FILED
Oct 30 2017, 10:18 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald J. Moore Curtis T. Hill, Jr.
The Moore Law Firm, LLC Attorney General of Indiana
Richmond, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Henson, October 30, 2017
Appellant-Defendant, Court of Appeals Case No.
89A01-1705-CR-972
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Charles K. Todd,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
89D01-1411-FC-93
Najam, Judge.
Statement of the Case
[1] Kevin Henson appeals his convictions following a jury trial for three counts of
battery, as Class C felonies; four counts of criminal recklessness, as Class D
felonies; criminal mischief, as a Class D felony; and operating a vehicle while
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intoxicated, as a Class C misdemeanor. Henson presents three issues for our
review:
1. Whether the trial court violated his right under Article 1,
Section 14 of the Indiana Constitution to be free from
double jeopardy.
2. Whether the State presented sufficient evidence to support
seven of his convictions.
3. Whether his sentence is inappropriate in light of the nature
of the offenses and his character.
We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[2] Shortly after midnight on March 9, 2014, Henson, his son Stephen Daniel
Henson (“Daniel”), and Charles Patterson II drank alcohol together at an
apartment in Richmond. Throughout the night, Henson and Daniel engaged in
a heated argument. At approximately 1:00 a.m., the three left the apartment in
order to buy cocaine from Daniel’s cousin. Henson drove Daniel’s Honda
Accord with Patterson in the front passenger seat and Daniel in the back seat
behind Henson. Henson and Daniel continued to argue as they were in the car.
[3] As Henson turned southbound onto Chester Boulevard, he “pressed the [gas]
pedal all the way down to the floor” and sped down the street. Tr. Vol. 2 at
139. Patterson asked Henson to stop the car. In fact, Patterson “pleaded for
[his] life for him to stop the car to let [him] out[,]” but Henson ignored him. Id.
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at 165. At one point, Daniel told Henson that he hated him and called him a
“b****.” Id. at 141. In response, Henson said, “‘I’m a b[****], well, watch
this[,]’ and he jerked the wheel . . . straight to the left . . . clear across all lanes,
directly into [a] Speedway [gas station,] and he continued to gun it.” Id.
Henson was driving the car at approximately sixty miles per hour when he
drove over a curb and straight into some gas pumps.
[4] As the car crashed into the gas pumps, which caused explosions, Daniel and
Patterson were both ejected from the car and hit the ground. The car flipped
onto its roof and slid across the pavement until it came to rest. Scotty Adams, a
Speedway customer who had witnessed the crash, found Henson unconscious
and “trapped” in the car in an “upside down” position. Id. at 96. Adams could
not get Henson out of the car, and Adams sought help from a responding police
officer. Ultimately, Richmond Police Department Officer Alecia Tonuc
climbed into the car and extricated Henson.1 Medical personnel arrived and
assisted Daniel, Patterson, and Henson before transporting them to the hospital.
Henson’s blood alcohol content (“BAC”) was .22.
[5] As a result of the crash, Patterson sustained severe injuries to his head and face
that required reconstructive facial surgery, which included having metal plates
installed in the right side of his face. Daniel sustained injuries to his head,
shoulder, and knees and required three to four weeks to recover from his
1
Henson’s legs were stuck “underneath the dash . . . underneath the steering wheel.” Tr. Vol. 3 at 51.
Officer Tonuc found a bottle of Smirnoff vodka between Henson’s legs.
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injuries. Jasmine Simmons, another customer at the gas station who witnessed
the crash and ensuing explosions, sustained burns to her left thigh when she
removed her three-year-old son from her car, which she had parked at a nearby
pump.
[6] The State charged Henson with fourteen felonies and two misdemeanors. A
jury found Henson guilty of twelve felonies.2 The trial court entered judgment
of conviction on the following counts: three counts of battery, as Class C
felonies (Counts I, II, and III); four counts of criminal recklessness, as Class D
felonies (Counts V, VII, VIII, and IX); criminal mischief, as a Class D felony
(Count X); and operating a vehicle while intoxicated, as a Class C
misdemeanor (Count XI). And the trial court sentenced Henson to an
aggregate term of nine years and sixty days, with one and one-half years
suspended to probation. This appeal ensued.
Discussion and Decision
Issue One: Double Jeopardy
[7] Henson first contends that the trial court violated his right under Article 1,
Section 14 of the Indiana Constitution to be free from double jeopardy when
the court entered its judgment of conviction against him on the two counts of
battery against Patterson and on the battery and criminal recklessness counts
2
The State dismissed two of the felony counts and the two misdemeanor counts prior to trial.
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involving Daniel as the victim. We review alleged double jeopardy violations
de novo. Berg v. State, 45 N.E.3d 506, 509 (Ind. Ct. App. 2015).
