Andrew D. Hunter v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 24 2020, 9:12 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew D. Hunter, June 24, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2987
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli Fink,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1901-F5-564
Tavitas, Judge.
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Case Summary
[1] Andrew Hunter appeals his conviction for criminal confinement, a Level 5
felony. We affirm.
Issue
[2] Hunter raises one issue, which we restate as whether his conviction for criminal
confinement, a Level 5 felony, violates the prohibition against double jeopardy.
Facts
[3] On January 21, 2019, Hunter punched his girlfriend, Sarah Nernberger, in the
eye and the mouth after she refused to “take him places and give him money.”
Tr. Vol. II p. 80. Hunter grabbed Nernberger, took her into the bathroom, and
shut the door. Hunter then grabbed Nernberger’s hair and slammed her head
against the toilet. Hunter strangled Nernberger with his hands around her neck
until she was “gasping for air.” Id. at 83. Hunter then took a shower but told
Nernberger: “If you get up and leave this bathroom I’ll kill you” and “I’ll come
after your family and I’ll go to your daughter’s school.” Id.
[4] After Hunter finished his shower, he allowed Nernberger to leave the
bathroom. Hunter screamed at Nernberger to leave the apartment and said, “if
you call the cops, I’ll kill you and come after your family.” Id. at 84.
Nernberger left the apartment and went to her sister’s house, and Nernberger’s
family called the police. Officers arrested Hunter and placed him in handcuffs
in a police car. On the way to the police station, Hunter complained that the
handcuffs were on too tight, so the officer stopped the vehicle to loosen the
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handcuffs. As the officer was trying to adjust the handcuffs, Hunter began
struggling with the officer, and a citizen helped secure Hunter until other
officers could arrive.
[5] The State charged Hunter with criminal confinement, a Level 5 felony;
attempted escape, a Level 5 felony; intimidation, a Level 6 felony;
strangulation, a Level 6 felony; and domestic battery, a Class A misdemeanor.
The State also alleged that Hunter was a habitual offender. The State later
added an additional charge of invasion of privacy, a Class A misdemeanor.
[6] Hunter pleaded guilty to the invasion of privacy charge, and a jury found
Hunter guilty of criminal confinement, a Level 5 felony; resisting law
enforcement, a Class A misdemeanor; intimidation, a Level 6 felony;
strangulation, a Level 6 felony; and domestic battery, a Class A misdemeanor.
Hunter admitted that he is an habitual offender. The trial court sentenced
Hunter to concurrent terms of: five years for the criminal confinement
conviction, enhanced by three years due to Hunter’s status as an habitual
offender; two years on the intimidation and strangulation convictions; and ten
months on the misdemeanor convictions, for an aggregate sentence of eight
years in the Department of Correction. Hunter now appeals.
Analysis
[7] Hunter argues that his conviction for criminal confinement, a Level 5 felony,
violates the prohibition against double jeopardy. The Indiana Constitution
provides that “[n]o person shall be put in jeopardy twice for the same offense.”
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Ind. Const. art. 1, § 14. The Indiana Supreme Court has held that “two 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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). “On
appeal, the defendant bears the burden to show that his convictions violated his
constitutional right to be free from double jeopardy.” Johnston v. State, 126
N.E.3d 878, 889 (Ind. Ct. App. 2019), trans. denied.
[8] Hunter presents no argument that his conviction violates the statutory elements
test; rather, Hunter contends that his conviction violates the actual evidence
test.
In order to find a double jeopardy violation under the actual
evidence test, a reviewing court must conclude there is a
reasonable possibility that the evidentiary facts used by the
factfinder to establish the essential elements of an offense for
which the defendant was convicted or acquitted may also have
been used to establish all the essential elements of a second
challenged offense.
Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015). “Application of this test
requires the court to ‘identify the essential elements of each of the challenged
crimes and to evaluate the evidence from the jury’s perspective. . . .’” Id.(quoting Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)). “In determining the
facts used by the fact-finder, ‘it is appropriate to consider the charging
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information, jury instructions, [ ] arguments of counsel’ and other factors that
may have guided the jury’s determination.” Id. (quoting Lee, 892 N.E.2d at
1234).
