease.” Exhibits at 17.
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going to live there.”4 Id. at 11. The woman stayed in the vehicle and called
Gomez. Chavez gave Melendez her keys and told him to take her car “and go
around and then come back and pick [her] up” because she did not want
Melendez to be found by Gomez. Id. at 30. The woman in the truck observed
Melendez leave the property immediately after she called Gomez. Also, before
Gomez arrived at the property, the woman heard Chavez screaming and crying
inside the house.
[5] About ten minutes after the woman in the truck called Gomez, he arrived at the
property. He was upset, banged on the front door, entered the house,5 and
Chavez called the police. Gomez “grabbed [Chavez] by the hair [and] tried to
get [her] out of the house,” and she “couldn’t and [she] didn’t want to get out of
the house.” Id. at 12. He pushed her against the wall of the kitchen strongly
several times, and she sustained scratches to her left arm, a cut to her elbow,
and a bruise to her right knee.
[6] Approximately fifteen minutes after he had left, Melendez returned to the
Rochester Property and “could hear [Gomez and Chavez] screaming and
4
The woman in the van had paid Gomez a deposit of $500 and entered into a residential lease with him.
The lease agreement provided that the term of the tenancy was from June 20, 2015, until June 20, 2016, and
that rent would be paid to Gomez. A receipt for the $500 deposit is dated June 21, 2015.
5
The woman in the truck testified that Gomez knocked or banged on the front door, that she saw the door
open and Gomez enter the house through the door, that she observed that Chavez’s demeanor was very
aggressive, and that she heard Gomez and Chavez speak to each other. Chavez testified that she locked the
door, that Gomez hit and kicked the door, and that he went around to a patio and broke a window and
entered through the window.
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knocking on the walls” and Chavez crying, and Melendez called the police. Id.
at 31. Gomez exited the house and said he did not want to see Melendez in his
home, and Melendez said okay. The woman in the truck lost sight of Gomez
for at most three minutes.6 At some point, Chavez tried to shut the door and
Gomez placed his foot on the door to keep it open. The police arrived about
three minutes after Gomez opened the door, and they walked up to the
residence, found the door open, and observed both Gomez and Chavez right by
the front door. Chavez was crying, disheveled, and distraught while Gomez
was calm.
[7] On June 22, 2015, the State charged Gomez with four counts of domestic
battery as class A misdemeanors and four counts of battery resulting in bodily
injury as class A misdemeanors. The court held a bench trial at which Chavez
testified that she was not represented by an attorney in her divorce proceeding,
that she did not know English, and that she had not read the December 16,
2014 preliminary order. The court found Gomez guilty of three counts of
domestic battery as class A misdemeanors, Counts II, III, and IV,7 and found
6
When asked “did you lose sight of [] Gomez,” the woman in the truck answered “[f]or a little while because
[Chavez] closed the door,” and when asked “you said a little while. How long was the door shut before it
opened again,” the woman testified “[i]t was like three – could be minutes, seconds. It wasn’t a long time.”
Transcript at 52-53. When later asked, “after [Gomez] went inside, the door shut for maybe three seconds to
three minutes,” the renter responded affirmatively. Id. at 53.
7
The State alleged in Count II:
On or about June 21, 2015, Ariel Gomez did knowingly touch [Chavez], who is or was
the spouse of Ariel Gomez, . . . in a rude, insolent, or angry manner, to wit: grabbed, and
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him not guilty of the remaining charges, and sentenced him to 365 days with
359 days suspended to probation on each count to be served concurrently.
Discussion
I.
[8] The first issue is whether the evidence is sufficient to support Gomez’s
convictions. When reviewing the sufficiency of the evidence to support a
conviction, we must consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). We do not assess witness credibility or reweigh the evidence. Id. We
consider conflicting evidence most favorably to the trial court’s ruling. Id. We
affirm the conviction unless “no reasonable fact-finder could find the elements
of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State,
further said touching resulting in bodily injury to the other person, specifically scratch
mark(s)[.]
Appellant’s Appendix at 19. In Count III, the State alleged:
On or about June 21, 2015, Ariel Gomez did knowingly touch [Chavez], who is or was
the spouse of Ariel Gomez, . . . in a rude, insolent, or angry manner, to wit: slammed
[Chavez] into a wall, and further said touching resulting in bodily injury to the other
person, specifically cut(s)[.]