[8] Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,
providing that “[n]o person shall be put in jeopardy twice for the same offense.”
As the Indiana Supreme Court has explained:
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
concluded that two or more offenses are the same offense in
violation of article 1, section 14 if, with respect to either the
statutory elements of the challenged crimes or the actual evidence
used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense. Under the actual evidence test, we examine
the actual evidence presented at trial in order to determine
whether each challenged offense was established by separate and
distinct facts. Id. at 53. 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.” Id. The actual
evidence test is applied to all the elements of both offenses. “In
other words . . . 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).
Our precedents “instruct that a ‘reasonable possibility’ that the
jury used the same facts to reach two convictions requires
substantially more than a logical possibility.” Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
possibility standard “fairly implements the protections of the
Indiana Double Jeopardy Clause and also permits convictions for
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multiple offenses committed in a protracted criminal episode
when the case is prosecuted in a manner that insures that
multiple guilty verdicts are not based on the same evidentiary
facts.” Richardson, 717 N.E.2d at 53 n. 46. The existence of a
“‘reasonable possibility’ turns on a practical assessment of
whether the [fact finder] may have latched on to exactly the same
facts for both convictions.” Lee, 892 N.E.2d at 1236. We
evaluate the evidence from the jury’s perspective and may
consider the charging information, jury instructions, and
arguments of counsel. Id. at 1234.
Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (emphasis added; last
alteration original). Thus, under Spivey, in order for there to be a double
jeopardy violation under the actual-evidence test the evidentiary footprint for all
the elements required to prove one offense must be the same evidentiary
footprint as that required to prove all the elements of another offense. See 761
N.E.2d at 833.
[9] Here, according to the State’s charging information, which tracked the relevant
statutes at issue, Henson committed two counts of battery, as Class C felonies,
when he
[Count I] knowingly or intentionally touch[ed] Charles Patterson
in a rude, insolent, or angry manner, to-wit: Kevin L. Henson
drove a motor vehicle at a high rate of speed into gas pumps on
the Speedway lot while Charles Patterson was an occupant of
said motor vehicle, with said touching resulting in serious bodily
injury to Charles Patterson, to-wit: unconsciousness, head
laceration, facial fractures and/or extreme pain, [and] . . .
[Count II] knowingly or intentionally touch[ed] Charles
Patterson in a rude, insolent, or angry manner, to-wit: Kevin L.
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Henson drove a motor vehicle at a high rate of speed into gas
pumps on the Speedway lot while Charles Patterson was an
occupant of said motor vehicle, with said touching being
committed by means of a deadly weapon, to-wit: a moving
motor vehicle[.]
Appellant’s App. Vol. 2 at 17; see Ind. Code § 35-42-2-1(a)(3) (2013).
[10] Henson contends, and the State agrees, that his convictions under both of those
two counts violate the prohibition against double jeopardy. In particular, as the
State points out,
[Henson] was convicted of two Class C felony batteries against
[Patterson] for his one act of driving the vehicle at a high rate of
speed into gas pumps. The factual allegations in the charging
information for each of [Henson]’s offenses were based on this
single act. The evidence presented at trial showed that [Henson]
used the vehicle as a deadly weapon by driving it into the gas
pumps one time, resulting in serious bodily injury to [Patterson]
when he was ejected from the vehicle. The State did not argue
any additional acts that may have supported either of the battery
convictions at trial, and the jury was not instructed on any
additional acts.
Given the charging information, the jury instructions, the
evidence, and the State’s opening and closing arguments, there is
a reasonable possibility that the evidentiary facts used by the jury
to establish the essential elements of one Class C felony battery
may also have been used to establish the essential elements of the
second Class C felony battery.
Appellee’s Br. at 28 (citations omitted).
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[11] We agree that the State’s evidence establishing all of the essential elements of
each count of battery against Patterson was the same. See Spivey, 761 N.E.2d at
833. In other words, the evidentiary footprint underlying both Counts I and II
was identical. Accordingly, there is a reasonable possibility that the jury
“latched on to exactly the same facts for both convictions.” Lee, 892 N.E.2d at
1236. We reverse Henson’s conviction for battery, as a Class C felony, under
Count II and remand with instructions for the trial court to vacate that
conviction.
[12] Likewise, Henson contends, and the State agrees, that his convictions on Count
III, for battery, as a Class C felony, and Count V, for criminal recklessness, as a
Class D felony, both of which allege injuries to Daniel, violate the prohibition
against double jeopardy. To prove battery, as a Class C felony, as alleged in
Count III, the State was required to show that Henson knowingly or
intentionally touched Daniel in a rude, insolent, or angry manner by means of a
deadly weapon, namely, a moving motor vehicle. See I.C. § 35-42-2-1(a)(3).
