FILED
Sep 08 2017, 7:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana Katherine Modesitt Cooper
Deputy Attorney General
Andrew Achey Indianapolis, Indiana
Logansport, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Thompson, September 8, 2017
Appellant-Defendant, Court of Appeals Case No.
09A04-1611-CR-2582
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard
Appellee-Plaintiff Maughmer, Judge
Trial Court Cause No.
09D02-1510-F5-89
May, Judge.
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 1 of 14
[1] Joshua Thompson pled guilty to Level 6 felony domestic battery, 1 Level 6
felony battery with moderate bodily injury, 2 and Level 5 felony battery resulting
in serious bodily injury. 3 The trial court entered convictions on only two of the
admissions: Level 6 felony domestic battery and Level 5 felony battery
resulting in serious bodily injury. The court imposed consecutive sentences of
two and four years, respectively.
[2] In this direct appeal, Thompson contends: (1) his conviction of Level 5 felony
battery resulting in serious bodily injury should be vacated because the charging
information fails to allege a crime; (2) his conviction of two counts of battery
for one touching constitutes impermissible double jeopardy; and (3) his six-year
sentence is inappropriate in light of the nature of his offense. We affirm
Thompson’s conviction of Level 5 felony battery resulting in serious bodily
injury, vacate Thompson’s conviction Level 6 felony domestic battery on
double jeopardy grounds, and remand for the court to resentence Thompson.
Facts and Procedural History
[3] On July 28, 2015, Thompson and his ex-wife, Brooke, began to argue on the
telephone about child support. Thompson drove to Brooke’s house to continue
the argument. The argument became more heated and then, in front of their
1
Ind. Code §§ 35-42-2-1.3(a) & 35-42-2-1.3(b)(2) (2014).
2
Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(d)(1) (2014).
3
Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(f)(1) (2014).
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 2 of 14
two-year-old child, Thompson shoved Brooke. Brooke tripped and fell over the
curb, twisting her ankle and causing her pain. As she fell, Brooke struck
Charlotte Wells, her boyfriend’s elderly grandmother, in the mouth, which
caused Wells to fall and fracture her tailbone and a vertebra in her back.
[4] The State initially charged Thompson with: (1) Level 6 felony domestic battery
for pushing Brooke in a rude, insolent or angry manner causing injury to
Brooke, in front of their child, see Indiana Code section 35-42-2-1.3; and (2)
Level 6 felony battery with moderate bodily injury for pushing Brooke and
causing her moderate bodily injury in the form of a twisted ankle and pain, see
Indiana Code section 35-42-2-1(d)(1). Later, the State added a third charge
alleging Thompson committed Level 5 felony battery of Brooke resulting in
serious bodily injury to Wells. See Ind. Code § 35-42-2-1(f)(1).
[5] The day before he was scheduled for a jury trial, Thompson pleaded guilty to all
three counts without the benefit of a plea agreement. The trial court concluded
the two Level 6 felony charges punished the same act and entered conviction on
only the Level 6 felony domestic battery. The court suggested the Level 5
felony battery was also the same crime as the Level 6 felonies for Double
Jeopardy purposes, but the State insisted the crimes were distinguishable
because they involved “separate victims.” (Sentencing Tr. at 24.) The court
thereafter also entered a conviction of Level 5 felony battery resulting in serious
bodily injury. The court sentenced Thompson to consecutive sentences of two
and four years, respectively, for an aggregate sentence of six years.
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 3 of 14
Discussion and Decision
Waiver
[6] The State, relying on Mapp v. State, 770 N.E.2d 332, 335 (Ind. 2002), argues
Thompson waived his challenges to the validity of his convictions by pleading
guilty to the crimes. (See Appellee’s Br. at 7-9.) We acknowledge Mapp held:
“Defendants waive a whole panoply of rights by voluntarily pleading guilty.
These include the right to a jury trial, the right against self-incrimination, the
right of appeal, and the right to attack collaterally one’s plea based on double
jeopardy.” 770 N.E.2d at 334-35. Thus, a person who pleads guilty pursuant
to an agreement with the State is limited, on direct appeal, to challenging only
the merits of any sentencing decision that was not fixed by the plea agreement.
Id. at 333.
