MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  May 25 2016, 7:43 am

this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
                                                                              and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                           Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P.                     Attorney General of Indiana
Huntington, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jonathan J. Tipton,                                     May 25, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        35A05-1511-CR-1986
        v.                                              Appeal from the Huntington
                                                        Circuit Court
State of Indiana,                                       The Honorable Thomas M. Hakes,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        35C01-1412-F4-277



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016              Page 1 of 12
                                             Case Summary
[1]   Jonathan J. Tipton and his cousin broke into Colton Miller’s apartment and

      beat him with a tire iron. A jury convicted Tipton of level 1 felony burglary

      resulting in serious bodily injury and level 5 felony battery with a deadly

      weapon. The trial court sentenced him to consecutive terms of forty years for

      burglary and five years for battery, with twenty-five years executed and twenty

      years suspended to probation. On appeal, Tipton claims that his convictions

      violate Indiana double jeopardy principles and that the burglary and battery

      were a single continuous crime. He also claims that his sentence is

      inappropriate in light of the nature of the offenses and his character. We

      conclude that Tipton’s convictions violate Indiana double jeopardy principles,

      and therefore we remand with instructions to reduce the battery conviction to a

      class B misdemeanor and resentence him accordingly. We further conclude

      that the continuous crime doctrine is inapplicable. Finally, we conclude that

      Tipton has failed to establish that his burglary sentence is inappropriate, and

      therefore we affirm it.


                                 Facts and Procedural History
[2]   The facts most favorable to the verdicts are that Tipton worked with Miller at a

      factory in Huntington. On October 2, 2014, Miller invited Tipton to his

      apartment to drink beer with him and Cody Smith. Tipton arrived around

      midnight and drank beer until he and Miller started fighting. Miller and Smith

      pushed Tipton downstairs and out of the apartment and locked the door.



      Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016   Page 2 of 12
[3]   Tipton drove to the apartment that he shared with his cousin Andrew Barrus

      and Barrus’s girlfriend Andrea Reynolds. According to Reynolds, Tipton was

      “loud” and “drunk” and “cursing out” Miller. Tr. at 373. Tipton and Miller

      exchanged text messages and threatened to beat each other up. Tipton texted

      that “he would be outside,” and Miller responded that if Tipton came over

      Miller “was calling the cops.” Id. at 169. Tipton told Barrus and Reynolds that

      he “wanted to go back over and kick [Miller’s] ass.” Id. at 377. Barrus and

      Reynolds calmed Tipton down, but when Miller stopped responding to Tipton’s

      texts, Tipton “was like on a whole new warpath.” Id. Eventually, Barrus

      agreed to go to Miller’s apartment with Tipton. Tipton “was too drunk to drive

      and [Barrus] never drove,” so Reynolds agreed to drive them in Tipton’s black

      Dodge Charger, which was “fast” and “silent.” Id. at 379, 381. Before they left

      their apartment, Reynolds paused their surveillance camera system so that it

      would not record them leaving the premises. Tipton directed Reynolds to

      Miller’s apartment, and she was told to park down the street with the lights off

      and the engine running.


[4]   Inside the apartment, Miller and Smith heard someone pounding on the

      downstairs door. Smith, who had an outstanding warrant, opened Miller’s

      bedroom window and crawled out onto “a little slanted roof.” Id. at 104. He

      closed the window, jumped off the roof, and ran down the street. A few

      minutes later, Miller heard window blinds rustling in his bedroom and saw

      Tipton “coming out of the hallway into the living room.” Id. at 174. Miller hit

      Tipton, and the two started “wrestling around.” Id. Miller then saw Barrus,


      Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016   Page 3 of 12
      who hit him on top of the head with a tire iron. Miller fell onto a couch and

      tried to protect his head and face with his arms. Tipton and Barrus repeatedly

      punched and kicked Miller and struck him on the head with the tire iron.

