FILED
Jul 29 2016, 9:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamel Owens, July 29, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1601-CR-41
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1509-F6-32725
Pyle, Judge.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016 Page 1 of 8
Statement of the Case
[1] Jamel Owens (“Owens”) appeals, following a bench trial, his convictions for
Level 6 felony criminal recklessness 1 and Level 6 felony battery in the presence
of a child.2 Owens argues, and the State concedes, that these convictions
violate the Indiana Constitutional prohibition against double jeopardy. The
parties, however, disagree on which of the two convictions should be vacated.
Here, the trial court sentenced Owens to the same sentence on each conviction,
but it also entered a domestic violence determination based on his battery
conviction. Because the Level 6 felony criminal recklessness has the less severe
penal consequences, we reverse and remand to the trial court to vacate Owens’s
Level 6 felony criminal recklessness conviction.
[2] We reverse and remand.
Issue
Whether Owens’s convictions violate the Indiana Constitutional
prohibition against double jeopardy.
Facts
[3] In September 2015, Owens was married to and lived with Candace Owens
(“Candace”). Twelve-year-old, J.D., of whom Candace had legal custody, also
1
IND. CODE § 35-42-2-2.
2
I.C. § 35-42-2-1. Owens was also convicted of Level 6 felony intimidation but does not challenge this
conviction.
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lived with them. On September 3, 2015, upon Candace’s return home from
work, Owens got angry with Candace and questioned her about why it took her
so long to get home. The two argued, and then Candace left the house and
drove away. Owens phoned her, asked her where she was going, accused her
of driving too fast, and told her to return home. Candace went back home, and
Owens asked her why she was driving so fast and stated that she “could have
put [her] life in danger.” (Tr. 11). The two again argued, and J.D. was in the
house near where they were arguing. Owens then walked out to the garage,
returned with a bottle of lighter fluid, and “sprayed it [on Candace] from the
waist down.” (Tr. 14). Owens “then pulled out a lighter and said, ‘Since you
don’t care about your life, . . . then why should I?’” (Tr. 16). As he held up the
lighter, Candace asked, “‘So you’re really going to light me on fire? You’re
really going to do this?’” (Tr. 16). Owens “stood there for a minute” and then
walked back to the garage. (Tr. 16). When he returned to the house, Owens
told Candace that he was not going to “light [her] on fire” and that he “really
wanted to scare” her. (Tr. 16). Candace reported Owens’s actions to police
one week later.
[4] The State charged Owens with Count 1, Level 6 felony criminal recklessness;
Count 2, Level 6 felony intimidation; Count 3, Level 6 felony battery; and
Count 4, Class B misdemeanor battery. The trial court held a bench trial on
December 16, 2015. Candace and J.D. testified regarding Owens’s actions,
including his act of throwing lighter fluid on Candace, on September 3. Owens
testified on his own behalf and denied that he had thrown lighter fluid on or
Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016 Page 3 of 8
had threatened Candace. During closing arguments, the State argued that the
evidence that Owens poured lighter fluid on Candace supported his convictions
for Level 6 felony criminal recklessness and Level 6 felony battery. The trial
court found Owens guilty as charged.3
[5] The trial court held the sentencing hearing immediately after the bench trial.
During the hearing, Candace testified that this was the fourth or fifth incident of
domestic violence with Owens. She also testified that she had a no-contact
order against Owens and that he had violated it during the pendency of this
case when he contacted her and told her that he would not contest their divorce
if she dropped this case against him. The trial court merged the Class B
misdemeanor battery conviction into the Level 6 felony battery conviction and
sentenced Owen on the remaining three convictions. For all three of Owens’s
Level 6 felony convictions, the trial court imposed two (2) year suspended
sentences to be served on probation and ordered that these sentences be served
concurrently. The trial court also ordered Owens to have no contact with
Candace or J.D., and it ordered him to participate in domestic violence
counseling. Additionally, the trial court entered a domestic violence
determination pursuant to INDIANA CODE § 35-38-1-7.7 and informed Owens
3
The trial court initially stated that it was entering a judgment of conviction on all counts. However, the
sentencing order and chronological case summary indicate only that the Class B misdemeanor battery
conviction was merged with the Level 6 felony battery conviction, and they do not indicate that a judgment
of conviction was otherwise entered on Class B misdemeanor battery.
Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016 Page 4 of 8
that he was, therefore, prohibited him from possessing a firearm and
ammunition. Owens now appeals.
Decision
[6] Owens argues, and the State concedes, that his convictions for Level 6 felony
criminal recklessness and Level 6 felony battery in the presence of a child
violate the Indiana Constitutional prohibition against double jeopardy, either
under the actual evidence test or the common law prohibition against multiple
convictions for the very same act. The parties, however, disagree on how to
remedy the double jeopardy violation. Owens requests that we vacate his Level
6 felony battery in the presence of a child conviction, and the State requests that
we vacate Owens’s Level 6 felony criminal recklessness conviction.4
[7] Our Indiana Supreme Court has explained:
When two convictions are found to contravene 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. If it will not, one
of the convictions must be vacated. In the interest of efficient
judicial administration, the trial court need not undertake a full
sentencing reevaluation, but rather the reviewing court will make
4
Owens argues that we should instruct the trial court to vacate his Level 6 felony battery in the presence of a
child conviction because it is the later listed charge in his charging information. The State, on the other
hand, argues that we should instruct the trial court to vacate the Level 6 felony criminal recklessness
conviction because the legislature has passed “special protection for battery victims” by allowing the State to
charge a person with an enhanced level of battery based on a prior conviction. (State’s Br. 7).
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this determination itself, being mindful of the penal consequences
that the trial court found appropriate.
Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999) (citation omitted). The
Richardson Court explained that when both convictions cannot stand, an
appellate court should “vacate the conviction with the less severe penal
consequences[.]” Id.
[8] Here, Owens’s two convictions at issue are both Level 6 felonies, and the trial
court entered the same two (2) year suspended sentence for each. The parties
do not dispute that reducing the convictions to a less serious form will not cure
the double jeopardy violation. The parties, however, do not discuss the fact
that the trial court entered a domestic violence determination pursuant to
INDIANA CODE § 35-38-1-7.7.
[9] INDIANA CODE § 35-38-1-7.7 requires a trial court to determine, at sentencing,
whether a person has committed a crime of domestic violence. INDIANA CODE
§ 35-31.5-2-78 defines a crime of domestic violence as follows:
“Crime of domestic violence” . . . means an offense or the
attempt to commit an offense that:
(1) has as an element the:
(A) use of physical force; or
(B) threatened use of a deadly weapon; and
(2) is committed against a:
(A) current or former spouse, parent, or guardian of the
defendant;
Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016 Page 6 of 8
(B) person with whom the defendant shared a child in
common;
(C) person who was cohabiting with or had cohabited with
the defendant as a spouse, parent, or guardian; or
(D) person who was or had been similarly situated to a
spouse, parent, or guardian of the defendant.
[10] At sentencing, the trial court entered a domestic violence determination, which
was apparently based on Owens’s battery conviction, and informed Owens that
he was, therefore, prohibited from possessing a firearm and ammunition. Thus,
Owens’s Level 6 felony battery conviction has a more severe penal consequence
than his Level 6 felony criminal recklessness conviction. 5 Based on the
undisputed double jeopardy violation and “being mindful of the penal
consequences that the trial court found appropriate” in this case, we, therefore,
reverse Owens’s conviction for Level 6 felony criminal recklessness conviction
and remand to the trial court to vacate this conviction. See Richardson, 717
N.E.2d at 54 (explaining that when determining which conviction must be
vacated upon a double jeopardy violation, our Court should be “mindful of the
penal consequences that the trial court found appropriate” and should vacate
the conviction with the less severe penal consequence).
5
We recognize that our Indiana Supreme Court has determined that the domestic violence determination
statute, INDIANA CODE § 35-38-1-7.7, is “nonpunitive” for the purposes of a Sixth Amendment right to jury
trial under Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied. See Hitch v. State, 51 N.E.3d 216, 225 (Ind.
2016).
Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016 Page 7 of 8
[11] Reversed and remanded with instructions.
Bradford, J., and Altice, J., concur.
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