[7] However, Thompson did not have a plea agreement. Instead, he pled guilty in
open court to all charged crimes without an agreement that might provide him
any benefit. We have held that such a circumstance is distinguishable from
Mapp, such that a defendant has not waived his right to challenge the validity of
the convictions that were entered. See McElroy v. State, 864 N.E.2d 392, 396
(Ind. Ct. App. 2007) (when guilty plea was entered without the benefit of a plea
agreement, defendant “may raise a double jeopardy argument” on direct
appeal), trans. denied.
[8] We also note that declining to hold Thompson waived those arguments seems
especially appropriate because, during his change of plea hearing, the trial court
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 4 of 14
assured Thompson that it would not enter convictions that subjected him to
double jeopardy:
THE COURT: Okay, if we get a factual basis today what
will happen is that I will order a pre-sentence investigation report
from the probation department so I can get to know you better
and after I read the report and hearing evidence at a sentencing
hearing I will decide what penalty to impose for these matters
that you are pleading guilty to along with merging or joining
these offenses if it’s appropriate to do so. For example if the
third count consumes Counts 1 and 2 you will only be punished
for one count do you understand what I am saying?
DEFENDANT: Yes, sir.
THE COURT: But I haven’t made that decision today.
(Tr. Plea Hearing at 12-13.)
[9] At sentencing, after discussion with counsel, the court “vacate[d]” the
conviction of the second Level 6 felony, battery with moderate bodily injury,
and entered sentences on the other two counts. (Tr. Sentencing at 27.) The
court then told Thompson:
I need to advise you because the action that I took today was
discretionary you have the right to proceed under Criminal Rule
11 which you need to consider. That rule says that you are
entitled to take an appeal or file a motion to correct error from
the action that I took today.
(Id. at 29.)
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 5 of 14
[10] In light of the court’s assurances to Thompson that he would be convicted of
and sentenced for only those crimes that were proper to enter and that he could
bring a direct appeal of the court’s decisions, justice demands we follow
McElroy, rather than Mapp, and address the merits of Thompson’s assertions.
[11] Before we turn to the merits of Thompson’s arguments, we note the State’s brief
argues only that Thompson waived his arguments. The State does not suggest
how we should deal with Thompson’s arguments if we should choose to
address them on the merits. When an appellee fails to present argument on the
merits of an appellant’s issue,
we will treat this issue as one where no appellee’s brief was filed.
In such cases, we need not develop an argument for the appellee
and we apply a less stringent standard of review. Vandenburgh v.
Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App. 2009). We
may reverse if the appellant is able to establish prima facie error,
which is error at first sight, on first appearance, or on the face of
it. Id. The appellee’s failure to provide argument does not
relieve us of our obligation to correctly apply the law to the facts
in the record in order to determine whether reversal is required.
Id.
Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). We keep this
standard in mind as we turn to the validity of Thompson’s convictions.
Validity of Level 5 felony Conviction
[12] Thompson first asserts his Level 5 felony conviction must be vacated because
count 3 does not allege the crime of battery. A person is guilty of
battery if they knowingly or intentionally touch another person in
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 6 of 14
a rude, insolent, or angry manner. Count 3 alleges that
Thompson pushed his ex-wife and as a result his ex-wife
accidentally knocked Wells to the ground. Wells was
accidentally touched and she was touched by someone other than
the defendant. The crime of battery requires the defendant to
actually touch his victim. Count 3 does not allege that
Thompson touched Wells and the facts establish that Thompson
never touched Wells. The facts alleged in count 3, therefore, do
not constitute any recognized crime under Indiana law.
(Appellant’s Br. at 15.)
[13] The question Thompson raises – whether the facts charged meet the statutory
definition of battery – is one of statutory construction. See, e.g., Herron v. State,
729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000) (reviewing whether Indiana’s
statutory definition of “dependent” included unborn children, such that
Herron’s ingestion of cocaine during pregnancy could constitute “neglect of a
dependent”), trans. denied. Our primary goal when interpreting a statute is “to
fulfill the legislature’s intent,” Day v. State, 57 N.E.3d 809, 812 (Ind. 2016), and
we determine its intent by looking at the language in the statute. Id. “If that
language is clear and unambiguous, we simply apply its plain and ordinary
meaning, heeding both what it ‘does say’ and what it ‘does not say.’” Id.
(quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)). As construction of
a statute is a question of law, we review it de novo. Id. at 811.