      Miller experienced “an intense pain” that he had never felt before and “thought

      [he] was gonna die.” Id. at 178. Barrus “said we have to go,” and Tipton

      “kicked [Miller] a few more times” and landed a “really solid and blunt” blow

      to his head that “wasn’t a normal hit” before leaving the apartment. Id. at 179.


[5]   Miller’s wounds kept bleeding through t-shirts that he wrapped around his

      head, so he had his sister take him to the hospital. Miller was treated and kept

      overnight in the emergency room. He had lacerations to his scalp, face, and

      mouth that required stitches, staples, and tissue adhesive. He also had

      numerous abrasions and bruises on his face, arms, and torso, as well as swelling

      under his scalp. Miller experienced “intense” pain in his head that “actually

      got worse through the days.” Id. at 178. As a result of the attack, Miller “can’t

      pay attention to anything anymore” and has “memory issues.” Id. at 189.


[6]   Tipton, Barrus, and Reynolds returned to their apartment. Tipton and Barrus

      changed their clothes, used the washing machine, and hid their shoes, which

      they eventually burned. They talked about beating Miller’s head like a

      punching bag and laughed about kicking him so hard “they thought they broke

      his ribs.” Id. at 393. They also developed alibis and talked about deleting text

      messages between Tipton and Miller.




      Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016   Page 4 of 12
[7]   The State charged Tipton with level 1 felony burglary resulting in serious bodily

      injury and level 5 felony battery with a deadly weapon. A jury found him guilty

      as charged. The trial court imposed consecutive sentences of forty years for

      burglary and five years for battery, with twenty-five years executed and twenty

      years suspended to probation. This appeal followed.


                                      Discussion and Decision

            Section 1 – Tipton’s convictions violate Indiana double
                              jeopardy principles.
[8]   Tipton argues, and the State concedes, that his burglary and battery convictions

      violate Indiana double jeopardy principles. 1 Article 1, Section 14 of the Indiana

      Constitution states, “No person shall be put in jeopardy twice for the same

      offense.” 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 v. State, 717

      N.E.2d 32 (Ind. 1999). Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002); see also

      Richardson, 717 N.E.2d at 56 (recognizing that “to the extent that a defendant’s

      conviction for one crime is enhanced for engaging in particular additional

      behavior or causing particular additional harm, that behavior or harm cannot

      also be used as an enhancement of a separate crime. See Campbell v. State, 622

      N.E.2d 495, 500 (Ind. 1993) (reducing a Class C enhancement to a battery




      1
        Tipton’s double jeopardy argument misses the mark, but we agree with the State that remand is necessary
      for the reasons given in its brief.

      Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016            Page 5 of 12
      conviction because the very same serious bodily injury that was the basis of the

      Class C enhancement was also the basis of a Class A enhancement to a burglary

      conviction).”) (Sullivan, J., concurring). In Campbell, the defendant was

      charged with and convicted of class C felony battery based on his use of a

      deadly weapon as well as class B felony burglary based on serious bodily injury

      to the victim. Our supreme court agreed with this Court’s decision to remand

      with instructions to reduce the class C felony battery conviction to a class B

      misdemeanor based on state and federal double jeopardy violations: “Although

      the battery information alleged use of a deadly weapon and the burglary

      information alleged serious bodily injury, the basis for the elevation of both

      crimes was the same slashing of [the victim’s] face.” Campbell, 622 N.E.2d at

      500.


[9]   Here, Tipton’s burglary conviction was enhanced from a level 5 felony to a

      level 1 felony based on serious bodily injury to Miller, i.e., extreme pain. See

      Ind. Code § 35-43-2-1(4) (burglary statute); Appellant’s App. at 50 (charging

      information). And Tipton’s battery conviction was enhanced from a class B

      misdemeanor to a level 5 felony based on Tipton’s use of a deadly weapon, i.e.,

      a tire iron. See Ind. Code § § 35-42-2-1(f) (battery statute); Appellant’s App. at

      51 (charging information). The basis for the elevation of both crimes was the

      same striking of Miller with the tire iron, which is impermissible under




      Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016   Page 6 of 12
       Campbell. 2 Consequently, the proper remedy is to remand with instructions to

       reduce the level 5 felony battery conviction to a class B misdemeanor and

       resentence Tipton accordingly. See Sanders v. State, 734 N.E.2d 646, 652 (Ind.