Id. In Count IV, the State alleged:
On or about June 21, 2015, Ariel Gomez did knowingly touch [Chavez], who is or was
the spouse of Ariel Gomez, . . . in a rude, insolent, or angry manner, to wit: pulled
[Chavez’s] hair, and further said touching resulting in bodily injury to the other person,
specifically pain[.]
Id.
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726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. at 147. The evidence
is sufficient if an inference may reasonably be drawn from it to support the
verdict. Id.
[9] Ind. Code § 35-42-2-1.3(a) provides that “[a] person who knowingly or
intentionally touches an individual who: (1) is or was a spouse of the other
person . . . in a rude, insolent, or angry manner that results in bodily injury to
the person described in subdivision (1) . . . commits domestic battery, a Class A
misdemeanor.”
[10] Gomez asserts that the State did not negate his claim of defense of property and
therefore his convictions must be reversed. He argues that he had been given
the right to the property in the preliminary order from the divorce court, that
the court did not award the Rochester Property to Chavez until days after the
incident, that Chavez went to the property to keep a renter out and to change
the locks and hid the man who was changing the locks by telling him to go
around the block, that the entire episode lasted under three minutes and Chavez
claims she received the scratches and bruises while Gomez was trying to push
her out of the home, and that “[p]ushing [Chavez] out when she refused to
leave was a legally acceptable option.” Appellant’s Brief at 12. He also asserts
that “[w]hile it may be preferred that the authorities are called in such a
situation, the same argument can be extended to taking the steps to change the
locks on a property the person has no right to possess,” that “[r]emoving
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[Chavez] so the renters could enter was a reasonable option when she refused to
leave,” and “[t]hat [Chavez’s] injuries were minor demonstrates that the force
exerted by [him] in trying to extract [her] from his property was reasonable in
light of the urgency of the situation.” Id. at 12.
[11] The State maintains that there was no clear evidence that Chavez was a
trespasser or that Gomez’s actions were reasonable. It argues that the
Rochester Property was still, at least in part, in Chavez’s name, that Chavez
understood that she was in possession of the house, which was formally decreed
three days later, and that the preliminary order did not necessarily mean that
Gomez was granted exclusive possession of the property but only that he could
possess the rents from the property. The State also argues that Gomez’s actions
were not reasonable because he had several options beyond physically attacking
Chavez and that Chavez’s injuries demonstrate that Gomez attempted to use
far more force than was reasonably necessary under the circumstances.
[12] A claim of defense of property is analogous to the defense of self-defense. Hanic
v. State, 406 N.E.2d 335, 339 (Ind. Ct. App. 1980). Ind. Code § 35-41-3-2
provides in part:
(d) A person:
(1) is justified in using reasonable force, including
deadly force, against any other person; and
(2) does not have a duty to retreat;
Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016 Page 8 of 16
if the person reasonably believes that the force is necessary
to prevent or terminate the other person’s unlawful entry
of or attack on the person’s dwelling, curtilage, or
occupied motor vehicle.
(e) With respect to property other than a dwelling, curtilage,
or an occupied motor vehicle, a person is justified in using
reasonable force against any other person if the person
reasonably believes that the force is necessary to
immediately prevent or terminate the other person’s
trespass on or criminal interference with property lawfully
in the person’s possession, lawfully in possession of a
member of the person’s immediate family, or belonging to
a person whose property the person has authority to
protect. . . .
[13] The State must disprove at least one element of the defense beyond a reasonable
doubt. Nantz v. State, 740 N.E.2d 1276, 1280 (Ind. Ct. App. 2001), trans. denied.
It is the factfinder’s decision to determine whether a claim of self-defense has
been disproved. Id. Consequently, to establish his defense of property defense,
Gomez was required to prove that he used reasonable force to prevent or
terminate a trespass or to defend his property or property he was authorized to
protect. See id. Any force employed must be reasonable in light of “the urgency
of the situation.” Cf. Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012),
trans. denied.
