                                                                         FILED
                                                                    Sep 08 2017, 7:59 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark K. Leeman                                             Curtis T. Hill, Jr.
Leeman Law Office and                                      Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana                                        Katherine Modesitt Cooper
                                                           Deputy Attorney General
Andrew Achey                                               Indianapolis, Indiana
Logansport, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joshua Thompson,                                           September 8, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           09A04-1611-CR-2582
        v.                                                 Appeal from the Cass Superior
                                                           Court
State of Indiana,                                          The Honorable Richard
Appellee-Plaintiff                                         Maughmer, Judge
                                                           Trial Court Cause No.
                                                           09D02-1510-F5-89



May, Judge.




Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017                 Page 1 of 14
[1]   Joshua Thompson pled guilty to Level 6 felony domestic battery, 1 Level 6

      felony battery with moderate bodily injury, 2 and Level 5 felony battery resulting

      in serious bodily injury. 3 The trial court entered convictions on only two of the

      admissions: Level 6 felony domestic battery and Level 5 felony battery

      resulting in serious bodily injury. The court imposed consecutive sentences of

      two and four years, respectively.


[2]   In this direct appeal, Thompson contends: (1) his conviction of Level 5 felony

      battery resulting in serious bodily injury should be vacated because the charging

      information fails to allege a crime; (2) his conviction of two counts of battery

      for one touching constitutes impermissible double jeopardy; and (3) his six-year

      sentence is inappropriate in light of the nature of his offense. We affirm

      Thompson’s conviction of Level 5 felony battery resulting in serious bodily

      injury, vacate Thompson’s conviction Level 6 felony domestic battery on

      double jeopardy grounds, and remand for the court to resentence Thompson.



                                Facts and Procedural History
[3]   On July 28, 2015, Thompson and his ex-wife, Brooke, began to argue on the

      telephone about child support. Thompson drove to Brooke’s house to continue

      the argument. The argument became more heated and then, in front of their



      1
          Ind. Code §§ 35-42-2-1.3(a) & 35-42-2-1.3(b)(2) (2014).
      2
          Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(d)(1) (2014).
      3
          Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(f)(1) (2014).


      Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 2 of 14
      two-year-old child, Thompson shoved Brooke. Brooke tripped and fell over the

      curb, twisting her ankle and causing her pain. As she fell, Brooke struck

      Charlotte Wells, her boyfriend’s elderly grandmother, in the mouth, which

      caused Wells to fall and fracture her tailbone and a vertebra in her back.


[4]   The State initially charged Thompson with: (1) Level 6 felony domestic battery

      for pushing Brooke in a rude, insolent or angry manner causing injury to

      Brooke, in front of their child, see Indiana Code section 35-42-2-1.3; and (2)

      Level 6 felony battery with moderate bodily injury for pushing Brooke and

      causing her moderate bodily injury in the form of a twisted ankle and pain, see

      Indiana Code section 35-42-2-1(d)(1). Later, the State added a third charge

      alleging Thompson committed Level 5 felony battery of Brooke resulting in

      serious bodily injury to Wells. See Ind. Code § 35-42-2-1(f)(1).


[5]   The day before he was scheduled for a jury trial, Thompson pleaded guilty to all

      three counts without the benefit of a plea agreement. The trial court concluded

      the two Level 6 felony charges punished the same act and entered conviction on

      only the Level 6 felony domestic battery. The court suggested the Level 5

      felony battery was also the same crime as the Level 6 felonies for Double

      Jeopardy purposes, but the State insisted the crimes were distinguishable

      because they involved “separate victims.” (Sentencing Tr. at 24.) The court

      thereafter also entered a conviction of Level 5 felony battery resulting in serious

      bodily injury. The court sentenced Thompson to consecutive sentences of two

      and four years, respectively, for an aggregate sentence of six years.



      Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 3 of 14
                                 Discussion and Decision
                                                      Waiver

[6]   The State, relying on Mapp v. State, 770 N.E.2d 332, 335 (Ind. 2002), argues

      Thompson waived his challenges to the validity of his convictions by pleading

      guilty to the crimes. (See Appellee’s Br. at 7-9.) We acknowledge Mapp held:

      “Defendants waive a whole panoply of rights by voluntarily pleading guilty.

      These include the right to a jury trial, the right against self-incrimination, the

      right of appeal, and the right to attack collaterally one’s plea based on double

      jeopardy.” 770 N.E.2d at 334-35. Thus, a person who pleads guilty pursuant

      to an agreement with the State is limited, on direct appeal, to challenging only

      the merits of any sentencing decision that was not fixed by the plea agreement.

      Id. at 333.