       Ct. App. 2000) (“When two convictions are found to contravene double

       jeopardy principles, a 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. In the alternative, a reviewing court may vacate one of

       the convictions to eliminate a double jeopardy violation. In making that

       determination, we must be mindful of the penal consequences that the trial

       court found appropriate.”) (citations omitted), trans. denied. The trial court need

       not hold a sentencing hearing on remand. Cf. Ind. Code § 35-38-1-3 (“Before

       sentencing a person for a felony, the court must conduct a hearing to consider

       the facts and circumstances relevant to sentencing.”) (emphasis added).


             Section 2 – The continuous crime doctrine is inapplicable.
[10]   Tipton also claims that he is entitled to relief pursuant to the continuous crime

       doctrine, which is “a rule of statutory construction and common law limited to

       situations where a defendant has been charged multiple times with the same




       2
           In Pierce, Justice Boehm noted,

                Although Campbell was explicitly said to be superseded in the Court’s opinion in Richardson, 717
                N.E.2d at 49 n.36, only Justice Dickson and [then-Chief Justice Shepard] appear to have taken
                that view. Justice Sullivan concurred in Richardson, but authored a separate opinion that cited
                Campbell, apparently with approval. 717 N.E.2d at 56. The other two Justices [Selby and
                Boehm] did not comment on Campbell, but cited with approval other cases following the same
                doctrine.
       761 N.E.2d at 830 n.4.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016                Page 7 of 12
       offense.” Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015). “‘The continuous

       crime doctrine does not seek to reconcile the double jeopardy implications of

       two distinct chargeable crimes; rather, it defines those instances where a

       defendant’s conduct amounts only to a single chargeable crime.’” Id. (quoting

       Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002)). Our legislature, not

       the courts, “defines when a criminal offense is ‘continuous,’ e.g. not terminated

       by a single act or fact but subsisting for a definite period and covering

       successive, similar occurrences.” Id. Whether two offenses are a continuous

       crime is a question of law, which we review de novo. Id.


[11]   Tipton cites no relevant authority for the proposition that a burglary and a

       battery amount only to a single chargeable crime. In Hines, our supreme court

       disagreed with the notion that “the continuous crime doctrine may be judicially

       extended to two distinct criminal offenses[.]” Id. at 1220. Here, the burglary

       was complete when Tipton broke into Miller’s apartment, and his battery of

       Miller was a distinct offense. See Ind. Code §§ 35-43-2-1 (defining burglary as

       the breaking and entering of another person’s building or structure with intent

       to commit a felony in it), 35-42-2-1 (defining battery as the knowing or

       intentional touching of another person in a rude, insolent, or angry manner); 3

       see also Williams v. State, 771 N.E.2d 70, 75 (Ind. 2002) (holding that defendant’s

       burglary and intimidation convictions did not violate double jeopardy



       3
        Tipton emphasizes that he was charged with burglary resulting in serious bodily injury and battery with a
       deadly weapon that was used to inflict the injury, but the dispositive fact is that the burglary was complete
       when he broke into Miller’s apartment.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016                Page 8 of 12
       principles: “When Williams broke into the apartment, the burglary was

       complete. Williams then put a gun to [the victim’s] head—an act separate and

       distinct from the act that supported the burglary conviction.”). Consequently,

       we conclude that the continuous crime doctrine is inapplicable.


           Section 3 – Tipton has failed to establish that his burglary
                           sentence is inappropriate.
[12]   Finally, Tipton asks us to reduce his sentence pursuant to Indiana Appellate

       Rule 7(B), which provides that this Court “may 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.” “[S]entencing is principally a discretionary function

       in which the trial court’s judgment should receive considerable deference.”

       Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “[W]hether we regard a

       sentence as appropriate at the end of the day turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Id. at 1224.

       “[T]he question under Appellate Rule 7(B) is not whether another sentence is

       more appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       “When reviewing the appropriateness of a sentence under Rule 7(B), we may

       consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence is

       suspended.” Vermillion v. State, 978 N.E.2d 459, 469 (Ind. Ct. App. 2012).

       Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016   Page 9 of 12
       Tipton bears the burden of persuading us that his sentence is inappropriate. Id.

       at 468-69.


[13]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). Tipton was

       convicted of burglary resulting in serious bodily injury, a level 1 felony, which

       carries a sentencing range of twenty to forty years and an advisory sentence of

       thirty years. Ind. Code § 35-50-2-4. The trial court sentenced Tipton to forty

       years, with sixteen years suspended to probation. 4 On remand, Tipton will be

       sentenced for battery as a class B misdemeanor, which carries a maximum

       sentence of 180 days’ imprisonment. Ind. Code § 35-50-3-3.


[14]   Tipton acknowledges that his offenses were violent, but argues that “Miller

       testified that he initiated the fight with Tipton that preceded the burglary.”

       Appellant’s Br. at 11. After Tipton was ejected from Miller’s apartment, he had

       an opportunity to go home, cool off, and end the dispute. Instead, the

       intoxicated Tipton enlisted Barrus to join him in breaking into Miller’s

       apartment and pummeling him with their feet, fists, and a tire iron. 5 This brutal




       4
         Tipton complains that he received the maximum sentence but fails to acknowledge that more than a third of
       it was suspended.
       5
         Tipton states that “[t]here was no testimony that [he] himself used the tire iron to strike Miller.”
       Appellant’s Br. at 12. As noted above, Miller testified that Tipton landed a “really solid and blunt” blow to
       his head that “wasn’t a normal hit” before leaving the apartment. Tr. at 179. We agree with the State that a
       reasonable inference may be drawn that Tipton used the tire iron “to deliver his parting blow” and that, in
       any event, “Tipton called the shots and worked in tandem with Barrus.” Appellee’s Br. at 17.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016             Page 10 of 12
       attack landed Miller in the hospital with numerous lacerations and abrasions,

       and it also caused intense pain and lasting attention and memory deficits. The

       nature of Tipton’s offenses supports an enhanced sentence far above the

       advisory term.


[15]   The same is true for Tipton’s character. He tried to cover up his involvement in

       the crimes and laughed about his vicious assault on the outnumbered and

       helpless Miller. Tipton, who was twenty-three at the time of the attack, had

       been adjudicated a delinquent for conversion, strangulation, auto theft, criminal

       mischief, and operating a motor vehicle without a license. As an adult, he had

       been convicted of both class A and class B misdemeanor battery. Obviously,

       Tipton has failed to learn any lessons from his numerous encounters with the

       criminal justice system and has become only more violent over time. 6 Tipton

       has failed to persuade us that his forty-year burglary sentence is inappropriate,

       and therefore we affirm it. As a final consideration, we would have affirmed

       Tipton’s original forty-five-year sentence, so any time that he might receive for

       his class B misdemeanor battery conviction on remand will not render his

       aggregate sentence inappropriate.




       6
         Tipton observes that he had a daughter who was not yet born at the time of his offenses and that he pays
       child support. Presumably, Tipton knew that he was going to be a father and committed the offenses
       anyway, which reflects unfavorably on his character. He also observes that the trial court “did note [his]
       remorse for the offenses[.]” Appellant’s Br. at 12. In fact, the trial court stated, “[T]he fact that you indicate
       today that you are remorseful, I’ll accept the fact that you said that, but the Court always wonders whether in
       fact you are remorseful for the act, or remorseful for the fact that you’re sitting here today looking at a
       minimum of twenty years.” Tr. at 630.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016                 Page 11 of 12
[16]   Affirmed in part and remanded in part.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A05-1511-CR-1986 | May 25, 2016   Page 12 of 12
