MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Sep 21 2016, 8:35 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald C. Newlin, September 21, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1603-CR-493
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.
49G17-1509-F5-34476
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Donald C. Newlin (Newlin), appeals his conviction for
confinement, a Level 5 felony, Ind. Code § 35-42-3-3(a); battery with moderate
bodily injury, a Level 6 felony, I.C. § 35-42-2-1(b)(1); and domestic battery, as a
Class A misdemeanor, I.C. § 35-42-2-1.3(a).
[2] We reverse and remand with instructions.
ISSUE
[3] Newlin raises one issue on appeal, which we restate as follows: Whether his
conviction for criminal confinement and battery with moderate bodily injury
violated Indiana’s prohibition against double jeopardy.
FACTS AND PROCEDURAL HISTORY
[4] In September 2015, Newlin and Virginia Suter (Suter) had been in a romantic
relationship for approximately six months, and had been living together with
Suter’s thirteen-month-old son in Suter’s residence for the past month. On
September 27, 2015, Suter and her son returned home from a trip to the park at
around 6:00 p.m. Newlin came home about half an hour later; he was
intoxicated. He wanted to talk about moving out of Suter’s home, which had
been an ongoing conversation between the couple. This discussion continued
until Suter’s son went to bed around 9:30 p.m. After Suter had put her son to
bed, Newlin started following Suter around the house. Because she “had a
feeling that something bad was going to happen,” Suter hid her cell phone in
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the trash can in the master bathroom. (Transcript pp. 29-30). The conversation
became “heated” and Suter went into the master bedroom, locked the door and
then went into the bathroom and locked the door. (Tr. p. 30). A little later,
Suter heard a crash coming from the bedroom door. Not wanting to incur more
property damage after Newlin had kicked in the bedroom door, Suter unlocked
the bathroom door and exited. Newlin, who had entered the bedroom, spat on
Suter and attempted to grab her arms. In an attempt to throw her arms away
from Newlin’s grasp, Suter hit Newlin in the mouth. Newlin responded, “[I]t’s
on bitch.” (Tr. p. 31).
[5] Newlin grabbed Suter and pushed her backwards into the bathroom. Suter
pulled down a towel rack and Newlin pushed her into the bathtub. Falling
backwards, Suter grabbed Newlin’s shirt and pulled him into the bathtub with
her. They were face to face with Newlin on top of Suter.
[6] After Newlin got up out of the bathtub, Suter rolled onto her stomach and
pushed herself out of the bathtub. When she stood up, Newlin grabbed her by
the shoulders and pushed her down to the floor. As Suter lay on her back,
facing the ceiling, Newlin “put all his weight on [her] face with his foot,”
causing her “[e]xtreme pain.” (Tr. p. 34). Newlin picked up his foot and
stomped on her face. Suter suffered a scratch, a large bruise across her nose and
left side of her face, and discovered that her nose was bleeding. When Newlin
released his weight off of Suter, she was able to roll over on her stomach and
started to get up. Newlin then pushed her back down with his foot on the back
of her head, causing a “very large” “goose egg” to form. (Tr. p. 36). He then
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stomped on the back of Suter’s head as he had done on her face. Eventually,
Suter managed to get up onto her knees and grab a towel to try to stop her nose
bleed. While she was kneeling, Newlin turned toward her and kicked Suter
three to four times in the buttocks. The resulting bruise was approximately ten
inches round and “extremely painful.” (Tr. p. 37).
[7] Despite her pain, Suter wanted to see “how bad he [had] injured [her] nose,”
but Newlin told her that “it didn’t matter what [her] face look[ed] like cause he
was going to kill [her] anyway.” (Tr. p. 37). Newlin continued blocking the
bathroom doorway and would not let Suter exit. In an effort to calm Newlin
down, Suter changed the subject to needing to fix the towel bar. Newlin
allowed Suter to go to the garage, while he remained beside her, to get a
screwdriver to make the repair.
[8] At that moment, the alarm on Suter’s phone, which was in the bathroom trash
can, went off. After Suter explained that it was a reminder to pay the water bill,
Newlin allowed Suter to go to the kitchen to pay the water bill by phone.
Newlin followed her and was pacing back and forth ranting “about something.”