[7]   However, Thompson did not have a plea agreement. Instead, he pled guilty in

      open court to all charged crimes without an agreement that might provide him

      any benefit. We have held that such a circumstance is distinguishable from

      Mapp, such that a defendant has not waived his right to challenge the validity of

      the convictions that were entered. See McElroy v. State, 864 N.E.2d 392, 396

      (Ind. Ct. App. 2007) (when guilty plea was entered without the benefit of a plea

      agreement, defendant “may raise a double jeopardy argument” on direct

      appeal), trans. denied.


[8]   We also note that declining to hold Thompson waived those arguments seems

      especially appropriate because, during his change of plea hearing, the trial court

      Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 4 of 14
      assured Thompson that it would not enter convictions that subjected him to

      double jeopardy:

              THE COURT:             Okay, if we get a factual basis today what
              will happen is that I will order a pre-sentence investigation report
              from the probation department so I can get to know you better
              and after I read the report and hearing evidence at a sentencing
              hearing I will decide what penalty to impose for these matters
              that you are pleading guilty to along with merging or joining
              these offenses if it’s appropriate to do so. For example if the
              third count consumes Counts 1 and 2 you will only be punished
              for one count do you understand what I am saying?


              DEFENDANT:                 Yes, sir.


              THE COURT:                 But I haven’t made that decision today.


      (Tr. Plea Hearing at 12-13.)


[9]   At sentencing, after discussion with counsel, the court “vacate[d]” the

      conviction of the second Level 6 felony, battery with moderate bodily injury,

      and entered sentences on the other two counts. (Tr. Sentencing at 27.) The

      court then told Thompson:

              I need to advise you because the action that I took today was
              discretionary you have the right to proceed under Criminal Rule
              11 which you need to consider. That rule says that you are
              entitled to take an appeal or file a motion to correct error from
              the action that I took today.


      (Id. at 29.)


      Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 5 of 14
[10]   In light of the court’s assurances to Thompson that he would be convicted of

       and sentenced for only those crimes that were proper to enter and that he could

       bring a direct appeal of the court’s decisions, justice demands we follow

       McElroy, rather than Mapp, and address the merits of Thompson’s assertions.


[11]   Before we turn to the merits of Thompson’s arguments, we note the State’s brief

       argues only that Thompson waived his arguments. The State does not suggest

       how we should deal with Thompson’s arguments if we should choose to

       address them on the merits. When an appellee fails to present argument on the

       merits of an appellant’s issue,

               we will treat this issue as one where no appellee’s brief was filed.
               In such cases, we need not develop an argument for the appellee
               and we apply a less stringent standard of review. Vandenburgh v.
               Vandenburgh, 916 N.E.2d 723, 725 (Ind. Ct. App. 2009). We
               may reverse if the appellant is able to establish prima facie error,
               which is error at first sight, on first appearance, or on the face of
               it. Id. The appellee’s failure to provide argument does not
               relieve us of our obligation to correctly apply the law to the facts
               in the record in order to determine whether reversal is required.
               Id.


       Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). We keep this

       standard in mind as we turn to the validity of Thompson’s convictions.


                                   Validity of Level 5 felony Conviction

[12]   Thompson first asserts his Level 5 felony conviction must be vacated because

               count 3 does not allege the crime of battery. A person is guilty of
               battery if they knowingly or intentionally touch another person in

       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 6 of 14
               a rude, insolent, or angry manner. Count 3 alleges that
               Thompson pushed his ex-wife and as a result his ex-wife
               accidentally knocked Wells to the ground. Wells was
               accidentally touched and she was touched by someone other than
               the defendant. The crime of battery requires the defendant to
               actually touch his victim. Count 3 does not allege that
               Thompson touched Wells and the facts establish that Thompson
               never touched Wells. The facts alleged in count 3, therefore, do
               not constitute any recognized crime under Indiana law.


       (Appellant’s Br. at 15.)


[13]   The question Thompson raises – whether the facts charged meet the statutory

       definition of battery – is one of statutory construction. See, e.g., Herron v. State,

       729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000) (reviewing whether Indiana’s

       statutory definition of “dependent” included unborn children, such that

       Herron’s ingestion of cocaine during pregnancy could constitute “neglect of a

       dependent”), trans. denied. Our primary goal when interpreting a statute is “to

       fulfill the legislature’s intent,” Day v. State, 57 N.E.3d 809, 812 (Ind. 2016), and

       we determine its intent by looking at the language in the statute. Id. “If that

       language is clear and unambiguous, we simply apply its plain and ordinary

       meaning, heeding both what it ‘does say’ and what it ‘does not say.’” Id.

