      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                      Feb 13 2015, 9:40 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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
      Kimberly A. Jackson                                       Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                J.T. Whitehead
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      William L. Holt,                                          February 13, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                11A01-1406-CR-269
              v.                                                Appeal from the Clay Superior
                                                                Court
                                                                The Honorable J. Blaine Akers,
      State of Indiana,                                         Judge
      Appellee-Plaintiff                                        Case No. 11D01-1312-FC-912




      Crone, Judge.


                                               Case Summary
[1]   William L. Holt appeals his convictions for class C felony battery resulting in

      serious bodily injury and class A misdemeanor domestic battery resulting in

      bodily injury. Holt argues that the trial court abused its discretion in instructing

      Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015    Page 1 of 9
      the jury, that the evidence is insufficient to support his convictions, and that his

      convictions violate double jeopardy principles. We conclude that the trial court

      did not abuse its discretion in instructing the jury and that the evidence is

      sufficient to support his convictions. However, we agree with Holt that his

      convictions violate double jeopardy principles. Therefore, we affirm his class C

      felony battery conviction and vacate his class A misdemeanor domestic battery

      conviction.


                                  Facts and Procedural History1
[2]   The facts most favorable to the verdicts show that Holt and V.H. had a

      romantic relationship and lived together from July through December 2013. In

      December 2013, they lived with Robert Grant, Jr., Brandy Thompson, and

      Patricia Linville. Grant and Thompson were engaged and slept in their own

      bedroom. Linville also had her own bedroom. Holt and V.H. slept on couches

      in the living room. Late one December evening, Thompson returned home

      from work. Linville was already in bed in her room. Thompson went to her

      bedroom and watched television with Grant. V.H. came into their bedroom to

      talk to them, while Holt remained in the living room.


[3]   Holt came to the bedroom door and threatened V.H. He was angry and said

      that he “was gonna punch her face in.” Tr. at 91. Grant told Holt that there




      1
       We remind Holt’s counsel that the statement of facts in an appellate brief should be stated in accordance
      with the appropriate standard of review as required by Indiana Rule of Appellate Procedure 46(6)(b).

      Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015           Page 2 of 9
      would be no fighting, and Holt returned to the living room. About fifteen

      minutes later, V.H. also returned to the living room. Holt started to argue with

      her, but she told him that she did not want to argue and lay down on a couch to

      go to sleep.


[4]   Shortly after V.H. left their bedroom, Thompson heard her screaming and

      crying. Grant and Thompson jumped up and went into the living room. Grant

      saw Holt on top of V.H. with his knee in her chest. Then he saw Holt hit her

      twice in the face. Grant told Holt, “[H]ey, that ain’t right. Get up out of my

      house. You know, you gonna go to jail.” Id. at 108.


[5]   Linville also came into the living room. She saw V.H. screaming and covered

      in blood. V.H. told Linville that Holt hit her. Thompson and Linville took

      V.H. to St. Vincent’s Hospital in Clay County. Holt also left. Grant stayed

      behind to clean up the blood.


[6]   Nurse Jennifer Reckerd treated V.H. at the hospital. Reckerd observed that

      V.H. was crying and moaning, her face was swollen and bruised, and there was

      blood in and around her mouth. Id. at 173. V.H. told Reckerd that she had

      been beat up by her “boyfriend.” Id. at 190. V.H. was in severe pain, which

      she described as ten on a scale of one to ten. Her appearance was consistent

      with her description of the pain. Hospital examination of V.H. revealed

      multiple fractures to her face. Hospital staff called the police and transferred

      V.H. to St. Vincent’s Hospital in Indianapolis for “a higher level of care.” Id. at

      194.


      Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015   Page 3 of 9
[7]   Before V.H. was transferred, the police arrived at the hospital. They were

      unable to interview V.H., but they photographed her injuries. They also took a

      statement from Thompson, and she gave them Grant’s address. The police

      went to Grant’s house. Grant showed them the scene of the battery, which they

      photographed. There was blood on the couch and walls. Grant also provided a

      statement and told them that Holt was probably at his ex-girlfriend Lynn

      Godsey’s house. The police then went to her house. She told them that she

      knew why they were there, allowed them in, and took them to Holt. Holt had

      told Godsey that he beat V.H. The police saw blood on Holt’s clothes, hand,

      and fingernails, and they arrested him.


[8]   The State charged Holt with class C felony battery resulting in serious bodily

      injury and class A misdemeanor domestic battery resulting in bodily injury.

      Following a two-day trial, the jury found Holt guilty as charged. The trial court

      entered judgment of conviction on both verdicts. Holt appeals.


                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                              instructing the jury.
[9]   The trial court gave the following jury instruction over Holt’s objection:

              A person who has specialized education, knowledge, or experience is
              permitted to express an opinion in those areas. You should evaluate
              this testimony as you would other evidence in this case. You should
              also consider the witness’ skill, experience, knowledge and familiarity
              with the facts in the case.



      Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015   Page 4 of 9
       Id. at 297.


[10]   “Instructing a jury is a matter assigned to trial court discretion, and an abuse of

       that discretion occurs when ‘the instructions as a whole, mislead the jury as to

       the law in the case.’” Hamm v. State, 826 N.E.2d 640, 641 (Ind. 2005) (quoting

       Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)). “In reviewing a trial court’s

       decision to give a tendered jury instruction, we consider (1) whether the

       instruction correctly states the law, (2) is supported by the evidence in the

       record, and (3) is not covered in substance by other instructions.” Munford v.

       State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v. State, 798

       N.E.2d 895, 899-900 (Ind. Ct. App. 2003)).