[14] When the State charged Thompson with battery resulting in serious bodily
injury as a Level 5 felony, it alleged:
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 7 of 14
Thompson did knowingly or intentionally push Brooke
Thompson causing Brooke Thompson to fall backwards striking
Charlotte Wells in the mouth causing Charlotte Wells to fall to
the ground resulting in serious bodily injury, to-wit: fractured
vertebrae in her back, contrary to the form of the statutes in such
cases made and provided by I.C. 35-42-2-1(b)(1) and I.C. 35-42-
2-1(f)(1) . . . .
(Appellant’s App. Vol. II at 46.) Thompson asserts that allegation cannot state
a crime because “battery requires the defendant to actually touch his victim.”
(Appellant’s Br. at 15.) Thompson has not cited any authority to support his
assertion, and he may be correct, but it depends on what Thompson means by
“victim.” 4
[15] The basic definition of battery, as relevant to our discussion, is that it occurs
when one person “knowingly or intentionally . . . touches another person in a
rude, insolent, or angry manner.” Ind. Code § 35-42-2-1(b)(1) (2014). If
Thompson’s use of the word “victim” is in reference to “another person” who
must be touched for battery to have occurred, then Thompson is correct that
battery requires a defendant “to actually touch his victim.” (Appellant’s Br. at
15.)
[16] If, however, Thompson was using the word “victim” in reference to the person
who received the injuries as a result of the battery, then the plain language of
4
Interestingly, confusion about the identity of the “victim” also caused the trial court to enter two
convictions in violation of Thompson’s right to be free from double jeopardy, which we will address in the
next section of this opinion.
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 8 of 14
the battery statute demonstrates he is incorrect. Class B misdemeanor battery,
which requires the touching of “another person,” becomes a Class A
misdemeanor if it “results in bodily injury to any other person,” Ind. Code § 35-
42-2-1(c) (2014) (emphasis added); a Level 6 felony if it “results in moderate
bodily injury to any other person,” Ind. Code § 35-42-2-1(d)(1) (2014) (emphasis
added); a Level 5 felony if it “results in serious bodily injury to another person,”
Ind. Code § 35-42-2-1(f)(1) (2014) (emphasis added); a Level 4 felony if it
“results in serious bodily injury to an endangered adult,” Ind. Code § 35-42-2-1(h)
(2014) (emphasis added); a Level 3 felony “if it results in serious bodily injury to
a person less than fourteen (14) years of age if the offense is committed by a
person at least eighteen (18) years of age,” Ind. Code § 35-42-2-1(i) (2014)
(emphasis added); or a Level 2 felony if it “results in the death of . . . [a] person
less than fourteen [or] [a]n endangered adult.” Ind. Code § 35-42-2-1(j) (2014)
(emphasis added).
[17] Nothing in those subsections defining the elevated versions of battery that can
be found based on injuries resulting from the battery requires the injured
“person” to be the same “person” who was touched. See generally Ind. Code §
35-42-2-1 (2014). The only requirement is that the battery “results in” the
injury. See generally id. Because “it is just as important to recognize what a
statute does not say as it is to recognize what it does say,” Herron, 729 N.E.2d
at 1010, we hold the statutory definition of battery does not preclude a charge
based on one person being touched and a second person being injured as a
result of that touching.
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 9 of 14
[18] The State charged Thompson with Level 5 battery based on the facts he pushed
Brooke and, as a consequence, Wells sustained serious bodily injury. That
charge comports with the statutory definition of battery provided by our
legislature and we, therefore, affirm Thompson’s conviction of Level 5 felony
battery.
Double Jeopardy
[19] Next, Thompson asserts his two convictions of battery violate his constitutional
right to be free of double jeopardy. See Ind. Const. art. 1, § 14 (“No person
shall be put in jeopardy twice for the same offense.”). That clause was intended
to prevent the State from proceeding against a person more than once for the
same crime. Wharton, 42 N.E.3d at 541. In particular, Thompson alleges his
convictions violate the “actual evidence test.” See Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999), holding modified by Garrett v. State, 992 N.E.2d 710
(Ind. 2013). The actual evidence test requires us to “determine whether each
challenged offense was established by separate and distinct facts.” Id. at 53.