       (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)). As construction of

       a statute is a question of law, we review it de novo. Id. at 811.


[14]   When the State charged Thompson with battery resulting in serious bodily

       injury as a Level 5 felony, it alleged:



       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 7 of 14
               Thompson did knowingly or intentionally push Brooke
               Thompson causing Brooke Thompson to fall backwards striking
               Charlotte Wells in the mouth causing Charlotte Wells to fall to
               the ground resulting in serious bodily injury, to-wit: fractured
               vertebrae in her back, contrary to the form of the statutes in such
               cases made and provided by I.C. 35-42-2-1(b)(1) and I.C. 35-42-
               2-1(f)(1) . . . .


       (Appellant’s App. Vol. II at 46.) Thompson asserts that allegation cannot state

       a crime because “battery requires the defendant to actually touch his victim.”

       (Appellant’s Br. at 15.) Thompson has not cited any authority to support his

       assertion, and he may be correct, but it depends on what Thompson means by

       “victim.” 4


[15]   The basic definition of battery, as relevant to our discussion, is that it occurs

       when one person “knowingly or intentionally . . . touches another person in a

       rude, insolent, or angry manner.” Ind. Code § 35-42-2-1(b)(1) (2014). If

       Thompson’s use of the word “victim” is in reference to “another person” who

       must be touched for battery to have occurred, then Thompson is correct that

       battery requires a defendant “to actually touch his victim.” (Appellant’s Br. at

       15.)


[16]   If, however, Thompson was using the word “victim” in reference to the person

       who received the injuries as a result of the battery, then the plain language of




       4
        Interestingly, confusion about the identity of the “victim” also caused the trial court to enter two
       convictions in violation of Thompson’s right to be free from double jeopardy, which we will address in the
       next section of this opinion.

       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017                     Page 8 of 14
       the battery statute demonstrates he is incorrect. Class B misdemeanor battery,

       which requires the touching of “another person,” becomes a Class A

       misdemeanor if it “results in bodily injury to any other person,” Ind. Code § 35-

       42-2-1(c) (2014) (emphasis added); a Level 6 felony if it “results in moderate

       bodily injury to any other person,” Ind. Code § 35-42-2-1(d)(1) (2014) (emphasis

       added); a Level 5 felony if it “results in serious bodily injury to another person,”

       Ind. Code § 35-42-2-1(f)(1) (2014) (emphasis added); a Level 4 felony if it

       “results in serious bodily injury to an endangered adult,” Ind. Code § 35-42-2-1(h)

       (2014) (emphasis added); a Level 3 felony “if it results in serious bodily injury to

       a person less than fourteen (14) years of age if the offense is committed by a

       person at least eighteen (18) years of age,” Ind. Code § 35-42-2-1(i) (2014)

       (emphasis added); or a Level 2 felony if it “results in the death of . . . [a] person

       less than fourteen [or] [a]n endangered adult.” Ind. Code § 35-42-2-1(j) (2014)

       (emphasis added).


[17]   Nothing in those subsections defining the elevated versions of battery that can

       be found based on injuries resulting from the battery requires the injured

       “person” to be the same “person” who was touched. See generally Ind. Code §

       35-42-2-1 (2014). The only requirement is that the battery “results in” the

       injury. See generally id. Because “it is just as important to recognize what a

       statute does not say as it is to recognize what it does say,” Herron, 729 N.E.2d

       at 1010, we hold the statutory definition of battery does not preclude a charge

       based on one person being touched and a second person being injured as a

       result of that touching.

       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 9 of 14
[18]   The State charged Thompson with Level 5 battery based on the facts he pushed

       Brooke and, as a consequence, Wells sustained serious bodily injury. That

       charge comports with the statutory definition of battery provided by our

       legislature and we, therefore, affirm Thompson’s conviction of Level 5 felony

       battery.


                                                Double Jeopardy

[19]   Next, Thompson asserts his two convictions of battery violate his constitutional

       right to be free of double jeopardy. See Ind. Const. art. 1, § 14 (“No person

       shall be put in jeopardy twice for the same offense.”). That clause was intended

       to prevent the State from proceeding against a person more than once for the

       same crime. Wharton, 42 N.E.3d at 541. In particular, Thompson alleges his

       convictions violate the “actual evidence test.” See Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999), holding modified by Garrett v. State, 992 N.E.2d 710

       (Ind. 2013). The actual evidence test requires us to “determine whether each

       challenged offense was established by separate and distinct facts.” Id. at 53.