And to prove criminal recklessness, as a Class D felony, as alleged in Count V,
the State was required to show that Henson recklessly, knowingly, or
intentionally performed an act that created a substantial risk of bodily injury to
Daniel and that he performed that act while armed with a deadly weapon,
namely, a moving motor vehicle. See I.C. § 35-42-2-2(c)(2)(A).
[13] The State acknowledges that, at trial, it presented the same evidence, namely,
Henson’s single act of driving the car into the gas pumps, to prove the essential
elements of both Counts III and V. Indeed, the State concedes that it “did not
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argue any additional acts that may have supported either of the convictions at
trial, and the jury was not instructed on any additional acts.” Appellee’s Br. at
29. We again agree. Accordingly, there is a reasonable possibility that the jury
“latched on to exactly the same facts for both convictions.” Lee, 892 N.E.2d at
1236. We reverse Henson’s conviction for criminal recklessness, as a Class D
felony, under Count V and remand with instructions for the trial court to vacate
that conviction.
Issue Two: Sufficiency of the Evidence
[14] Henson contends that the State presented insufficient evidence to prove seven
of his convictions. Because we reverse two of the challenged convictions, we
need only address his argument with respect to his convictions for two counts of
battery, as Class C felonies (for injuries sustained by Daniel and Patterson) and
three counts of criminal recklessness, as Class D felonies (for risk of injuries to
bystanders at the gas station). In reviewing the sufficiency of the evidence, we
consider only the evidence and reasonable inferences most favorable to the
conviction, neither reweighing the evidence nor reassessing witness credibility.
Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment
unless no reasonable fact-finder could find the defendant guilty. Id.
[15] To prove Count I, battery, as a Class C felony, the State was required to show
that Henson knowingly or intentionally touched Patterson in a rude, insolent,
or angry manner, which resulted in serious bodily injury to Patterson. See I.C. §
35-42-2-1(a)(3). To prove Count III, battery, as a Class C felony, the State was
required to show that Henson knowingly or intentionally touched Daniel in a
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rude, insolent, or angry manner and by means of a deadly weapon, namely, a
moving motor vehicle. See id. To prove the criminal recklessness counts, the
State was required to show that Henson recklessly, knowingly, or intentionally
performed an act that created a substantial risk of bodily injury to Simmons,
Simmons’ son, and Brandon Hine.3 See I.C. § 35-42-2-2(c)(2)(A). A
defendant’s mental state is ordinarily a matter of circumstantial proof and may
be “inferred from the defendant’s conduct and the natural and usual sequence
to which such conduct reasonably points.” Boling v. State, 982 N.E.2d 1055,
1057 (Ind. Ct. App. 2013).
[16] Henson asserts that there is no evidence that he touched either Daniel or
Patterson. And he maintains that the State did not prove the mens rea elements
of each offense. In particular, he contends that there is no evidence that he had
the specific intent to use the car as a deadly weapon. We address each
contention in turn.
Touching
[17] As our Supreme Court has stated, “[w]hile battery requires [a] defendant to
have intended to touch another person, [he] need not personally touch another
person since battery may be committed by the unlawful touching by [the]
defendant or by any other substance put in motion by [the] defendant.” Matthews v.
State, 476 N.E.2d 847, 850 (Ind. 1985) (holding intent to touch satisfied where
3
Brandon Hine was another Speedway customer at the time of the offenses.
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defendant fired bullets at officer) (emphasis added). Here, the State presented
ample evidence from which the jury could infer that Henson intentionally drove
his car at a high rate of speed directly into gas pumps. That collision caused
Daniel and Patterson to be ejected from the car and thrown onto the pavement,
which resulted in their injuries. To the extent Henson contends that the
evidence is insufficient to show that he was driving the car at the time, that is a
request that we reweigh the evidence, which we cannot do. The State presented
evidence supporting a reasonable inference that Henson intentionally drove the
car into the gas pumps, and we hold that that evidence is sufficient to prove that
he knowingly or intentionally touched Daniel and Patterson in an angry
manner.
Car as Deadly Weapon
[18] Henson “acknowledges that motor vehicles can be construed as deadly
weapons when the circumstances illustrate they are intended to be used as
such.” Appellant’s Br. at 25. But Henson maintains that our Supreme Court
“requires a specific intent to use the vehicle as a deadly weapon.” Id. at 26 (citing
Defries v. State, 342 N.E.2d 622, 626 (Ind. 1976)) (emphasis added). And
Henson asserts that there is no evidence that he had the specific intent to use the
car as a deadly weapon, “nor could it be inferred as the jury was not instructed
as such.” Id. We cannot agree.
[19] As the State points out, the trial court instructed the jury in relevant part as
follows:
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The term deadly weapon is defined by law as meaning a weapon,
device, taser, as defined by Indiana Code 35-47-8-3, or electronic
stun weapon, as defined by . . . Indiana Code 35-47-8-1,
equipment, chemical substance, or other material that in the
manner it is used, or could ordinarily be used, is readily capable
of causing serious bodily injury. A motor vehicle may be a deadly
weapon if used or intended to be used in a manner readily capable of
causing serious bodily harm.
