MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 01 2016, 9:39 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Damon Hohman, November 1, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1603-CR-442
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G03-1507-F1-24667
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Damon Hohman was convicted of, inter alia, criminal
confinement as a Level 3 felony and battery by means of a deadly weapon as a
Level 5 felony. On appeal, Hohman challenges his convictions for criminal
confinement and battery by means of a deadly weapon, raising two issues for
our review: (1) whether the evidence is sufficient to sustain these convictions,
and (2) whether these convictions violate the prohibition against double
jeopardy. Concluding the evidence is sufficient and Hohman’s convictions do
not violate the prohibition against double jeopardy, we affirm.
Facts and Procedural History
[2] In 2011, Hohman and Ann McDowell began dating and eventually had one
child together. In May 2014, the couple ended their relationship. By December
2014, McDowell was dating Marlan King. On December 9, 2014, King and
McDowell went on a date and did not return to McDowell’s home until two in
the morning. Not long after they arrived, they began arguing, so King returned
to his home and McDowell went to bed.
[3] At some point after McDowell fell asleep, she awoke to a man on top of her
inserting his penis inside of her. McDowell initially thought the man was King
but then opened her eyes and realized it was Hohman. Hohman had pinned
her to the bed so she could not move and threatened her with a knife she
recognized from a set of knives from her kitchen. When McDowell put her
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hands to her face and began crying, she discovered she had been cut on her
hand while sleeping and was bleeding. Hohman said he had to cut her because
she “wouldn’t stop moving.” Transcript at 416.
[4] Eventually, Hohman allowed McDowell to enter the bathroom to get dressed.
The two began arguing. Hohman then slapped McDowell in the face and
ordered her to return to the bed. McDowell slammed the bathroom door shut,
escaped through the second-floor bathroom window, and ran to a neighbor’s
house. Hohman fled the scene. The police were called and Hohman was later
arrested. A search of McDowell’s home found a knife from her knife set was
missing, but the knife used in the attack was never recovered.
[5] The State charged Hohman with rape as a Level 1 felony, burglary as a Level 2
felony, criminal confinement as a Level 3 felony, battery by means of a deadly
weapon as a Level 5 felony, domestic battery as a Level 6 felony, battery
resulting in bodily injury as a Class A misdemeanor, and invasion of privacy as
a Class A misdemeanor. In August 2015, a jury found Hohman not guilty of
burglary and guilty of domestic battery, Class A misdemeanor battery, and
invasion of privacy. The jury reached an impasse as to the rape, criminal
confinement, and battery by means of a deadly weapon charges, and a second
jury trial was held in January 2016 as to those counts. The jury found Hohman
not guilty of rape, but guilty of criminal confinement and battery by means of a
deadly weapon. Hohman now appeals only his convictions for criminal
confinement and battery by means of a deadly weapon.
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Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
[6] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh
the evidence nor reassess the credibility of witnesses. Id. We will affirm a
conviction unless “no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. at 146-47 (citation omitted).
B. Use of a Deadly Weapon
[7] Hohman argues the evidence is insufficient to support his convictions for
criminal confinement and battery by means of a deadly weapon. The State
charged Hohman with criminal confinement as a Level 3 felony, alleging he
committed the offense while armed with a deadly weapon. Indiana Code
section 35-42-3-3(a) states a person who knowingly or intentionally confines
another person without the other person’s consent commits criminal
confinement as a Level 6 felony. The crime is elevated to a Level 3 felony if the
offense is committed while armed with a deadly weapon. Ind. Code § 35-42-3-
3(b)(2)(A). The State also charged Hohman with battery by means of a deadly
weapon as a Level 5 felony. Indiana Code section 35-42-2-1(c) states a person
who knowingly or intentionally touches another person in a rude, insolent, or
angry manner commits battery as a Class B misdemeanor. The crime is
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elevated to a Level 5 felony if the offense is committed with a deadly weapon.
Ind. Code § 35-42-2-1(g)(2).