[11]   Holt argues that the instruction informed the jury regarding expert testimony

       and is unsupported by the evidence because no expert witness testified.2 The

       instruction refers to a person “who has specialized education, knowledge, or

       experience.” Tr. at 297. Reckerd, the nurse who treated V.H. for her injuries at

       the hospital, testified at Holt’s trial regarding her observation and opinion of

       V.H.’s injuries and pain. Nurse Reckerd had specialized education, knowledge,

       and experience in treating trauma patients. Accordingly, the trial court did not

       abuse its discretion in giving the jury instruction.




       2
        Holt concedes on appeal that the instruction correctly states the law and is not covered elsewhere.
       Appellant’s Br. at 11.

       Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015            Page 5 of 9
           Section 2 – The evidence is sufficient to establish that Holt
                       was the person who battered V.H.
[12]   Holt asserts that there was insufficient evidence to establish that it was he who

       battered V.H.3 In reviewing the sufficiency of the evidence, we consider only

       the evidence and reasonable inferences arising therefrom supporting the

       conviction without reweighing the evidence or judging witness credibility.

       Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We will affirm a conviction if

       there is substantial evidence of probative value such that a reasonable trier of

       fact could have concluded the defendant was guilty beyond a reasonable

       doubt.” Id.


[13]   Here, Grant testified that he saw Holt hit V.H. in the face two times. Linville

       testified that V.H. told her that Holt hit her. Nurse Reckerd testified that V.H.

       told her that her boyfriend beat her. Godsey testified that Holt came to her

       home late that night and told her that he beat V.H. Police saw blood at the

       scene of the battery and blood on Holt’s clothes, hand, and fingernails. This is

       more than sufficient evidence from which a reasonable factfinder could

       conclude beyond a reasonable doubt that Holt was the batterer. Holt’s




       3
         To convict Holt of class C felony battery, the State was required to prove beyond a reasonable doubt that
       he knowingly touched V.H. in a rude, insolent, or angry manner resulting in serious bodily injury.
       Appellant’s App. at 20; Ind. Code § 35-42-2-1. To convict Holt of class A misdemeanor domestic battery, the
       State was required to prove that Holt touched V.H. in a rude, insolent, or angry manner resulting in bodily
       injury and that V.H. was living with Holt as if she were his spouse. Id.; Ind. Code § 35-42-2-1.3. Holt does
       not challenge the sufficiency of the evidence as to any of the elements of these offenses other than the identity
       of the perpetrator.

       Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015              Page 6 of 9
       argument is merely an invitation to reweigh the evidence and judge witness

       credibility, which we must decline.


          Section 3 – Holt’s battery and domestic battery convictions
                      violate double jeopardy principles.
[14]   Holt contends that his convictions for class C felony battery resulting in serious

       bodily injury and class A misdemeanor domestic battery resulting in bodily

       injury violate the constitutional prohibition against double jeopardy and

       requests that we vacate his domestic battery conviction. The Indiana

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

       offense.” Ind. Const. art. 1, § 14. “Indiana’s Double Jeopardy Clause ...

       prevent[s] the State from being able to proceed against a person twice for the

       same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999). “[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.” Id.


[15]   “In addition to the instances covered by Richardson, ‘we 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.’” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002)

       (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)). One of these

       categories prohibits “conviction and punishment for a crime which consists of
       Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015   Page 7 of 9
       the very same act as another crime for which the defendant has been convicted

       and punished.” Id.; see also Richardson, 717 N.E.2d at 55 (Sullivan, J.,

       concurring).


[16]   To determine whether both of Holt’s convictions were based on the very same

       act, we consider the evidence, charging information, final jury instructions (if

       there was a jury), and arguments of counsel. Rutherford v. State, 866 N.E.2d

       867, 871 (Ind. Ct. App. 2007). Here, the charging information alleged that Holt

       “knowingly touch[ed] [V.H.] in a rude, insolent, or angry manner” to support

       both the class C felony battery and the class A misdemeanor domestic battery

       charges. The evidence at trial showed that Holt hit V.H. in the face and caused

       her injuries. The prosecutor argued that Holt’s act of hitting V.H. in the face

       constituted the “touching” for both charges. Tr. at 279, 281. Thus, the very

       same act formed the basis of both convictions. Furthermore, the fact that the

       battery conviction includes serious bodily injury and the domestic battery

       conviction includes bodily injury does not avoid the double jeopardy violation

       because V.H.’s bodily injury is encompassed within her serious bodily injury.

       The prosecutor told the jury as much at trial. Id. at 281. Therefore, we

       conclude that Holt’s class C felony battery and class A misdemeanor domestic

       battery convictions violate double jeopardy principles. See Vaughn v. State, 782

       N.E.2d 417, 422 n.9 (Ind. Ct. App. 2003) (concluding that convictions for

       battery and domestic battery arising out of same incident create double jeopardy

       violation), trans. denied, superseded by statute on other grounds; Adams v. State, 754

       N.E.2d 1033, 1035 (Ind. Ct. App. 2001) (concluding that Adams’s act of


       Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015   Page 8 of 9
       striking victim on head with ashtray was used to establish both the touching for

       two battery counts and the act causing substantial risk of bodily injury for

       criminal recklessness, thus creating double jeopardy violation).


[17]   “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. If

       it will not, one of the convictions must be vacated.” Richardson, 717 N.E.2d at

       54 (citation omitted). Because we cannot eliminate the violation by reducing

       either conviction to a less serious form of the same offense, we order that Holt’s

       conviction for class A misdemeanor domestic battery be vacated. See Jones v.

       State, 523 N.E.2d 750, 754 (Ind. 1998) (vacating battery conviction because

       information showed that identical touching was basis of second battery

       conviction), abrogated on other grounds by Richardson.


[18]   Affirmed in part and vacated in part.


       Friedlander, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A01-1406-CR-269 | February 13, 2015   Page 9 of 9