[14] The record reveals that the preliminary order granted Gomez temporary
possession of rental property rents, that the Rochester Property was jointly
titled, and that Chavez testified that her understanding after the final dissolution
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hearing was that the dissolution court had granted her possession of the
Rochester Property. She testified that, when she learned that a tenant was
moving to the Rochester Property and that she would have “to wait until the
contract expired to be able to take over the house,”8 Transcript at 10, she went
with Melendez to change the locks. When Gomez became aware of this, he
entered the Rochester Property, grabbed Chavez by the hair, pushed her, and
pushed her against the kitchen wall, resulting in scratch marks on Chavez’s arm
and a cut on her elbow. The evidence supports the conclusion that the force
used by Gomez was unreasonable in light of the urgency of the situation and
unreasonable to protect any alleged interest he may have had in the rents from
the Rochester Property.9
[15] Based upon the record, we conclude that the trial court as the trier of fact could
find beyond a reasonable doubt that the State disproved an element of Gomez’s
defense of property claim and that he committed the offenses of domestic
battery as class A misdemeanors. See Nantz, 740 N.E.2d at 1281 (concluding
8
Although the record does not contain a transcript of the May 16, 2015 dissolution hearing, the court’s June
24, 2015 dissolution decree awarded Chavez “immediate possession of the Rochester Property, subject to the
current lease.” Exhibits at 17. Meanwhile, Gomez entered into a residential lease with a tenant for a year-
long term which began on June 20, 2015, and expired on June 20, 2016.
9
The term of the residential lease began on June 20, 2015, and the decree ordering that Chavez shall be
entitled to the rental proceeds for the Rochester Property was issued on June 24, 2015, and thus Gomez had
an interest, at most, in four days’ worth of rental income from the Rochester Property.
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that the defendant’s conduct of pointing a firearm constituted unreasonable
force to protect his alleged property interest in a bulldozer).
II.
[16] The next issue is whether Gomez’s three convictions for domestic battery as
class A misdemeanors violate the continuous crime doctrine. Gomez argues
that he and Chavez “were engaged in a three minute tussle as Gomez sought to
terminate her illegal entry into his property,” that “[e]ach step did not constitute
a separate act of battery, but was a whole act of pulling her hair and engaging in
an effort to remove her from the house, knocking into walls as they headed for
the door,” and that, “[i]f [he] committed domestic battery as charged, it was
one instance of battery, and the injuries were the product of the one continuous
act.” Appellant’s Brief at 15. He further argues that Chavez “answered
positively when asked whether he was continuing to try to get her out of the
house while she was resisting getting pushed out of the house.” Id. He also
contends that he “should not have been charged for every scrape and bruise
resulting from their tussle” and that two of his convictions should be vacated.
Id.
[17] The State asserts that it is not clear that Gomez’s actions were so connected as
to constitute a single uninterrupted transaction. It argues that, “while Gomez
attempted to shove Chavez out of the house, which resulted in her arms being
scratched” there “seemed to be other actions that were more malicious than
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connected to the purpose of forcing her out of the home,” namely, “[f]irst,
Gomez pulled Chavez’s hair” and “[l]ater, he repeatedly banged her against the
wall, which cut her arm.” Appellee’s Brief at 18.
[18] The continuous crime doctrine defines those instances where a defendant’s
conduct amounts only to a single chargeable crime and prevents the State from
charging a defendant twice for the same continuous offense. Koch v. State, 952
N.E.2d 359, 373 (Ind. Ct. App. 2011), trans. denied. The doctrine “essentially
provides that actions that are sufficient in themselves to constitute separate
criminal offenses may be so compressed in terms of time, place, singleness of
purpose, and continuity of action as to constitute a single transaction.” Id.
(citation omitted). The continuous crime doctrine does not seek to reconcile
the double jeopardy implications of two distinct chargeable crimes; rather, it
defines those instances where a defendant’s conduct amounts only to a single
chargeable crime. Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015) (citing Pierce
v. State, 761 N.E.2d 826, 830 (Ind. 2002) (recognizing “a series of rules of
statutory construction and common law that are often described as double
jeopardy, but are not governed by the constitutional test set forth in
Richardson”)).10 The continuous crime doctrine requires a fact-sensitive
10
In Richardson v. State, the Indiana Supreme Court examined the double jeopardy clause of the Indiana
Constitution and explained in part that “two or more 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.”
Hines, 30 N.E.3d at 1221 (citing Richardson, 717 N.E.2d 32, 49 (Ind. 1999)).