Tr. Vol. 3 at 136 (emphasis added).
[20] And the evidence supports a reasonable inference that Henson intended to use
the car as a deadly weapon. In particular, in response to Daniel calling him a
“b****,” Henson said, “‘I’m a b[****], well, watch this[,]’ and he jerked the
wheel . . . straight to the left . . . clear across all lanes, directly into [a]
Speedway [gas station,] and he continued to gun it.” Tr. Vol. 2 at 141. Henson
was driving the car at approximately sixty miles per hour when he drove over a
curb and straight into the gas pumps. The jury could have reasonably inferred
from that conduct that Henson intended to cause serious bodily harm to Daniel,
Patterson, and Speedway customers when he crashed the car. The evidence is
sufficient to support Henson’s conviction on Count III, battery against Daniel
with a deadly weapon, as well as his convictions for criminal recklessness.
[21] Still, Henson contends that the trial court committed fundamental error when it
did not sua sponte instruct the jury “that the mens rea element applies to the use
of the vehicle as a deadly weapon.” Appellant’s Br. at 27. However, in support
of that contention, Henson asserts, again, that “the jury must be informed that
[it] must find ‘that the vehicle can be a deadly weapon if used or intended to be
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used in [such] a manner.’” Id. (quoting DeWhitt v. State, 829 N.E.2d 1055, 1064
(Ind. Ct. App. 2005) (emphasis added)). But, as the State points out, the trial
court did so instruct the jury. Henson has not demonstrated error, let alone
fundamental error.
Issue Three: Sentence
[22] Finally, Henson contends that his sentence is inappropriate in light of the
nature of the offenses and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and
the character of the offender.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[23] Here, the trial court identified the following aggravating factors when it
imposed its sentence: Henson’s criminal history, which included three prior
felonies, eight misdemeanors, and prior probation violations; one of the victims
was three years old; Henson had a pending criminal case at the time he
committed these offenses; and the offenses “were egr[e]gious with multiple
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victims and numerous parties being subject to potential danger other than the
victims of the offenses, including employee(s) of Speedway, law enforcement,
firefighters, and others based on [Henson]’s intentional acts.” Appellant’s App.
Vol. 4 at 129-30. The trial court identified the following mitigating
circumstances: several letters of support indicating “a caring and helping side”
to Henson; Henson’s willingness to pay restitution to his victims; and his steady
employment. The court found that the aggravators “significantly” outweighed
the mitigators.
[24] At the time of these offenses, the sentencing range for a Class C felony was two
to eight years, with an advisory sentence of four years. I.C. § 35-50-2-6. And
the sentencing range for a Class D felony was six months to three years, with an
advisory sentence of one and one-half years. I.C. § 35-50-2-7. The trial court
imposed concurrent six and one-half year sentences for the Class C felonies,
concurrent two and one-half year sentences for the Class D felonies, and an
additional sixty days for the Class C misdemeanor, with the sentences for each
level of offense to run consecutively. Thus, the court imposed an aggregate
term of nine years and sixty days, with one and one-half years suspended to
probation.
[25] Henson asserts that his sentence is inappropriate in light of the nature of the
offenses because, while the victims’ injuries were significant and “cannot be
minimized,” this was “a single act that occurred within moments.” Appellant’s
Br. at 35-36. But Henson does not explain why the short duration of the act
underlying his offenses warrants a revised sentence. Indeed, it was because
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Henson was driving so fast that the impact and potential impact on bystanders
was so great. Further, Henson’s BAC was .22 and he intentionally drove into
the gas pumps in the course of an argument with his son. We cannot say that
Henson’s sentence is inappropriate in light of the nature of the offenses, which
caused substantial injuries to multiple victims.
[26] Henson maintains that his sentence is inappropriate in light of his character.
Henson points out that he: “was a low risk to reoffend”; was a “valuable
employee” and a “caring individual”; and offered to make restitution.
Appellant’s Br. at 37. But Henson’s long criminal history, which began in 1986
and includes three felonies, eight misdemeanors and multiple probation
violations, reflects his poor character. Indeed, Henson had a warrant out for his
arrest on a pending criminal case at the time he committed these offenses.
Finally, Henson has a history of alcohol abuse, and he was on his way to buy
cocaine at the time of these offenses, yet he has never sought substance abuse
treatment. We cannot say that Henson’s sentence is inappropriate in light of
his character.
[27] Affirmed in part, reversed in part, and remanded with instructions.
Kirsch, J., and Brown, J., concur.
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Kevin Henson v. State of Indiana
Combined Opinion