[20]   More than thirty-five years ago, our court considered whether two convictions

       of battery could be imposed for a single “beating . . . upon one victim”:

               McGaughey argues her Fifth Amendment protection against
               double jeopardy has been violated because she was found guilty
               of two offenses: battery with a deadly weapon and battery
               resulting in serious bodily injury. Ind. Code 35-42-2-1(3) was the
               basis for the two counts of battery. This section provides:




       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 10 of 14
                        A person who knowingly or intentionally touches another
                        person in a rude, insolent, or angry manner commits
                        battery, a class B misdemeanor. However, the offense is:


                        (3) A class C felony if it results in serious bodily injury to
                        any other person or if it is by means of a deadly weapon.


               We are of the opinion that the statute defines but one offense,
               with subsection 3 stating two alternative factual situations which,
               if proven, raise the level of the offense from a class B
               misdemeanor to a class C felony.


                        The elements of the basic offense are: (1) knowingly or
                        intentionally (2) touching another person (3) in a rude,
                        insolent or angry manner.


                        More severe punishment is provided when there are
                        additional elements present ....


                        The class C felony, has the three basic elements plus either
                        ‘serious bodily, injury’ or commission by means of a
                        ‘deadly weapon’.


               “Commentary,” West’s A.I.C. 35-42-2-1, at 300.


               Here, there was one beating, at one place, at one time inflicted
               upon one victim, there, but one crime was committed.


       McGaughey v. State, 419 N.E.2d 184, 185 (Ind. Ct. App. 1981).


[21]   Similarly, here, there was but “one beating, at one place, at one time inflicted

       upon one victim,” id., such that only one crime was committed. The factual


       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017      Page 11 of 14
       basis provided for Thompson’s crimes at the change of plea hearing indicated

       he shoved Brooke only once, and that one shove in front of their son resulted in

       Brooke’s twisted ankle and Wells’ fall and injury. Thus, Thompson’s single

       push of Brooke resulted in both of Thompson’s convictions, in violation of his

       right to be free of double jeopardy. See, e.g., Wood v. State, 999 N.E.2d 1054,

       1065-66 (Ind. Ct. App. 2013) (defendant’s three convictions of leaving the scene

       of a boating accident -- two counts enhanced from Class C misdemeanors to

       Class C felonies because the accident resulted in the death of two people and

       one enhanced to a Class D felony because the accident resulted in serious

       bodily injury to one person – subjected defendant to double jeopardy when he

       left the scene of only one accident), trans. denied, cert. denied 135 S. Ct. 250

       (2014); Wharton, 42 N.E.3d at 541 (Double jeopardy clause violated when

       defendant’s convictions of operating while intoxicated and of operating with a

       BAC of .110 both resulted “from the same actions, on the ‘same date, [at] the

       same location.’”); McGaughey, 419 N.E.2d at 185 (one beating of one victim at

       one time and place is a single crime, even if facts support multiple separate

       enhancements of that single crime).


[22]   When a double jeopardy violation has occurred, the “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.” Richardson, 717 N.E.2d

       at 54. However, if doing so will not eliminate the violation, one of the

       convictions must be vacated. Id. Reducing either of Thompson’s battery

       convictions will not eliminate the double jeopardy violation, as each of them is


       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 12 of 14
       based on the same touching of Brooke. See Noble v. State, 734 N.E.2d 1119,

       1125-26 (Ind. Ct. App. 2000) (“Reducing one of the felony battery convictions

       to a lesser form of battery will not eliminate the double jeopardy violation

       because . . . a lesser battery conviction would still arise out of the same facts as

       the remaining felony battery conviction.”), trans. denied. We therefore vacate

       Thompson’s conviction of Level 6 felony domestic battery and remand for the

       trial court to resentence Thompson for the Level 5 felony battery. 5



                                                Conclusion
[23]   Indiana’s statutory definition of battery does not require the person who is

       battered be the same person who is injured as a result of the battery; thus, the

       third count of the charging information states a crime for which Thompson

       could be convicted. Because Thompson’s convictions of both Level 6 felony

       domestic battery and Level 5 felony battery relied on the same, single act of

       touching by Thompson, his conviction of both crimes subjected him to double

       jeopardy. We vacate Thompson’s conviction of Level 6 felony domestic battery

       and remand for the trial court to enter a conviction of and sentence for only

       Level 5 felony battery.


[24]   Affirmed in part, reversed in part, and remanded.




       5
         As we hold Thompson’s convictions constitute double jeopardy and remand for the court to resentence him
       for a single conviction, we need not address the alleged inappropriateness of his sentence.

       Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017                Page 13 of 14
Brown, J., and Pyle, J., concur.




Court of Appeals of Indiana | Opinion 09A04-1611-CR-2582 | September 8, 2017   Page 14 of 14
