Anthony Barron v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of DEC 07 2014, 1:28 pm
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH GREGORY F. ZOELLER
Appellate Clinic Attorney General of Indiana
Indiana University McKinney School of Law
Indianapolis, Indiana RICHARD C. WEBSTER
Deputy Attorney General
DRAKE T. LAND Indianapolis, Indiana
Certified Legal Intern
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY BARRON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1304-CR-165
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Stanley Kroh, Judge
Cause No. 49G16-1209-FD-67604
January 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Anthony Barron (“Barron”) appeals his conviction, after a bench trial, for
domestic battery, a Class D felony.1
We affirm in part, reverse in part, and remand.
ISSUE
Whether Barron’s convictions for strangulation and domestic battery
violate Indiana’s Double Jeopardy Clause.
FACTS
On August 31, 2012, Barron was at home with his wife, Tiffani Garret Barron
(“Tiffani”) and their thirteen-month old son. Barron and Tiffani argued throughout the
day. The argument became physical, and Barron grabbed Tiffani’s throat with both
hands and squeezed her throat, making it difficult for her to breathe. At some point,
Tiffani stated that “she just kind of went limp and that is when he let go and [she] hit the
floor.” (Tr. 13). When Tiffani came to, she got up and ran out of the back door of the
apartment. Barron ran after her, grabbed her arm, and dragged her back into the
apartment. Tiffani tried to resist, but Barron dragged her back in, causing her to injure
her knee. Later that evening, Barron took Tiffani to her grandmother’s house, and Tiffani
went to the hospital for treatment. Tiffani reported the incident to the police on
September 3, 2012.
On October 3, 2012, the State charged Barron with strangulation, criminal
confinement, two counts of domestic battery, and two counts of battery, all as Class D
1
Ind. Code § 35-42-2-1.3(a)(1-3)(b)(2).
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felonies.2 On January 23, 2013, Barron waived his right to a trial by a jury, and the trial
court held a bench trial on February 19, 2013. The trial court found Barron guilty of all
counts and entered judgment of conviction. However, before scheduling the sentencing
hearing, the judge noted that some of the convictions would be vacated for double
jeopardy purposes. The trial court sentenced Barron on March 12, 2013. The trial court
vacated the convictions for one count of domestic battery and the remaining battery
counts. On the strangulation, criminal confinement, and remaining domestic battery
charge, the trial court sentenced Barron to two (2) years, with one (1) year executed in
community corrections work release, and one (1) year suspended to probation.
DECISION
Barron argues that the trial court violated Indiana’s Double Jeopardy Clause by
convicting him of strangulation and domestic battery. Specifically, he alleges that the
State used the same evidence to obtain the convictions. In the alternative, Barron claims
that recognized common law principles prevented the court from entering convictions on
both charges. The State contends that Barron failed to show a reasonable possibility that
the trial court used the same evidence to convict him of both crimes.
Our Supreme Court established the following test for deciding double jeopardy
claims:
[T]wo or more offenses are the same offense in violation of Article I,
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.
2
One count of domestic battery and one count of battery were enhanced from a Class A misdemeanor to a
Class D felony because of prior convictions for battery.
3
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). “[U]nder 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 several, but not all, of the essential elements of a second offense.”
Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002). For a successful double jeopardy
claim under the Richardson actual evidence test, “a defendant must demonstrate 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. at 53.
Notwithstanding the phrasing of the Richardson actual evidence test, “in
application our Supreme Court has consistently overturned convictions [on] double
jeopardy grounds where the evidentiary facts establishing an essential element of one
offense also establish all of the essential elements of the second challenged offense.”
Alexander v. State, 768 N.E.2d 971, 974 (Ind. Ct. App. 2002) (emphasis in original),
trans. denied; see also Spears v. State, 735 N.E.2d 1161 (Ind. 2000), Logan v. State, 729
N.E.2d 125 (Ind. 2000), Hampton v. State, 719 N.E.2d 803 (Ind. 1999) (in all cases,
convictions for robbery as a Class A felony were reduced to a class C felony for double
jeopardy purposes because the actual evidence of serious bodily injury for robbery
satisfied all of the elements of corresponding murder charge).
On appeal, in determining the facts used by the fact-finder, it is appropriate for a
reviewing court to examine the evidence presented, the charging information, arguments
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of counsel, and any other factors that may have guided the fact-finder in making a
decision. See Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005). We review
de novo whether a defendant’s convictions violate our double jeopardy provision. Id. at
458.
To convict Barron of strangulation as charged, the State was required to prove that
he knowingly and in a rude, insolent, or angry manner applied pressure to the throat or
neck of Tiffani in a manner that impeded her normal breathing or blood circulation.
(App. 20). To convict Barron as charged of domestic battery, the State was required to
prove that Barron, being Tiffani’s husband, knowingly touched her in a rude, insolent, or
angry manner, resulting in bodily injury, and that the battery occurred in the physical
presence of a child less than sixteen (16) years of age, knowing that said child was
present and might be able to see or hear the offense. (App. 22).
The evidence presented showed that Barron grabbed Tiffani’s neck with both
hands and squeezed, causing her difficulty in breathing. During closing argument, the
prosecutor stated the following:
We did prove that the Defendant on the date in question did grab her throat,
grab her neck causing her an inability to breathe so much so that she was
clawing at him trying to get him to release [his] grip so she could breathe.
The criminal confinement occurred when he dragged her from outside in
the driveway back into the apartment. The domestic battery occurred when
he grabbed her [neck] causing the pain to her neck as he was squeezing it.
In addition to her neck swelling later and furthermore the injury she
sustained is as a result of being dragged back into the house.
(Tr. 46). It is clear from the charging information and the State’s argument that the act of
strangulation is the basis for the domestic battery charge. We acknowledge that the
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State’s closing argument raises some possibility that another act of battery, Barron’s
dragging Tiffani back into their apartment, could separately support the domestic battery
charge. However, using that evidence as such would not alleviate double jeopardy
concerns. Barron dragging Tiffani into the apartment, causing pain to her arm and
injuring her knee, would fulfill one element of domestic battery, and all of the elements
of criminal confinement. Thus, it is clear that all of Barron’s convictions are not
supported by separate evidence.
When two or more convictions violate double jeopardy principles, the remedy, if
possible, is to reduce either conviction to a less serious form of the same offense if doing
so will remove the violation. Richardson, 717 N.E.2d at 54. If this cannot be
accomplished, one of the convictions must be vacated. Id. Accordingly, we reverse and
remand to the trial court with instructions to vacate Barron’s conviction for domestic
battery, leaving his remaining convictions and sentence in place.
Affirmed in part, reversed in part, and remanded.
MATHIAS, J., and BRADFORD, J., concur.
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