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analysis. Chavez v. State, 988 N.E.2d 1226, 1229 (Ind. Ct. App. 2013), trans.
denied. We turn to whether Gomez’s actions of grabbing Chavez, slamming her
into a wall, and pulling her hair, which are actions sufficient in themselves to
constitute separate criminal offenses, on the evidence of this case as presented
by the State at trial, are “so compressed in terms of time, place, singleness of
purpose, and continuity of action as to constitute a single transaction.” See
Koch, 952 N.E.2d at 373.
[19] The evidence shows that the woman in the truck called Gomez on the phone
and he arrived at the Rochester Property about ten minutes later. With respect
to her altercation with Gomez, Chavez testified as follows:
A (Interpreter:) . . . . When he got in, he grabbed me by the
hair, he tried to get me out of the house. I couldn’t and I
didn’t want to get out of the house.
Q And how was he trying to get you out of the house?
A (Interpreter:) From my hair, pushing me.
Q So he’s trying to get you out of the house and were you
resisting getting pushed out of the house?
A (Interpreter:) Yes.
Q And then what happens after that?
A (Interpreter:) He insulted me verbally. He told me that I
was going out with the son of my friend, that I was a
prostitute, and that I needed to get out of the house.
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Q And so during this time was he still trying to push you out
of the home?
A (Interpreter:) Yes. Several times he pushed me against the
wall of the kitchen strongly.
Q And did this result in any type of injury on you at the
time?
A (Interpreter:) The hair and then some bruises and
scratches.
Q So he hit you against the wall a couple of times --
A (Interpreter:) Yes.
Q -- and then what happened after that?
A (Interpreter:) The police arrived. He let me go and went
out through the door.
Transcript at 12-13. The woman in the truck testified that she lost sight of
Gomez inside the house for a period of at most three minutes, which is
consistent with the testimony that Melendez left the property immediately after
the woman in the truck called Gomez, that Gomez arrived at the property
about ten minutes after the woman called him, and that Melendez returned to
the property about fifteen minutes after he had left, or about five minutes after
Gomez arrived at the property. The deputy prosecutor argued in closing that
Gomez “forcibly tries to take her out by her hair. When she resists – because in
her mind this was her rightful home – he then slams her into the wall two to
three times, if not more, before he finally stops when the police arrive” and that
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“[t]hree minutes is plenty of time for someone to bang another person around
against a wall and cause the injuries that Ms. Chavez had.” Id. at 60-61.
[20] Based upon the record and considering Chavez’s testimony describing Gomez’s
acts while trying to push her out of the house, we conclude that the acts alleged
in Counts II, III, and IV were sufficiently compressed in terms of time, place,
singleness of purpose, and continuity of action so as to constitute a single
transaction for purposes of the continuous crime doctrine. See Duvall v. State,
978 N.E.2d 417, 428 (Ind. Ct. App. 2012) (noting that the defendant’s
convictions for insurance fraud stemmed from six false statements given in a
single insurance investigation interview, that her three convictions for
obstruction of justice stemmed from a single crime scene clean-up in which she
removed an alcohol bottle, medication container, and foam from the victim’s
mouth, and that the defendant’s conduct was continuous so as to constitute one
offense of insurance fraud and one offense of obstruction of justice), trans.
denied; see also Chavez, 988 N.E.2d at 1229 (holding that the defendant
committed two chargeable acts of child molesting rather than five and noting
that three of the acts occurred during a first encounter between the defendant
and the victim and two of the acts occurred during a second encounter). Cf.
Hines, 30 N.E.3d at 1220-1221 (holding the continuous crime doctrine did not
apply to the facts of the case and noting the defendant was not convicted of
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multiple charges of charges of battery). Accordingly, we reverse Gomez’s
convictions on Counts III and IV.11
Conclusion
[21] For the foregoing reasons, we affirm Gomez’s conviction for domestic battery
as a class A misdemeanor on Count II and reverse his convictions on Counts III
and IV.
[22] Affirmed in part and reversed in part.
Baker, J., and May, J., concur.
11
Gomez also argues his multiple convictions violate double jeopardy. Because we reverse Counts III and
IV based on the continuous crime doctrine, we need not address Gomez’s double jeopardy arguments.
Gomez’s aggregate sentence will not be affected by the reversal of his convictions on Counts III and IV as the
trial court ordered concurrent sentences.
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