(Tr. p. 40). When she had paid the bill, Suter placed the phone in her back
pocket and persuaded Newlin to take the dogs outside while she went in the
garage to get their dog food. When Suter was in the garage, she texted “911” to
her son’s father and put the phone in the dog food bag. (Tr. p. 40).
[9] Approximately one and a half hours later, two officers with the Indianapolis
Metropolitan Police Department arrived. Newlin opened the door and assured
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them everything was fine. Newlin allowed the officers to enter the house.
While one officer took Newlin outside, the other officer spoke with Suter. Suter
had blood on her shirt, bruising on her face and arms, dried blood on the inside
of her nose, and a hematoma on the back of her head. Newlin denied anything
had happened.
[10] On September 30, 2015, the State filed an Information, charging Newlin, as
amended, with criminal confinement, a Level 5 felony; battery with moderate
bodily injury, a Level 6 felony; and domestic battery as a Class A misdemeanor,
which was elevated to a Level 6 felony based on a prior domestic battery
conviction. On December 10, 2015, a jury trial was conducted. Prior to the
start of the trial, the State dismissed the domestic battery enhancement based on
a prior domestic battery conviction. At the close of the evidence, the jury found
Newlin guilty as charged. On January 7, 2016, the trial court sentenced Newlin
to three years executed for criminal confinement, 365 days for battery with
moderate bodily injury, and 365 days for domestic battery as a Class A
misdemeanor. The trial court ordered the sentences to run concurrently.
[11] Newlin now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[12] Newlin contends that the trial court violated Indiana’s prohibition against
double jeopardy by imposing a conviction for both criminal confinement and
battery with moderate bodily injury even though there was a reasonable
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probability that the jury relied on the same actual evidence to convict him of
both offenses.
[13] The Double Jeopardy Clause of the Indiana Constitution provides in part: “No
person shall be put in jeopardy twice of the same offense.” Ind. Const. art. 1, §
14. 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.” Sloan v. State, 947 N.E.2d
917, 924 (Ind. 2011) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.
1999)). Newlin’s argument rests on the actual-evidence test: “dual convictions
cannot stand if a defendant ‘demonstrate[s] a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the elements of one offense
may also have been used to establish the essential elements of a second
challenged offense.” Id. (quoting Wise v. State, 719 N.E.2d 1192, 1201 (Ind.
1999)). However, there is no double jeopardy violation “when 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)). Application of the
actual-evidence test requires a reviewing court to look at the evidence presented
at trial and decide whether each challenged offense was established by separate,
distinct facts. Id.
[14] Newlin argues—and the State agrees—that his conviction for criminal
confinement and battery with moderate bodily injury are both based on the
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same injury and thus violate the same evidence test of the double jeopardy
clause. The charging information for Level 5 criminal confinement stated, in
pertinent part, “[Newlin] did knowingly confine [Suter] without the consent of
[Suter], said act resulting in bodily injury to [Suter], to wit: pain and/or
bruising to [Suter].” (Appellant’s App. Vol. II, p. 42). Likewise, the charging
information for Level 6 felony battery resulting in moderate bodily injury
stated, in pertinent part, “[Newlin] did knowingly or intentionally touch [Suter]
in a rude, insolent, or angry manner, resulting in moderate bodily injury to the
other person, specifically moderate pain and/or bruising and/or temporal loss
of full range of motion in arm.” (Appellant’s App. Vol. II, p. 42). In its closing
argument, the State used the same injuries to support both convictions.
Therefore, Newlin and the State conclude that there is a reasonable probability
that the jury relied on the same evidence to find the essential elements of
confinement and battery with moderate bodily injury. We agree. Thus, we
reverse and remand to the trial court with instruction to vacate Newlin’s
conviction for battery with moderate bodily injury, a Level 6 felony. 1
CONCLUSION
1
Because Newlin was sentenced to concurrent sentences, his aggregate sentence is not affected by the
vacation of his battery conviction. Accordingly, no sentencing hearing must be conducted.
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[15] Based on the foregoing, we conclude that the trial court violated Indiana’s
prohibition against double jeopardy and order the trial court to vacate Newlin’s
conviction for battery with moderate bodily injury, a Level 6 felony.
[16] Reversed and remanded with instructions.
[17] Bailey, J. and Barnes, J. concur
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Donald C. Newlin v. State of Indiana (mem. dec.)
Combined Opinion