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                MEMORANDUM DECISION - NOT FOR PUBLICATION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).
                                                2
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


                                            4
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


                                             5
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.




                                             6