[9] First, we note that Hunter argues his conviction for criminal confinement
“cannot stand” and “should be vacated.” Appellant’s Br. pp. 8, 12, 13. “A
violation of double jeopardy principles requires that we vacate the conviction
with the less severe penal consequences.” Johnston, 126 N.E.3d at 890 (emphasis
added). Hunter, however, argues that we should vacate the conviction with the
most severe penal consequences. Hunter’s argument fails.
[10] Next, we will address whether Hunter’s convictions for criminal confinement,
battery, strangulation, and intimidation violate the actual evidence test. Hunter
argues:
Nernberger testified she felt unable to leave the bathroom, even
though Hunter had not physically restrained her, because Hunter
had hit, choked, and threatened her. In order to prove Hunter
had confined Nernberger, the jury had to rely on the same
evidentiary facts that established Hunter had battered, choked,
and intimidated Nernberger. Otherwise, it would have appeared
as if Nernberger was simply sitting in the bathroom,
unrestrained, while Hunter showered.
Appellant’s Br. p. 12.
[11] The criminal confinement charging information provided: “Andrew D. Hunter
did knowingly or intentionally confine Sarah Nernberger without the consent of
Sarah Nernberger, said act resulting in bodily injury to Sarah Nernberger . . . .”
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Appellant’s App. Vol. II p. 20; see Ind. Code § 35-42-3-3. The intimidation
charging information provided: “Andrew D. Hunter did communicate a threat
to commit a forcible felony to Sarah Nernberger, with the intent that said Sarah
Nernberger engage in conduct against the will of said other person . . . .”
Appellant’s App. Vol. II p. 20; see Ind. Code § 35-45-2-1. The strangulation
charging information provided: “Andrew D. Hunter in a rude, insolent or angry
manner, did knowingly or intentionally apply pressure to the throat or neck of
Sarah Nernberger and/or obstruct the nose or mouth of Sarah Nernberger
and/or apply pressure to the torso of Sarah Nernberger in a manner that
impeded normal breathing or blood circulation of Sarah Nernberger . . . .”
Appellant’s App. Vol. II p. 20; see Ind. Code § 35-42-2-9. The battery charging
information provided: “Andrew D. Hunter did knowingly or intentionally
touch Sarah Nernberger, a family or household member[,] in a rude, insolent or
angry manner by striking, grabbing, squeezing and/or pushing said victim . . .
.” Appellant’s App. Vol. II pp. 20-21; see Ind. Code § 35-42-2-1.3.
[12] In closing arguments, the State delineated the separate evidence that supported
each of the charges. The State argued that the criminal confinement charge was
supported by evidence that Hunter confined Nernberger in the bathroom and
hit her head on the toilet. The State argued that the intimidation charge was
supported by Hunter telling Nernberger “if you call the cops I’m going to kill
your . . . family.” Tr. Vol. III pp. 18-19. The State argued that the
strangulation charge was supported by evidence showing that Hunter grabbed
Nernberger by the throat and squeezed until her breathing was impeded.
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Finally, the State argued that the domestic battery charge was proved by
evidence that Hunter hit Nernberger in the eye and mouth.
[13] The State did not rely on the evidence supporting the charges of battery,
strangulation, or intimidation as the evidence that Hunter confined Nernberger.
There was evidence of criminal confinement that went beyond the evidence
used to prove the commission of the other offenses. We conclude there is no
reasonable probability that the jury used the same evidentiary facts to support
Hunter’s conviction for criminal confinement that the jury used to support
Hunter’s convictions for intimidation, strangulation, and battery. Hunter’s
double jeopardy argument fails.
Conclusion
[14] Hunter has failed to demonstrate that his conviction for criminal confinement
violates the prohibition against double jeopardy. We affirm.
[15] Affirmed.
Riley, J., and Mathias, J., concur.
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