[8] The crux of Hohman’s argument is that, because law enforcement did not find
the knife, coupled with his contention McDowell’s testimony is unreliable,
there is a reasonable possibility no knife was actually used in the commission of
these crimes. Such an argument invites us to reweigh the evidence and reassess
witness credibility, which we will not do. Drane, 867 N.E.2d at 146. The
evidence establishes McDowell awoke to Hohman on top of her, pinning her to
the bed so she was unable to move, and threatening her with a knife. In
addition, McDowell discovered she had been cut on her hand while she slept.
Hohman admitted to cutting her. Moreover, McDowell recognized the knife
Hohman used as a knife from a knife set in her kitchen. We acknowledge
McDowell does not remember being cut and only discovered the wound after
waking up, but note the evidence supporting the verdict gives rise to a
reasonable inference that Hohman cut McDowell’s hand with a knife. We also
acknowledge the missing knife from McDowell’s knife set was never
discovered, but again, the evidence gives rise to a reasonable inference that
Hohman used that knife in the commission of these offenses and then disposed
of it. In sum, the evidence and reasonable inferences arising therefrom establish
Hohman committed criminal confinement as a Level 3 felony and battery by
means of a deadly weapon as a Level 5 felony.
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II. Double Jeopardy
[9] Hohman argues his convictions for criminal confinement and battery by means
of a deadly weapon violate the state constitutional prohibition against
double jeopardy in that the same evidence was used to convict him of both
counts. Article 1, Section 14 of the Indiana Constitution provides, “No person
shall be put in jeopardy twice for the same offense.”
[T]wo or more offenses are the ‘same offense’ in violation
of Article 1, Section 14 of the Indiana Constitution, 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.
Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in
original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We
review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766
(Ind. Ct. App. 2015).
[10] Specifically, Hohman contends his convictions violate the actual evidence test.
In evaluating two convictions under this test:
[W]e examine the actual evidence presented at trial in order to
determine whether each challenged offense was established by
separate and distinct facts. 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.
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Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal
quotation marks omitted). The actual evidence test is applied to all the
elements of both offenses. Id. “In other words, under the Richardson actual
evidence test, the Indiana Double Jeopardy Clause is not violated 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.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).
[11] Determining whether there is a reasonable possibility the jury used the same
evidentiary facts to reach two convictions “requires substantially more than a
logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “We
evaluate the evidence from the jury’s perspective and may consider the charging
information, jury instructions, and arguments of counsel.” Garrett, 992 N.E.2d
at 720. Ultimately, if we find the jury “may have latched on to exactly the
same facts for both convictions[,]” then a double jeopardy violation is
present. Id. (citation omitted).
[12] We see no violation of the double jeopardy clause here. The evidence
supporting Hohman’s criminal confinement conviction is that when McDowell
woke up, Hohman was on top of her, brandishing a knife, threatening her, and
pinning her to the bed. McDowell could not move and did not consent to
Hohman’s acts. The evidence supporting Hohman’s battery conviction is that
he cut McDowell’s hand with a knife while she slept. We conclude there is not
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a reasonable possibility the jury relied on the same evidentiary facts to find
Hohman guilty of both offenses. 1
Conclusion
[13] The evidence is sufficient to sustain Hohman’s convictions of criminal
confinement and battery by means of a deadly weapon and the two convictions
do not violate the prohibition against double jeopardy. Accordingly, we affirm.
[14] Affirmed.
Mathias, J., and Brown, J., concur.
1
We further note, apart from the tests set forth above, Indiana courts have “long adhered to 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.” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Among
these rules is the rule that precludes a conviction and punishment for an enhancement of a crime where the
enhancement is imposed for the very same behavior or harm as another crime for which the defendant has
been convicted and punished. Sistrunk v. State, 36 N.E.3d 1051, 1053-54 (Ind. 2015). Here, Hohman was
convicted of two elevated felony offenses because he committed both offenses while armed with a deadly
weapon. Our supreme court has made clear Indiana “jurisprudence teaches that committing two or more
separate offenses each while armed with a deadly weapon—even the same weapon—is not within the
category of rules precluding the enhancement of each offense based on ‘the very same behavior.’” Id. at
1054; see also Gates v. State, 759 N.E.2d 631, 633 n.2 (Ind. 2001) (“It is well established in Indiana that the use
of a single deadly weapon during the commission of separate offenses may enhance the level of each
offense.”). To the extent Hohman argues his convictions violate the above rule, we conclude such an
argument fails.
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