[20] More than thirty-five years ago, our court considered whether two convictions
of battery could be imposed for a single “beating . . . upon one victim”:
McGaughey argues her Fifth Amendment protection against
double jeopardy has been violated because she was found guilty
of two offenses: battery with a deadly weapon and battery
resulting in serious bodily injury. Ind. Code 35-42-2-1(3) was the
basis for the two counts of battery. This section provides:
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 10 of 14
A person who knowingly or intentionally touches another
person in a rude, insolent, or angry manner commits
battery, a class B misdemeanor. However, the offense is:
(3) A class C felony if it results in serious bodily injury to
any other person or if it is by means of a deadly weapon.
We are of the opinion that the statute defines but one offense,
with subsection 3 stating two alternative factual situations which,
if proven, raise the level of the offense from a class B
misdemeanor to a class C felony.
The elements of the basic offense are: (1) knowingly or
intentionally (2) touching another person (3) in a rude,
insolent or angry manner.
More severe punishment is provided when there are
additional elements present ....
The class C felony, has the three basic elements plus either
‘serious bodily, injury’ or commission by means of a
‘deadly weapon’.
“Commentary,” West’s A.I.C. 35-42-2-1, at 300.
Here, there was one beating, at one place, at one time inflicted
upon one victim, there, but one crime was committed.
McGaughey v. State, 419 N.E.2d 184, 185 (Ind. Ct. App. 1981).
[21] Similarly, here, there was but “one beating, at one place, at one time inflicted
upon one victim,” id., such that only one crime was committed. The factual
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 11 of 14
basis provided for Thompson’s crimes at the change of plea hearing indicated
he shoved Brooke only once, and that one shove in front of their son resulted in
Brooke’s twisted ankle and Wells’ fall and injury. Thus, Thompson’s single
push of Brooke resulted in both of Thompson’s convictions, in violation of his
right to be free of double jeopardy. See, e.g., Wood v. State, 999 N.E.2d 1054,
1065-66 (Ind. Ct. App. 2013) (defendant’s three convictions of leaving the scene
of a boating accident -- two counts enhanced from Class C misdemeanors to
Class C felonies because the accident resulted in the death of two people and
one enhanced to a Class D felony because the accident resulted in serious
bodily injury to one person – subjected defendant to double jeopardy when he
left the scene of only one accident), trans. denied, cert. denied 135 S. Ct. 250
(2014); Wharton, 42 N.E.3d at 541 (Double jeopardy clause violated when
defendant’s convictions of operating while intoxicated and of operating with a
BAC of .110 both resulted “from the same actions, on the ‘same date, [at] the
same location.’”); McGaughey, 419 N.E.2d at 185 (one beating of one victim at
one time and place is a single crime, even if facts support multiple separate
enhancements of that single crime).
[22] When a double jeopardy violation has occurred, the “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.” Richardson, 717 N.E.2d
at 54. However, if doing so will not eliminate the violation, one of the
convictions must be vacated. Id. Reducing either of Thompson’s battery
convictions will not eliminate the double jeopardy violation, as each of them is
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 12 of 14
based on the same touching of Brooke. See Noble v. State, 734 N.E.2d 1119,
1125-26 (Ind. Ct. App. 2000) (“Reducing one of the felony battery convictions
to a lesser form of battery will not eliminate the double jeopardy violation
because . . . a lesser battery conviction would still arise out of the same facts as
the remaining felony battery conviction.”), trans. denied. We therefore vacate
Thompson’s conviction of Level 6 felony domestic battery and remand for the
trial court to resentence Thompson for the Level 5 felony battery. 5
Conclusion
[23] Indiana’s statutory definition of battery does not require the person who is
battered be the same person who is injured as a result of the battery; thus, the
third count of the charging information states a crime for which Thompson
could be convicted. Because Thompson’s convictions of both Level 6 felony
domestic battery and Level 5 felony battery relied on the same, single act of
touching by Thompson, his conviction of both crimes subjected him to double
jeopardy. We vacate Thompson’s conviction of Level 6 felony domestic battery
and remand for the trial court to enter a conviction of and sentence for only
Level 5 felony battery.
[24] Affirmed in part, reversed in part, and remanded.
5
As we hold Thompson’s convictions constitute double jeopardy and remand for the court to resentence him
for a single conviction, we need not address the alleged inappropriateness of his sentence.
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 13 of 14
Brown, J., and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017 Page 14 of 14